PRADIP H. DAIYA, MUMBAI v. ITO 16(2)(1), MUMBAI

ITA 172/MUM/2010 | 2001-2002
Pronouncement Date: 29-07-2011 | Result: Dismissed

Appeal Details

RSA Number 17219914 RSA 2010
Assessee PAN AABPD9939L
Bench Mumbai
Appeal Number ITA 172/MUM/2010
Duration Of Justice 1 year(s) 6 month(s) 22 day(s)
Appellant PRADIP H. DAIYA, MUMBAI
Respondent ITO 16(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 29-07-2011
Date Of Final Hearing 26-07-2011
Next Hearing Date 26-07-2011
Assessment Year 2001-2002
Appeal Filed On 07-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH MUMBAI. BEFORE SHRI D. MANMOHAN VICE PRESIDENT AND SHRI PRAMOD KUMAR ACCOUNTANT MEMBER I.T.A NO.172/ MUM/2010 ASSESSMENT YEAR: 2001-02 PRADIP H DAIYA .. APPELLANT 6023 INDIRA APT. M.L. DAHANUKAR MARG MUMBAI-26 PA NO.AABPD 9939 L VS INCOME TAX OFFICER 16(2)(1) . RESPONDEN T MATRU MANDIR TARDEO MUMBAI. APPEARANCES: BHUPENDRA SHAH FOR THE APPELLANT ALEXANDER CHANDY FOR THE RESPONDENT DATE OF HEARING : 26-07-2011 DATE OF PRONOUNCEMENT: 29-07-2011 O R D E R PER PRAMOD KUMAR: 1. THE SHORT ISSUE THAT WE ARE REQUIRED TO ADJUDICATE IN THIS APPEAL IS WHETHER OR NOT CIT(A) WAS JUSTIFIED IN UPHOLDING PENALTY OF ` .1 27 655 IMPOSED ON THE ASSESSEE U/S.271(1)(C) OF THE INCOME TAX ACT 1961 FOR THE ASSESSMENT YEAR 2001- 02. 2. THE RELEVANT MATERIAL FACTS SO FAR AS NECESSARY FOR DISPOSAL OF THE APPEAL ARE LIKE THIS. THE ASSESSEE IS AN INDIVIDUAL. DURING THE C OURSE OF HIS ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE CLAIMS TO HAVE RECEIVED GIFTS AGGREGATING TO ` .4 57 621 BUT GENUINENESS OF THESE GIFTS AND FINANCIAL CAPACITY I.T.A NO.172/ MUM/2010 ASSESSMENT YEAR: 2001-02 2 OF DONORS REMAINED TO BE PROVED. ACCORDINGLY AN AM OUNT OF ` .4 57 621 WAS ADDED TO HIS INCOME AS UNEXPLAINED CASH CREDIT. AGGRIEVED ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT DID NOT BOTHER TO APPE AR BEFORE HIM. THE CIT(A) DISMISSED THE APPEAL EXPARTE AND CONFIRMED THE ACTION OF THE ASSESSING OFFICER. I T WAS IN THIS BACKDROP THAT PENALTY PROCEEDINGS U/S.271(1 )(C) WERE INITIATED AGAINST THE ASSESSEE. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAS FAILED TO ESTABLISH FINANCIAL CAPACITY OF DONORS AND TO FURNISH T HE SUPPORTING EVIDENCE FOR HIS CLAIM IN REFERENCE TO RECEIPT BY WAY OF DISTRIBUTION OF ASSETS OF HIS FATHER AND GRANDFATHER. HE ACCORDINGLY LEVIED PENALTY U/S.27 1(1)(C) AS EQUIVALENT TO 100% OF TAX SOUGHT TO BE EVADED WHICH WORKED OUT TO ` .1 27 655. AGGRIEVED ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) BUT WITHOUT AN Y SUCCESS. LEARNED CIT(A) CONFIRMED THE PENALTY AND OBSERVED AS FOLLOWS: THE SUBMISSIONS WHICH WERE MADE BEFORE THE AO WERE NOT CONSIDERED SUFFICIENT. IN APPEAL ALSO THE APPELLANT H AS NOT FILED ANY LETTER OF ADDITIONAL SUBMISSIONS. HE HAS JUST FILED A CO PY OF THE SUBMISSIONS MADE DURING THE COURSE OF PENALTY PROCEEDING S. HE HAS FILED DETAILS OF EVIDENCES OF GIFTS AND CONFIRMATIONS