The ACIT, Circle-1,, Bhavnagar v. Saidabanu S. Varteji, Bhavnagar

ITA 3160/AHD/2009 | 2004-2005
Pronouncement Date: 30-12-2011 | Result: Dismissed

Appeal Details

RSA Number 316020514 RSA 2009
Assessee PAN ABJPV2691N
Bench Ahmedabad
Appeal Number ITA 3160/AHD/2009
Duration Of Justice 2 year(s) 1 month(s) 3 day(s)
Appellant The ACIT, Circle-1,, Bhavnagar
Respondent Saidabanu S. Varteji, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 30-12-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 30-12-2011
Date Of Final Hearing 27-12-2011
Next Hearing Date 27-12-2011
Assessment Year 2004-2005
Appeal Filed On 26-11-2009
Judgment Text
ITA NO.3160/AHD/2009 A.Y. 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT & SHRI B.P. JAIN) SR.NO. ITA NO. ASSESSMENT YEAR APPELLANT RESPONDENT 1. 3160/AHD/2009 2004-05 ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-1 BHAVNAGAR. SMT. SAIDABANU S VARTEJI PLOT NO.36 A DEVBAUG DUDH DAIRY ROAD BHAVNAGAR PAN ABJPV 2691N 2. 3161/AHD/2009 2004-05 ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-1 BHAVNAGAR. SEEMABANU S. VARTEJI PLOT NO. 36A DEVBAUG DUDH DAIRY ROAD BHAVNAGAR. PAN ABCPV 0536H 3. 3162/AHD/2009 2004-05 ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-I BHAVNAGAR KHAIRUBEN V. VARTEJI PLOT NO.36A DEVBAUG DUDH DAIRY RD BHAVNAGAR PAN ACKPV 3351P APPELLANT BY : SHRI ABHISHEK KUMAR S R. D.R. RESPONDENT BY : SHRI A. C. SHAH ITA NO.3160/AHD/2009 A.Y. 2004-05 2 DATE OF HEARING : 27-12-2011 DATE OF PRONOUNCEMENT : 27-12-2011 ORDER . PER: SHRI B.P. JAIN A.M. THESE THREE APPEALS OF THE REVENUE ARISE FROM THE THREE DIFFERENT ORDERS OF LD. CIT (A)-XX AHMEDABAD EACH DATED 24-8-2009 EACH FOR THE ASSESSMENT YEAR 2004-05. 2. SINCE THE ISSUES IN ALL THE APPEALS ARE IDENTICA L AND THEREFORE THE SAME ARE BEING DECIDED BY THIS CONSOLIDATED ORDER. 3. FIRST OF ALL WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.3160/AHD/2009 AS UNDER. 4. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THE LD. CIT (A)-XX AHMEDABAD HAS ERRED IN LAW AN D ON FACTS IN DELETING THE PENALTY OF RS.3 30 000/- LEVIED U/S. 2 71(1)(C) OF THE I.T. ACT BY THE AO. WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE A.O. 1.2. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE COULD NOT SUBSTANTIA TE HER CLAIM REGARDING HAVING RECEIVED GIFT LEADING TO UPHOLDING OF THE A DDITION ON ACCOUNT OF NON GENUINE GIFTS BY THE LD. CIT (A) AND THEREFORE THE SAID PENALTY U/S. 271(1)(C) READ WITH EXPLANATION 1 WAS RIGHTLY LEVIED BY THE A O. ITA NO.3160/AHD/2009 A.Y. 2004-05 3 1.3. IN DOING SO THE LD. CIT(A) HAS ERRED IN LAW A ND ON FACTS IN NOT APPRECIATING THE RATIO OF THE FOLLOWING JUDICIAL DE CISIONS WHERE THE HONBLE HIGH COURTS HAVE HELD THAT IF THE ADDITION TO THE R ETURNED INCOME REMAINED UNSUBSTANTIATED THE PENALTY U/S. 271(1)(C) READ WI TH EXPLANATION 1 IS LEVIABLE: (1) 288 ITR 396 (AHD); AND (20 225 ITR 675 (P&H) 1.4. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN OBSERVING THAT THE AO HAD NOT ESTABLISHED THAT THE APPELLANT FURNISHED A FALSE REPLY OR EXPLANATIONS OFFERED ARE NOT BONAFIED WITHOUT APPR ECIATING THE DETAILED FINDINGS OF LD. CIT (A) IN THE QUANTUM APPEAL WHICH SHOW THAT THE ASSESSEES CLAIM OF RECEIPT OF GIFTS WAS NOT GENUIN E AND THE ASSESSEES OWN MONEY HAD BEEN INTRODUCED I THE GARB OF THE RECEIPT OF GIFTS. 1.5. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF UNION OF INDIA AND OTHERS VS. DHARMENDRA TEXTILE PROCESSO RS AND OTHERS REPORTED IN 306 ITR 277 IN WHICH THE HONBLE APEX COURT HAS HELD THAT WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR LEVY OF PENALTY U/S. 271(1)(C). 