Karam Chand,, v. ITO, Ward-2,,

ITA 233/DEL/2004 | 1994-1995
Pronouncement Date: 30-09-2011 | Result: Allowed

Appeal Details

RSA Number 23320114 RSA 2004
Assessee PAN TOBER1994D
Bench Delhi
Appeal Number ITA 233/DEL/2004
Duration Of Justice 7 year(s) 8 month(s) 14 day(s)
Appellant Karam Chand,,
Respondent ITO, Ward-2,,
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 30-09-2011
Date Of Final Hearing 30-08-2011
Next Hearing Date 30-08-2011
Assessment Year 1994-1995
Appeal Filed On 16-01-2004
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE G.E. VEERABHADRAPPA HON'BLE VICE-PRESIDENT AND SHRI RAJPAL YADAV: HONBLE JUDICIAL MEMBER ITA NO.233/DEL/2004 & 5046/DEL/2007 ASSESSMENT YEAR: 1994-95 SHRI KARAM CHAND PROP. VS. INCOME-TAX OFFICER M/S. KARAM CHAND & BROS. WARD-2 CIRCULAR ROAD PANIPAT (HR.) PANIPAT. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ASHWAN I TANEJA ADV. RESPONDENT BY: SHRI RS NEGI SE NIOR DR ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE ORDERS OF LEARNED CIT(APPEALS) DATED 17 .11.2003 AND 16.2.2007 PASSED FOR ASSESSMENT YEAR 1994-95. IN ITA NO.233/D EL/2004. THE ASSESSEE HAS TAKEN SEVEN GROUNDS OF APPEAL WHICH ARE NOT IN CONSONANCE WITH RULE 8 OF THE ITAT'S RULES THEY ARE DESCRIPTIVE AND ARGUM ENTATIVE IN NATURE. IN BRIEF THE GRIEVANCE OF ASSESSEE REVOLVES AROUND TH REE ISSUES NAMELY; (A) RE- OPENING OF ASSESSMENT UPHELD BY THE LEARNED CIT(APP EALS) IS BAD IN LAW (B) THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING TH E ADDITION OF RS.5 50 000 AND (C) LEARNED CIT(APPEALS) ERRED IN C ONFIRMING CHARGING OF INTEREST UNDER SEC. 234A B AND C OF THE INCOME-TAX ACT 1961. IN ITA NO.5046/DEL/2007 THE ASSESSEE IS CHALLENGING CONFI RMATION OF PENALTY 2 AMOUNTING TO RS.2 19 000 BY THE LEARNED CIT(APPEALS ) UNDER SEC. 271(1)(C) OF THE INCOME-TAX ACT 1961. ITA NO. 233/DEL/2004: 2. THE FIRST ISSUE IN THIS APPEAL RELATES TO RE-OPE NING OF ASSESSMENT BY ISSUANCE OF A NOTICE UNDER SEC. 148 OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME ON 31 ST OCTOBER 1994 DECLARING AN INCOME OF RS.89 950. THI S RETURN WAS PROCESSED UNDER SEC. 143(1)(A) OF THE ACT ON TH E RETURNED INCOME ON 22.2.1995. ASSESSING OFFICER HAD RECEIVED AN INFORM ATION FROM THE INVESTIGATION WING OF THE INCOME-TAX DEPARTMENT AS WELL AS FROM THE OFFICE OF ENFORCEMENT DIRECTORATE NEW DELHI THAT THEY HAV E UNCOVERED CERTAIN MONEY LAUNDERING AGENTS WHO WERE ARRANGING BOGUS F OREIGN GIFTS FROM CERTAIN NRE AGENT ON PAYMENT OF EQUAL CASH AND PRE MIUM. HE FURTHER FOUND THAT ASSESSEE HAD RECEIVED A GIFT OF RS. 5 LA CS ON 24.5.1993 FROM ONE SUCH NRE ACCOUNT BEARING NO.320170274 WITH AMERICAN EXPRESS BANK NEW DELHI IN THE NAME OF DR. VISHVADARSHI JAISWAL NRI. ASSESSING OFFICER FORMED AN OPINION THAT IT WAS A BOGUS GIFT WHICH HA S BEEN ARRANGED BY THE ASSESSEE AFTER MAKING PAYMENT AND COMMISSION FOR SU CH A GIFT THUS AN INCOME CHARGEABLE TO TAX AMOUNTING TO RS.5 LACS HAD ESCAPED ASSESSMENT IN 3 THE HANDS OF THE ASSESSEE FOR ASSESSMENT YEAR 1994- 95. HE RECORDED THE REASONS FOR RE-OPENING OF ASSESSMENT TOOK APPROVAL AND THEN ISSUED NOTICE UNDER SEC. 148 OF THE ACT. IN RESPONSE TO THE NOTIC E ASSESSEE FILED A LETTER DATED 29.6.2001 STATING THEREIN THAT ORIGINAL RETUR N FURNISHED UNDER SEC. 139(1) MAY BE TREATED AS RETURN FILED IN RESPONE TO THIS NOTICE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE CHALL ENGING THE ORDERS OF REVENUE AUTHORITIES SUBMITTED THAT ASSESSING OFFICE R HAS REOPENED THE ASSESSMENT ON THE BASIS OF INCORRECT FACTS. ACCORDI NG TO HIM THE ENFORCEMENT DIRECTORATE HAS RECORDED THE STATEMENT OF SHRI V.D. JAISWAL AN NRI ON 12.12.1995 UNDER SEC. 40 OF THE FOREIGN REGU LATION ACT WHEREIN HE HAS STATED THAT HE HAD OPENED EIGHT DIFFERENT NRE A CCOUNTS IN DIFFERENT BANKS DURING THE YEAR 1992-93 INCLUDING THE ACCOUNT S IN THE AMERICAN EXPRESS BANK FROM WHERE GIFTS TO THE ASSESSEE HAS BEEN MADE. THIS STATEMENT WAS RETRACTED BY DR. VD JAISWAL AND IT WA S ALLEGED THAT STATEMENT WAS TAKEN UNDER DURESS AND UNDER THE THREAT OF DETE NTION. THE ENFORCEMENT DIRECTORATE DID NOT FIND ANY VIOLATION OF FERA AGAI NST DR. VD JAISWAL AND DROPPED ALL THE PROCEEDINGS MEANING THEREBY THERE WAS NO MATERIAL POSSESSED BY THE ASSESSING OFFICER ON WHOSE ANALYSI S HE COULD FORM AN OPINION THAT INCOME HAS ESCAPED ASSESSMENT. HE FURT HER CONTENDED THAT 4 ASSESSING OFFICER HAS ACCEPTED THE MATERIAL TRANSMI TTED BY INVESTIGATION WING AND ENFORCEMENT DIRECTORATE WITHOUT MAKING ANY PROPER ANALYSIS. FOR BUTTRESSING HIS CONTENTIONS HE RELIED UPON A LARGE NUMBER OF DECISIONS EXHIBITING A COMMON THREAD RUNNING THROUGH ALL THE SE DECISIONS TO THE EFFECT THAT ASSESSING OFFICER HAS TO APPLY HIS INDEPENDENT MIND WHILE MAKING ANALYSIS OF THE MATERIAL AND HARBORING A BELIEF THA T INCOME HAS ESCAPED ASSESSMENT. HE SHOULD NOT BE INFLUENCED BY THE MAND ATE OF ANY HIGHER AUTHORITY. THEREFORE WE WOULD LIKE TO MAKE A REFER ENCE TO SOME OF THE DECISIONS NAMELY CIT VS. ATLAS CYCLES INDUSTRIES REPORTED IN 180 ITR 319 (P&HC) CIT VS. ATUL JAIN REPORTED IN 299 ITR 383 ( D.H.C) AND CIT VS. INDIAN SUGAR REPORTED IN 303 ITR 155. HE FURTHER CO NTENDED THAT LEARNED ADDL. CIT(APPEALS) GRANTED APPROVAL UNDER SEC. 151( 2) WITHOUT APPLICATION OF MIND AND WITHOUT GIVING HIS OWN REASONS THEREFO RE THE ASSESSMENT ORDER DESERVES TO BE QUASHED. HE RELIED UPON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CENTRAL INDIA ELECTRIC SUPPLY CO. LTD. VS. ITO REPORTED IN 333 ITR 237. HE ALSO MADE A REFERENCE TO THE DEC ISION OF HON'BLE SUPREME COURT IN THE CASE OF CHANGAMAL RAJPAL VS. S .P. CHAILLEYA REPORTED IN 79 ITR 603. ON THE OTHER HAND LEARNED DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES BELOW. HE DREW OUR ATTENTION TO WARDS PAGE NO. 59 OF 5 THE PAPER BOOK WHEREIN LEARNED ADDL.CIT HAS OBSERVE D THAT HE IS SATISFIED THAT IT IS A FIT CASE FOR ISSUE OF NOTICE UNDER SEC . 148 OF THE ACT. 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. ON AN ANALYSIS OF THE RECORD WE FIND THAT ENFORCEMENT DIRECTORATE WAS ABLE TO LAY ITS HANDS ON THE DETAIL S OF LARGE NUMBER OF NRE ACCOUNTS WHICH WERE USED FOR GIVING BOGUS GIFTS. T HOUGH ULTIMATELY IT WAS NOT SUCCESSFUL TO FRAME THE CHARGES AGAINST ALL THO SE PERSONS ON VIOLATION OF FERA REGULATION BUT FROM PERUSAL OF FOREIGN EXCHANG E REGULATION APPELLATE BOARDS ORDER DATED 30.6.1997 AND 29.7.19 97 IT REVEALED THAT THE LEARNED FOREIGN EXCHANGE REGULATION APPELLATE BOARD HAD CONSIDERED THE APPEAL OF MORE THAN 77 PEOPLE AND REMITTED THE ISSU E TO THE ADJUDICATING AUTHORITY. WE ARE NOT MAKING REFERENCE OF THESE DET AILS TO SHOW THAT CONCRETE EVIDENCE WAS EXISTING AT THAT PARTICULAR POINT OF T IME. OUR OBJECT OF REFERRING THESE ORDERS AND THE STATEMENT RECORDED BY THE FERA AUTHORITIES IS ONLY WHETHER PRIMA FACIE ANY AUTHORITY CAN FORM AN OPINI ON THAT CREDIT ENTRY FOUND IN THE CAPITAL ACCOUNT EXHIBITING A GIFT FRO M SUCH ACCOUNT WAS BOGUS ONE OR NOT WHICH HAS ESCAPED ASSESSMENT. HON'BLE SU PREME COURT IN THE CASE OF RAYMOND WOOLENS MILLS LTD. VS. ITO REPORTED IN 236 ITR 34 HAS OBSERVED THAT SUFFICIENCY OF REASONS CANNOT BE A GR OUND TO TEST THE REOPENING 6 OF THE ASSESSMENT CORRECTNESS QUANTITY AND QUALIT Y OF THE MATERIAL IS TO BE SEEN AS A PRIMA FACIE AT THIS STAGE. ASSESSING OFFI CER IS NOT REQUIRED TO PROVE CONCLUSIVELY BEFORE ISSUING NOTICE UNDER SEC. 148 T HAT INCOME HAS ESCAPED ASSESSMENT. THE ONLY REQUIREMENT IS THAT HE SHOULD HAVE SOME INFORMATION WHICH HAS A DIRECT NEXUS IN HELPING HIM TO FORM THE BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. THEREFORE