O F PARTIES SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE COPY OF THE SAVING BANK PASSBOOK OF HIS FATHER. HOWEVER TH ESE DETAILS WERE ALREADY FILED BEFORE THE AO WHO MADE THE ADDI TION AND THIS ADDITION WAS SUBSEQUENTLY CONTESTED IN FIRST APPEAL AND THE SAME WAS CONFIRMED BY THE CIT(A). THE ASSESSEE DID NOT FILE ANY SECOND APPEAL AGAINST THE ORDER OF THE CIT(A). HENCE THE ORDER O F THE CIT(A) BECAME FINAL. THE CIT(A) AND THE AO HAVE BOTH HELD THAT T HE GIFTS CLAIMED TO HAVE BEEN RECEIVED BY THE APPELLANT WERE NOT GENUIN E AND THE APPELLANT DID NOT DISCHARGE HIS ONUS IN PROVING THE GI FTS AS GENUINE. UNDER SUCH CIRCUMSTANCES THE GIFTS WERE HELD TO BE BOG US AND ADDITION WAS MADE TO THE INCOME OF THE APPELLANT TO THE EXTENT OF ` .4 57 621 AS UNEXPLAINED CREDITS. UNDER SUCH CIRCUMSTA NCES PENALTY U/S.271(1)(C) IS CLEARLY ATTRACTED IN THE CASE AS THE A PPELLANT HAD SHOWN CREDITS IN HIS INCOME FOR WHICH THE EXPLANATION FILED WAS FOUND TO BE NOT GENUINE AND THIS ADDITION WAS NOT SUBSEQUENTL Y CONTESTED IN SECOND APPEAL AFTER BEING CONFIRMED BY THE CIT(A). H ENCE THIS WAS A CLEAR CASE OF CONCEALMENT OF INCOME AND THE ACTION O F THE AO IN LEVYING PENALTY U/S.271(1)(C) WAS ABSOLUTELY CORRECT. IN APPEAL ALSO THE APPELLANT FAILED TO GIVE ANY PROPER REPLY OR WR ITTEN SUBMISSIONS AS TO WHY PENALTY SHOULD BE CANCELLED. HE MERELY FILED THE SUB MISSIONS FILED BEFORE THE AO. UNDER SUCH CIRCUMSTANCES THE PE NALTY LEVIED BY THE AO STANDS CONFIRMED AND THE APPEAL OF THE ASSESSEE ST ANDS DISMISSED. 3. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL B EFORE US. I.T.A NO.172/ MUM/2010 ASSESSMENT YEAR: 2001-02 3 4. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE AS ALSO THE APPLI CABLE LEGAL POSITION. 5. WE FIND THAT THE EXPLANATION GIVEN BY THE ASSESSEE H AS NOT BEEN SUBSTANTIATED AT ANY STAGE. NO DOUBT IT HAS BEEN SUBMIT TED THAT THE ASSESSEE HAS RECEIVED GIFTS BONAFIDE AND A PART OF THESE AMOUNTS WE RE RECEIVED OUT OF ADMINISTRATION OF ESTATE OF GRANDFATHER BUT THERE I S NO MATERIAL WHATSOEVER TO SUBSTANTIATE FACTUAL ELEMENTS EMBEDDED IN THESE CONTENT IONS. WHEN AN ASSESSEE MAKES AN EXPLANATION BUT DOES NOT SUBSTANTIATE THE SAME DEEMING FICTION OF EXPLANATION 1 TO SECTION 271(1)(C) IS CLEARLY ATTRAC TED. EVEN BEFORE US LEARNED COUNSEL HAS NOT FILED ANY DOCUMENT OR EVIDENCE IN SUPP ORT OF ASSESSEES STAND OF GIFTS HAVING BEEN RECEIVED BONAFIDE WHICH OUGHT TO B E TREATED AS DULY EXPLAINED. WE THEREFORE SEE NO REASONS TO DISTURB THE FINDINGS OF THE AUTHORITIES BELOW. WE CONFIRM THE SAME. 6. IN THE RESULT APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 29 TH JULY 2011 SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI DATED 29 TH JULY 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS) 27 MUMBAI 4. COMMISSIONER OF INCOME TAX CITY XVI MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH C MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI