SAYED FAZLE ABBAS, MUMBAI v. ACIT CEN CIR 5(3), MUMBAI

ITA 5558/MUM/2015 | 2009-2010
Pronouncement Date: 28-09-2016

Appeal Details

RSA Number 555819914 RSA 2015
Assessee PAN AISPS5270J
Bench Mumbai
Appeal Number ITA 5558/MUM/2015
Duration Of Justice 9 month(s) 20 day(s)
Appellant SAYED FAZLE ABBAS, MUMBAI
Respondent ACIT CEN CIR 5(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 28-09-2016
Assessment Year 2009-2010
Appeal Filed On 08-12-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI BEFORE SHRI R.C.SHARMA AM & SHRI AMARJIT SINGH JM ./ ITA NO. 5558 / MUM/20 1 5 ( / ASSESSMENT YEAR : 20 0 9 - 20 10 ) SHRI SAYED FAZLE ABBAS RAJESH B GUPTE ADVOCATE 618 BOMBAY MARKET APARTMENT TARDEO ROAD MUMBAI - 400034 VS. ACIT CC - 5(3) MUMBAI - 400020 ./ ./ PAN/GIR NO. : A ISPS 5270 J ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI RAJESH B. GUPTE /REVENUE BY : CAPT. PRADEEP ARYA / DATE OF HEARING : 22 /0 9 /2016 / DATE OF PRONOUNCEMENT 28 / 09 /2016 / O R D E R PER R.C.SHARMA (A.M) : THI S IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) MUMBAI DATED 30 - 09 - 2015 FOR THE ASSESSMENT YEAR 20 0 9 - 20 10 IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE I.T.ACT AMOUNTING TO RS.1 90 916/ - . 2. RIVAL CONTENTIONS HAVE BEEN H EARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT AT THE TIME OF SEARCH AND SEIZURE ACTION 842.800 GRAMS OF GOLD JEWELLERY WAS FOUND OUT OF WHICH 701.400 GRAMS WERE ACCEPTED BY THE DEPARTMENT TO BE DISCLOSED. IT WAS CLAIMED THAT THE BALANCE 141.400 GRAMS O F GOLD ORNAMENTS WERE RECEIVED ON THE OCCASION OF THE BIRTH OF ASSESSEES CHILDREN OR GIVEN TO HIS WIFE BY HER MOTHER. HOWEVER THE AO ITA NO. 5558 /1 5 2 DID NOT ACCEPT ASSESEES CONTENTION AND MADE ADDITION WITH REGARD TO DIFFERENCE IN JEWELLERY FOUND. THE AO ALSO LEVIED PE NALTY U/S.271(1)(C) OF THE ACT WITH REGARD TO THE ADDITION SO MADE. 3. BY THE IMPUGNED ORDER THE CIT(A) CONFIRMED THE ACTION OF AO AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. FROM THE RECORD WE FOUND THAT PENALTY OF RS. 1 90 916/ - WAS LEVIED WITH RESPECT TO ADDITION OF RS. 20 000/ - IN RESPECT OF COMMISSION INCOME EARNED BY ASSESSEE AND FOR DIFFERENCE IN THE JEWELLERY. GROUND WITH REGARD TO PENALTY LEVIED WIT H RESPECT TO COMMISSION RECEIVED WAS RESTORED BACK TO THE FILE OF AO. HOWEVER THE CIT(A) CONFIRMED THE PENALTY LEVIED WITH REFERENCE TO THE DIFFERENCE IN JEWELLERY FOUND. FROM THE RECORD WE FOUND THAT WITH REGARD TO THE DIFFERENCE IN JEWELLERY THE ASSESSE E HAS SUBMITTED EXPLANATION THAT IT WAS GIVEN TO HIS WIFE BY HER MOTHER. THE AO LEVIED PENALTY BECAUSE NO EVIDENCE WITH REGARD TO PURCHASE OF JEWELLERY BY THE MOTHER WAS PRODUCED BEFORE HIM. WE FOUND THAT MOTHER HAS BEEN EXPIRED MUCH BEFORE THE BLOCK PERIO D. MERELY BECAUSE THE BILLS TAKEN BY MOTHER FROM WHO WIFE OF ASSESSEE HAS GOT THE JEWELLERY COULD NOT BE PRODUCED WILL NOT DISLODGE THE CONTENTION OF THE ASSESSEE THAT JEWELLERY WAS RECEIVED FROM LATE PARENTS. LD. AR ALSO PLACED ON RECORD JUDICIAL PRONOUN CEMENTS IN CASE OF LATE SMT. DULARIDEVI JHA IT(SS)A NO.26/MUM/2009 ORDER DATED 22 - 3 - 2010M SHRI RAMAKANT JHA IT(SS)A NO.39/MUM/2009 ORDER DATED 31 - 3 - 2010 AND THE ORDER OF THE TRIBUNAL IN THE CASE OF SHRI AJIT KUMAR JHA IT(SS)A NO. 40/MUM/2009 ITA NO. 5558 /1 5 3 ORDER DAT ED 11 - 2 - 2010. IT WAS OBSERVED IN THESE JUDICIAL PRONOUNCEMENTS THAT THE EXPLANATION OF THE ASSESSEE TO THE EFFECT THAT GIFTS WERE RECEIVED FROM VARIOUS AUTHORITIES WERE NOT FOUND TO BE FALSE OR INCORRECT OR NO MATERIAL HAS BEEN BROUGHT ON RECORD TO ESTABLI SH THAT THESE GIFTS WERE BOGUS. IT WAS FOUND TO BE A CASE OF NON - SUBSTANTIATION OF THE EXPLANATION FILED BY THE ASSESSEE. ACCORDINGLY PENALTY SO LEVIED WAS DELETED BY THE TRIBUNAL. 5. IN THE INSTANT CASE ALSO THE ASSESSEE HAS FILED EXPLANATION WITH REGARD TO THE SOURCE OF RECEIPT OF JEWELLERY FROM LATE PARENTS. SINCE PARENTS HAVE ALREADY BEEN EXPIRED MUCH BEFORE THE BLOCK PERIOD AND ASSESSEE COULD BE PRODUCED THE BILLS OF ACQUISITION OF JEWELLERY BY THE PARENTS IT IS PROPER TO MAKE AN ADDITION FOR SUCH J EWELLERY BUT IN OUR VIEW MAY NOT BE SUFFICIENT TO LEVY PENALTY AS THERE IS NO CONTRARY MATERIAL AVAILABLE ON RECORD TO DISPROVE ASSESSEES CONTENTION . FURTHERMORE THERE IS NO FINDING TO THE CONTRARY THAT ASSESSEES CLAIM WAS NOT GENUINE. KEEPING IN VIEW ALL THESE FACTS AND CIRCUMSTANCES IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S.271(1)(C) WITH REGARD TO THE DIFFERENCE IN JEWELLERY SO FOUND. 6 . IN THE RESULT APPEAL OF THE A SSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 28/09/2016 . S D/ - ( AMARJIT SINGH ) S D/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 28/09/2016 . . /PKM . / PS ITA NO. 5558 /1 5 4 / COPY OF THE ORDER FORWARDED T O : / BY ORDER / ( ASSTT. REGISTRAR) / ITAT MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) MUMBAI. 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE. //TRUE COPY//