TAKING INTO CONSIDER ATION ALL THE MATERIAL FACTS AND CIRCUMSTANCES WE ARE OF THE VIEW THAT TH E ASSESSING OFFICER WAS POSSESSING SUFFICIENT MATERIAL BEFORE ISSUANCE NOTI CE UNDER SEC. 148 OF THE ACT. THERE IS NO SCRUTINY ASSESSMENT IN THIS CASE. THE RETURN OF THE ASSESSEE WAS ACCEPTED ONLY UNDER SEC. 143(1)(A) OF THE ACT. THE CONTENTION OF THE ASSESSEE THAT ADDL. CIT GRANTED APPROVAL WITHOUT AP PLICATION OF MIND IS CONCERNED WE FIND THAT LEARNED CIT HAS RECORDED TH AT IT IS A FIT CASE TO REOPEN THE ASSESSMENT. SUCH AN OBSERVATION WAS MADE AFTER LOOKING INTO THE SURROUNDING FACTS I.E. STATEMENT OF SHRI VD JAISWAL STATEMENT OF SHRI AMARJIT SINGH ANEJA AN ADVOCATE WHO ARRANGED SUCH GIFTS ETC. ASSESSING OFFICER HAS SENT THE RECORD ALONG WITH HIS REASONS TO THE ADDL. CIT. THEREFORE TAKING INTO CONSIDERATION ALL THESE FACT S WE DO NOT FIND ANY MERIT IN THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE A SSESSEE THAT ASSESSING OFFICER HAS ERRED IN REOPENING OF THE ASSESSMENT. 7 6. IN THE NEXT GROUND OF APPEAL GRIEVANCE OF ASSE SSEE IS THAT LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION O F RS.5 50 000. SUM OF RS. 5 LACS WERE ADDED ON ACCOUNT OF ALLEGED GIFTS W HEREAS RS.50 000 HAS BEEN ADDED ON THE GROUND THAT ASSESSEE MUST HAVE SP ENT 10% OF THE AMOUNT REPRESENTING ALLEGED BOGUS GIFTS TOWARDS PAYMENT OF PREMIUM FOR ARRANGING SUCH GIFTS. 7. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE AMOUNT WAS RECEIVED THRO UGH AN ACCOUNT PAYEE DRAFT. IT WAS CREDITED IN THE BANK ACCOUNT OF THE A SSESSEE. STATEMENT OF THE BANK ACCOUNTS OF DONOR AND DONEE WERE PRODUCED BEFO RE THE ASSESSING OFFICER. A GIFT DEED WAS EXECUTED WHICH WAS PRODUCE D BEFORE THE ASSESSING OFFICER. THE DONOR HAS CONFIRMED MAKING OF GIFT. TH E ONLY EVIDENCE POSSESSED BY THE ASSESSING OFFICER IS THE STATEMENT OF DR. JAISWAL RECORDED BY THE ENFORCEMENT OFFICER ON 12.12.1995. ASSESSING OFFICER HAS DISBELIEVED THE GIFT BASICALLY FOR TWO REASONS NAM ELY THERE IS NO BLOOD RELATIONSHIP BETWEEN THE DONOR AND DONEE THEREFORE MOTIVE FOR MAKING SUCH GIFT IS NOT ESTABLISHED. SECONDLY THE DONOR IN HIS STATEMENT RECORDED UNDER SEC. 40 OF THE FOREIGN EXCHANGE REGULATION ACT 1973 ON 12.12.1995 HAD DISCLOSED THAT HIS ACCOUNT WAS MISUSED FOR DISTRIBU TION OF BOGUS GIFTS. AT THE 8 TIME OF HEARING LEARNED COUNSEL FOR THE ASSESSEE P OINTED OUT THAT THIS STATEMENT WAS RECORDED UNDER THE THREAT OF DETENTIO N AND ON THE FIRST AVAILABLE TIME DR. JAISWAL RETRACTED HIS