2. 1ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE C IT (A) BE SET ASIDE AND THAT OF AO BE RESTORED TO THE ABOVE EXTENT. 5. THE BRIEF FACTS ARE THAT THE AO MADE AN ADDITION ON ACCOUNT OF NON GENUINE GIFTS U/S. 68 OF THE ACT. THE AO INITIATED THE PENA LTY PROCEEDINGS FOR CONCEALMENT OF INCOME U/S. 271(1) (C )OF THE ACT AND NOT SATISF IED WITH THE EXPLANATION OF THE ASSESSEE LEVIED THE PENALTY. 6. THE LD. CIT (A) CANCELLED THE PENALTY VIDE PARAG RAPH 2.3 OF HIS ORDER RELYING UPON THE DECISION IN THE CASE OF HONBLE SU PREME COURT IN THE CASE OF T. ITA NO.3160/AHD/2009 A.Y. 2004-05 4 ASHOK PAI VS. CIT (2007) 292 ITR 11 BY OBSERVING T HAT AO HAS NOT DRAWN ANY INFERENCE BASED ON ANY EVIDENCES TO THE EFFECT THAT AMOUNT RECEIVED AS GIFT BY THE ASSESSEE REPRESENTS HER INCOME. THE ASSESSEE HAS O FFERED HER EXPLANATION ALONG WITH DOCUMENTS AND EVIDENCES ETC. DURING THE COURS E OF PENALTY PROCEEDINGS AND THE AO HAS NEITHER DISCUSSED THE SAME NOR BROUGHT A NY EVIDENCES WHICH DISPROVES THE ASSESSEES EXPLANATION. THEREFORE THE AO HAS N OT ESTABLISHED THAT ASSESSEE FURNISHED FALSE EXPLANATION AND ACCORDINGLY CANCELL ED THE PENALTY LEVIED BY THE AO. 7. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSESS EE SHRI A.C. SHAH POINTED OUT THAT THE ADDITION MADE BY THE AO AND WHICH WAS CONF IRMED BY THE LD. CIT (A) HAS SINCE BEEN DIRECTED TO BE DELETED BY THE TRIBUNAL I N ITA NOS.2177 TO 2179/AHD/2007 VIDE ORDER DATED 16-12-2011. THEREFOR E THE PENALTY LEVIED U/S. 271(1) (C) OF THE ACT CANNOT SURVIVE. 8. THE LD. DR ON THE OTHER HAND CONCEDED THE FACTS AS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ADDITION CONFIRMED BY THE LD. CIT (A) IN THE QUANTU M APPEAL HAS SINCE BEEN DIRECTED TO BE DELETED BY US IN ITA NOS.2177 TO 217 9/AHD/2007 (SUPRA) AND THEREFORE THE PENALTY U/S. 271(1)(C ) OF THE ACT C ANNOT SURVIVE. THOUGH THE LD. CIT (A) HAS CANCELLED THE PENALTY ON DIFFERENT GROUND B UT THE PENALTY IN THE PRESENT CASE CANNOT SURVIVE FOR THE REASONS MENTIONED THERE IN. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE PRESENT CASE WITHOUT GOING INTO THE MERITS OF THE CASE AS DISCUSSED BY LD. CIT (A) APPEAL OF THE REV ENUE IS DISMISSED. ITA NO.3160/AHD/2009 A.Y. 2004-05 5 10. NOW WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.3161/AHD/2009 WHEREIN THE REVENUE HAS RAISED THE FOLLOWING GROUND S:- 1. THE LD. CIT (A)-XX AHMEDABAD HAS ERRED IN LAW AN D ON FACTS IN DELETING THE PENALTY OF RS.3 30 000/- LEVIED U/S. 2 71(1)(C) OF THE I.T. ACT BY THE AO. WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE A.O. 1.2. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE COULD NOT SUBSTANTIA TE HER CLAIM REGARDING HAVING RECEIVED GIFT LEADING TO UPHOLDING OF THE A DDITION ON ACCOUNT OF NON GENUINE GIFTS BY THE LD. CIT (A) AND THEREFORE THE SAID PENALTY U/S. 271(1)(C) READ WITH EXPLANATION 1 WAS RIGHTLY LEVIED BY THE A O. 1.3. IN DOING SO THE LD. CIT(A) HAS ERRED IN LAW A ND ON FACTS IN NOT APPRECIATING THE RATIO OF THE FOLLOWING JUDICIAL DE CISIONS WHERE THE HONBLE HIGH COURTS HAVE HELD THAT IF THE ADDITION TO THE R ETURNED INCOME REMAINED UNSUBSTANTIATED THE PENALTY U/S. 271(1)(C) READ WI TH EXPLANATION 1 IS LEVIABLE: (1) 288 ITR 396 (AHD); AND (20 225 ITR 675 (P&H) 1.4. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN OBSERVING THAT THE AO HAD NOT ESTABLISHED THAT THE APPELLANT FURNISHED A FALSE REPLY OR EXPLANATIONS OFFERED ARE NOT BONAFIED WITHOUT APPR ECIATING THE DETAILED FINDINGS OF LD. CIT (A) IN THE QUANTUM APPEAL WHICH SHOW THAT THE ASSESSEES CLAIM OF RECEIPT OF GIFTS WAS NOT GENUIN E AND THE ASSESSEES OWN MONEY HAD BEEN INTRODUCED I THE GARB OF THE RECEIPT OF GIFTS. 