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2016 (7) TMI 844

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..... view, the action of the A.O. in levying the penalty u/s 271(1)(c) of the Act of ₹ 1,45,089/- for concealment of income , which was later confirmed/sustained by the learned CIT(A) was quite justified and we confirm the same - Decided against assessee. - I .T.A. No.2553/Mum/2009 - - - Dated:- 13-7-2016 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee Shri Nishit Gandhi For The Revenue : Shri S.R. Singh,Sr. AR ORDER PER RAMIT KOCHAR, Accountant Member This appeal, filed by the assessee , being ITA No. 2553/Mum/2009, is directed against the order dated 08-01-2009 passed by learned Commissioner of Income Tax (Appeals)- XVI, Mumbai (hereinafter called the CIT(A) ), for the assessment year 2002-03, the appellate proceedings before the learned CIT(A) arising from the penalty order dated 26-02-2007 passed by the learned Assessing Officer (hereinafter called the AO ) u/s 271(1)(c) of the Income Tax Act,1961 (Hereinafter called the Act ). 2. The grounds of appeal raised by the assessee in memo of appeal filed before the Income Tax Appellate Tribunal, Mumbai (hereinafter called the Tribunal ) read as under: .....

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..... rejected the contentions of the assessee and observed that there was a search on Shah group by Pune Directorate in the month of October, 2002 wherein it was found that some of the beneficiaries have received bogus gifts. The name of the assessee as beneficiary of bogus gift of ₹ 5,00,000/- was there in the list prepared by Pune Directorate for Mumbai region . The assessee had filed revised return on 1st August, 2004 ( correct date as per claim of the assessee is 21-10-2004) wherein he had offered the said sum of ₹ 5 lacs as miscellaneous income under the head income from other sources and paid due taxes to the Revenue. During the assessment proceedings u/s 147 read with Section 143(3) of the Act, it was held by the AO that the assessee failed to produce any explanation or details or any documentary evidence to prove the genuineness of the miscellaneous receipt amount of ₹ 5 lacs by the assessee and hence the A.O. treated the same as the assessee s income from undisclosed sources u/s 68 of the Act. The AO observed that the assessee filed his revised return of income only after the same was detected by the Revenue and it was not a voluntary declaration by the ass .....

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..... d 08-01-2009 passed by the learned CIT(A), the assessee is in appeal before the Tribunal. 7. The ld. Counsel for the assesse submitted that the assessee has filed revised return on 21st October, 2004 whereby income of ₹ 5,00,000/- being gift received was declared in the revised return of income as miscellaneous income under the head income from other sources and due taxes paid to Revenue, which is prior to the issue of notice u/s 148 of the Act i.e. on 14th July, 2005. The revised return of income filed by the assesse was accepted by the Revenue. The search was conducted by the Directorate of Investigation in Pune in the case of Shah Group in the month of October, 2002 and later on revised return was filed on 21st October, 2004 whereby the assessee declared the gift of ₹ 5 lacs as miscellaneous income under the head income from other sources . Taxes were duly paid to the Revenue by the assessee before filing of revised return of income on this income of ₹ 5,00,000/- declared as miscellaneous income under the head income from other sources . It is submitted that the revised return of income filed by the assessee on 21-10- 2004 was also submitted as return of .....

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..... ed 14-07-2005 u/s 148 of the Act was issued to the assessee asking the assessee to file return of income in pursuance to notice u/s 148 of the Act. The said revised return which was filed by the assessee on 21-10-2004 was also submitted by the assessee before the Revenue to be treated as the return of income in pursuance of notice dated 14-07-2005 u/s 148 of the Act. Since the revised return of income filed on 21-10-2004 was filed beyond the period prescribed u/s 139(5) of the Act, the said revised return of income shall be deemed to be non-est and any disclosure made therein shall have no evidentiary value. The disclosure of the said bogus gift of ₹ 5,00,000/- which was made by the assessee in the return of income filed in pursuance of notice dated 14-07- 2005 issued u/s 148 of the Act is post recoding of reasons by the Revenue about escapement of income to the tune of ₹ 5,00,000/- being by virtue of bogus gifts received by the assessee detected pursuant to the searches conducted on Shah group on October 2002. The Revenue then processed the said return of income u/s 147/148 of the Act and passed assessment orders dated 28-08-2006 u/s 147 read with section 143(3) of the .....

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..... f Parinee Developers Private Limited v. ACIT in ITA no. 6772/Mum/2013 vide orders dated 11.09.2015 and also decision in the case of Prema Gopal Rao v. DCIT in ITA no 8653/Mum/2911 vide orders dated 07.01.2015 , with due respect, we would like to submit that the facts are completely distinguishable in these case vis-a-vis facts in the case of the assessee and these decisions are not relevant for deciding the levying of penalty against the assessee keeping in view facts and circumstances of the assessee s case . The above cases deals with estimation of income or postponement of sale , change of method of accounting , change of head of income etc. but they did not deal with the case of bogus gifts which was admittedly declared as income by the assessee in revised return filed beyond the period stipulated u/s 139(5) of the Act , while the said bogus gifts were not declared as income in the original return of income filed u/s 139(1) of the Act. In the case of Prema Gopal Rao(supra) , the tax-payer filed revised return of income declaring long term capital gains after issuance of notice u/s 143(2) of the Act , the penalty was deleted because the AO in the notice did not specifically aske .....

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