STATEMENT . HIS RETRACTION WAS ACCEPTED BY THE ENFORCEMENT DIRECTORATE MEANING TH EREBY NO ACTION WAS TAKEN AGAINST DR. JAISWAL. HE HAS BEEN EXONERATED F ROM THE CHARGE. THE LEARNED COUNSEL FOR THE ASSESSEE MADE A REFERENCE T O THE ORDER OF THE ASST. DIRECTOR AVAILABLE ON PAGE NOS. 60 TO 65. THE CONCL USIVE PARAGRAPH READS AS UNDER: IN VIEW OF THE ABOVE I DO NOT FIND THERE IS SUFF ICIENT EVIDENCE ON RECORD TO ESTABLISH THE CHARGE BEYOND ANY REASON ABLE DOUBT. I THEREFORE DROP THE CHARGE FRAMED AGAINST SH. ANIL KUMAR AGGARWAL U/S. 9(1)(D) OF FOREIGN EXCHANGE REGULATION ACT 19 73. SINCE THE MAINTENANCE U/S. 9(1)(D) HAS NOT SURVIVED. I DO NOT FIND THERE IS SUFFICIENT MATERIAL TO CHARGE THE OTHER NOTICES. I THEREFORE DROP THE CHARGE AGAINST S/SH. V.D. JAISWAL A.S. ANEJA AND K .K. JAIN. 8. THUS WHATEVER DEPOSITION MADE BY HIM BEFORE THE ENFORCEMENT DIRECTOR HAS BEEN EXTINGUISHED AND IT HAS TO BE IGN ORED. IF IT IS EXCLUDED FROM THE EVIDENCE THEN NOTHING WILL LEFT WITH THE ASSESSING OFFICER TO DOUBT THE ALLEGED GIFT SUCH DOUBT CAN BE RAISED ONLY ON THE BASIS OF HUMAN PROBABILITY BECAUSE THERE IS NO RELATIONSHIP BETWEE N THE DONOR AND THE DONEE AND MOTIVE OF THE GIFT IS MISSING. HOWEVER BEFORE ARRIVING ANY CONCLUSION 9 WE WOULD LIKE TO REFER QUESTION AND ANSWER GIVEN BY DR. JAISWAL BEFORE THE ASSESSING OFFICER DURING HIS STATEMENT RECORDED UND ER SEC. 131 ON 17 TH OF SEPTEMBER 2002. THE RELEVANT QUESTIONS AND ANSWERS READ AS UNDER: Q. NO.13 YOU HAD GIVEN A STATEMENT ON 12-12-1995 U /S 40 OF THE FOREIGN EXCHANGE REGULATION ACT WHEREIN IT WAS STATED BY YO U THAT YOU HAD OPENED EIGHT DIFFERENT NRE. A/CS IN DIFFERENT B ANKS AT NEW DELHI DURING THE YEARS 1992 AND 1993 INCLUDING THE NRE A/C NO.320170274 IN THE AMERICAN EXPRESS BANK NEW DELH I IN WHICH ONE SH. A.S. ANEJA WAS YOUR MANDATEE. THERE W ERE DEPOSITS. WORTH APPROX. RS. 1. 7 5 CRORES IN CASH FOREIGN CURRENCY/TGS AND MORE THAN RS. 15 CRORES THROUGH TC S AND OTHER MEANS IN YOURS EIGHT NRE ACCOUNTS. ON BEING S PECIFICALLY ASKED BY THE ENFORCEMENT OFFICER REGARDING THE SOU RCE OF DEPOSITS IN YOUR NRE. ACCOUNTS IT WAS STATED BY YO U THAT AMOUNT WORTH RS. FOUR LACS WAS REMITTED BY YOU FROM ABROAD INTO THESE NRE ACCOUNTS AND REST OF THE DEPOSITS/RE MITTANCES WERE ARRANGED BY EITHER SH. A.S. ANEJA OR THROUGH M EN WORKING FOR HIM INCLUDING SH. S.K. MITTAL C.A. PLEASE EXP LAIN. ANS: THIS STATEMENT WAS RECORDED FORCINGLY UNDER DU RESS AND PROLONGED DETENTION AND THREAT OF INCARCERATION TO IMPLICATE CERTAIN PEOPLE TRYING