1.5. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF UNION OF INDIA AND OTHERS VS. DHARMENDRA TEXTILE PROCESSO RS AND OTHERS REPORTED IN 306 ITR 277 IN WHICH THE HONBLE APEX COURT HAS HELD THAT WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR LEVY OF PENALTY U/S. 271(1)(C). ITA NO.3160/AHD/2009 A.Y. 2004-05 6 2. 1ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE C IT (A) BE SET ASIDE AND THAT OF AO BE RESTORED TO THE ABOVE EXTENT. 12. THE FACTS IN THE PRESENT APPEAL ARE IDENTICAL T O THE FACTS IN THE CASE OF SMT. SAIDABANU S.VARTEJI WHICH HAS BEEN DECIDED BY US HE REINABOVE AND FOLLOWING THE SAME WE DISMISS THE APPEAL OF THE REVENUE. 13. NOW WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.3162/AHD/2009 WHEREIN THE FOLLOWING GROUNDS OF APPEAL ARE RAISED: - 1. THE LD. CIT (A)-XX AHMEDABAD HAS ERRED IN LAW AN D ON FACTS IN DELETING THE PENALTY OF RS.4 95 000/- LEVIED U/S. 2 71(1)(C) OF THE I.T. ACT BY THE AO. WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE A.O. 1.2. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE COULD NOT SUBSTANTIA TE HER CLAIM REGARDING HAVING RECEIVED GIFT LEADING TO UPHOLDING OF THE A DDITION ON ACCOUNT OF NON GENUINE GIFTS BY THE LD. CIT (A) AND THEREFORE THE SAID PENALTY U/S. 271(1)(C) READ WITH EXPLANATION 1 WAS RIGHTLY LEVIED BY THE A O. 1.3. IN DOING SO THE LD. CIT(A) HAS ERRED IN LAW A ND ON FACTS IN NOT APPRECIATING THE RATIO OF THE FOLLOWING JUDICIAL DE CISIONS WHERE THE HONBLE HIGH COURTS HAVE HELD THAT IF THE ADDITION TO THE R ETURNED INCOME REMAINED UNSUBSTANTIATED THE PENALTY U/S. 271(1)(C) READ WI TH EXPLANATION 1 IS LEVIABLE: (1) 288 ITR 396 (AHD); AND (20 225 ITR 675 (P&H) ITA NO.3160/AHD/2009 A.Y. 2004-05 7 1.4. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN OBSERVING THAT THE AO HAD NOT ESTABLISHED THAT THE APPELLANT FURNISHED A FALSE REPLY OR EXPLANATIONS OFFERED ARE NOT BONAFIED WITHOUT APPR ECIATING THE DETAILED FINDINGS OF LD. CIT (A) IN THE QUANTUM APPEAL WHICH SHOW THAT THE ASSESSEES CLAIM OF RECEIPT OF GIFTS WAS NOT GENUIN E AND THE ASSESSEES OWN MONEY HAD BEEN INTRODUCED I THE GARB OF THE RECEIPT OF GIFTS. 1.5. IN DOING SO THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF UNION OF INDIA AND OTHERS VS. DHARMENDRA TEXTILE PROCESSO RS AND OTHERS REPORTED IN 306 ITR 277 IN WHICH THE HONBLE APEX COURT HAS HELD THAT WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR LEVY OF PENALTY U/S. 271(1)(C). 2. 1ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE C IT (A) BE SET ASIDE AND THAT OF AO BE RESTORED TO THE ABOVE EXTENT. 14. THE FACTS IN THE PRESENT APPEAL ARE IDENTICAL T O THE FACTS IN THE CASE OF SMT. SAIDABANU S.VARTEJI WHICH HAS BEEN DECIDED BY US HE REINABOVE AND FOLLOWING THE SAME WE DISMISS THE APPEAL OF THE REVENUE. 15. IN THE RESULT ALL THE APPEALS IN ITA NO.3160/A/ 2009 3161/A/2009 & 3162/A/2009 ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 27 - 12 - 2 011. SD/- SD/- (MUKUL KUMAR SHRAWAT) (B. P.JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER ITA NO.3160/AHD/2009 A.Y. 2004-05 8 AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-XX AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHMEDABAD. 1.DATE OF DICTATION - -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING / / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..