TO BE FIXED BY THE ENFORCEMEN T DIRECTORATE. THIS WAS DENIED AT THE EARLIEST OPPORT UNITY TO THE DEPTT. LATER ON. THE HON'BLE F.E.R.A. BOARD IN ITS LAND MARK 10 JUDGEMENT HAD ALREADY RUBBISHED THE WORTHINESS OF T HIS RECORDED STATEMENT. IN ANY CASE THIS RELEVANT CASE S FOR WHICH I AM APPEARING IN RESPONSE TO SUMMONS BEFORE YOU ARE AT NO STAGE AND NO WAY MENTION IN THE REIMPUGNED STATEME NT RECORDED BY THE FERA AUTHORITIES. I DO NOT FIND ANY WAY RELEVANT IN THE MATTER. COPY OF HON'BLE FERA BOARD JUDGMENT IS ENCLOSED FOR YOUR PERUSAL. Q. NO. 13 IT WAS STATED BY YOU IN YOUR STATEMENT R EFERRED TO ABOVE THAT SHRI A. S. ANEJA ASKED YOU TO OPEN NRE ACCOUNTS WIT H DIFFERENT BANKS IN NEW DELHI SO AS TO FACILITATE SU CH ARRANGEMENTS TO MAKE NRE GIFT CHEQUES AGAINST CASH CONSIDERATION AND THE AMOUNTS SO COLLECTED COULD BE GIVEN TO YOUR FAMILY IN INDIA TO WHICH YOU AGREED AND OPENED THE NRE ALES FOR MAKING GIFTS CHEQUES AGAINST CASH CONSIDER ATION AT A PREMIUM BECAUSE YOU WERE UNDER THE IMPRESSION THAT THERE WAS NO CONTRAVENTION OF LAW INVOLVED. PLEASE EXPLAIN IN THIS LIGHT AS TO WHY THE GIFTS CHEQUES MADE BY YOU TO SH. KARAN C HAND BANSAL AND SH. MOTI SAGAR JAIN SHOULD NOT BE TREATE D AS BOGUS BEING GIFTS PURCHASED IN LIEU OF EQUIVALENT CASH CO NSIDERATION ALONG WITH PREMIUM? ANS. I HAVE ALREADY EXPLAINED THAT THE ABOVE PORTIO N OF THE SO CALLED RECORDED STATEMENT USED AS EVIDENCE IS PATENTLY FAL SE AND HAS NO RELEVANCE AND THE SAME HAS BEEN DENIED BY ME AT THE EARLIEST OPPORTUNITY. THE SAME VIEW HAS BEEN EXPRESSED BY TH E HON'BLE FERA BOARD THAT THESE GIFTS DO NOT AND CANNOT BE SC RUTINIZED 11 BY ANY LEGAL AUTHORITY AND DENY ITS PERMISSIBILITY AND EVEN IN THAT OBNOXIOUS STATEMENT THERE HAS NO MENTION OF BO GUSNESS OF THE GIFT TO SH. KARAM CHAND BANSAL AND SH. MOTI SAG AR JAIN. Q. NO.14 ON BEING SPECIFICALLY ASKED BY THE ENFORCE MENT OFFICER WHETHER ANY GENUINE GIFTS WERE GIVEN BY YOU TO ANY BODY FROM YOUR AFORESAID EIGHT NRE ACCOUNTS. IT WAS STATED BY YOU THAT YOU HAD NOT GIVEN GENUINE GIFT FROM YOUR NRE ACCOUN TS' TO ANY PERSON INCLUDING YOUR RELATIONS SO HOW CAN YOU CLA IM NOW TO HAVE MADE GENUINE GIFTS TO SH. KARAM CHAND BANSAL A ND SH. MOTI SAGAR JAIN? ANS. 1 HAVE ALREADY STATED IN ANSWERS FOR QUESTION IN DIFFERENT FORMAT THAT MY RECORDED STATEMENT WAS PATENTLY FALS E AND WAS FORCIBLY RECORDED BY ENFORCEMENT AUTHORITIES TO FIX CERTAIN PEOPLE WITH WHOM THEY HAVE SOME PERSONAL MATTERS TO SCORE. I STAND BY MY STATEMENT THAT GIFTS GIVEN BY ME TO SH. KARAM CHAND BANSAL AND SH. MOTI SAGAR JAIN FROM MY NRE A/ C WERE ON MY OWN FREE WILL FROM ANY OWN INCOME WITHOUT ANY CONSIDERATION. THE ABOVE STATEMENT HAS BEEN GIVEN BY ME WITHOUT AN Y PRESSURE OR COERCION. 9. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING POINTED OUT THAT SIMILAR GIFTS WERE MADE TO MRS. USHA BHANSAL SHRI VIKAS BANSAL 12 WHEREIN THE ITAT HAS ACCEPTED THE GENUINENESS OF TH E GIFT. HE PLACED ON RECORD COPY OF THE ITATS ORDER IN ITA NO.5352/DEL/ 03 IN THE CASE OF SHRI VIKAS BANSAL AND IN ITA NOS. 5078 AND 5079/DEL/03 I N THE CASE OF MRS. USHA BANSAL. COPIES OF THESE ORDERS HAVE BEEN PLACE D ON PAGE NOS. 79 TO 92 OF THE PAPER BOOK. 10. ON AN ANALYSIS OF ALL THESE MATERIAL WE FIND THAT ASSESSEE HAS PRODUCED GIFT DEED. HE HAS PRODUCED THE DONOR BEFOR E THE ASSESSING OFFICER WHO CONFIRMED THE DONATION THE GIFTS. THE GIFTS WER E THROUGH BANKING CHANNEL. THUS IN LAW ASSESSEE HAS FULFILLED ALL T HE INGREDIENTS EXCEPT THE ABSENCE OF RELATIONSHIP OR RECIPROCITY AT THE END O F ASSESSEE OF SUCH GIFTS TOWARDS DR. JAISWAL. THE ABSENCE OF MOTIVE IS RELEV ANT FACTOR TO DOUBT THE GENUINENESS OF THE GIFTS BUT TAKING INTO CONSIDERAT ION THE STATEMENT GIVEN BY DR. VD JAISWAL AND THE VIEW TAKEN BY THE ITAT IN TH E CASES OF OTHER SIMILARLY SITUATED ASSESSEES WE ARE OF THE VIEW TH AT FOR WANT OF MORE CORROBORATIVE EVIDENCE WE DO NOT WISH TO DISBELIEV E THE GIFT ON ACCOUNT OF ABSENCE OF MOTIVE AND RELATIONSHIP. THEREFORE WE A LLOW THIS GROUND OF APPEAL AND DELETE THE ADDITION OF RS.5 50 000. 13 11. AS FAR AS CHARGING OF INTEREST UNDER SEC. 234 A B AND C IS CONCERNED IT IS CONSEQUENTIAL. 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. 13. NOW WE TAKE THE PENALTY APPEAL. IN THIS APPEAL ASSESSEE IS IMPUGNING LEVY OF PENALTY UNDER SEC. 271(1)(C) OF THE ACT AT RS.2 19 000. THE PENALTY UNDER SEC. 271(1)(C) OF THE ACT CAN BE IMPOSED ON A CCOUNT OF FURNISHING OF INACCURATE PARTICULARS OR CONCEALING THE PARTICULAR S OF INCOME MEANING THEREBY THAT ASSESSEE SOUGHT TO COVER OR KEEP SOMET HING AWAY FROM THE DEPARTMENT AND WANT TO EVADE THE PAYMENT OF TAX. SI NCE WE HAVE DELETED THE ADDITION THEREFORE THERE CANNOT BE ANY EVASION OF TAX MEANING THEREBY THAT THERE CANNOT BE ANY PENALTY. CONSEQUENTLY THIS APP EAL IS ALLOWED AND PENALTY IS DELETED. DECISION PRONOUNCED IN THE OPEN COURT ON 30.09.201 1 SD/ SD/- ( G.E. VEERABHADRAPPA) ( RAJPAL YAD AV ) VICE-PRESIDENT JUDICIAL MEMBER DATED: 30/09/2011 MOHAN LAL 14 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR