TMI Blog2012 (7) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... nue by Sh C G K Nair ORDER PER VIJAY PAL RAO, JM This appeal by the assessee is directed against the order dated 27.10.2009 of the Commissioner of Income Tax(Appeals) arising from the penalty order passed u/s 271(1)( c) of the I T Act for the Assessment Year 2004-05. 2 The assessee has raised the following ground in this appeal: The learned CIT (A) has erred in passing an order and levying penalty u/s 271(1)(c) based on the order passed by Income Tax Officer. The learned Assessing Officer has erred in making an addition of Rs. 50,00,000/- as unaccount income which is actually in the nature of gift. The appellant has received the said gift from Mr. Sandeep Shisodia (NRI) residing at Sharjah UA E for past 13 years. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR of the assessee has submitted that the assessee has disclosed all the relevant facts and particulars regarding the receipt of gift from the family friend Mr. Sandeep Shisodia. Therefore, the case of the assessee does not fall under the Explanation 1 to section 271(1)( c) as the addition was not arising on account of any fraud or wilful negligence on the part of the assessee. The ld AR has further submitted that the statute itself relax its rigour under clause B to Explanation 1 to sec 271(1) ( c) in respect of any amount of addition or disallowance, if the explanation is offered by the assessee which is not accepted because the assessee failed to substantiate the same; but such explanation is bonafide and all relevant facts and material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion, the ld AR has relied upon the following decisions. i) Mimosa Investment Co Pvt Ltd (2009) SOT 470(Mum) ii) Model Footwear (P) Ltd 124 ITD 353(Del) 4.1 The ld AR has also relied upon a series of decisions on the point that if the claim of the assessee is bonafide but the same was disallowed and the assessee cold not substantiate the same, then it will not amount to furnishing of inaccurate particulars of income warranting levy of penalty. 4.2 On the other hand, the ld DR has submitted that the claim of the assessee was found as false and not genuine. When the assessee has failed to prove the existence of any kind of love and affection between her and the donor and even the assessee had no personal meeting or conversation wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supposed to have given any gift. This is a simple case of arranging the fund on record for the consideration to be paid for the purchase of the flat. The Assessing Officer during the assessment proceedings has investigated the fact which has clearly demonstrated that the assessee was not even in touch with the donor for a long time and therefore, the question of any occasion and love and affection for giving such a huge amount of gift does not arise. 6 The issue of genuineness of the gift has been decided by the Tribunal vide order dated 28.10.2011 in para 7 8 as under: 7. We find that the money received from Shri Sandip M. Sisodia was used for purchase of the flat in Sripati Arcade , Nana Chowk, Mumbai. Even if there is no blood re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Ld. CIT (A) and we uphold the same and grounds taken by the assessee are dismissed. 5.1 The Tribunal has given a finding that the gift is not a genuine transition. Therefore, once the claim of the assessee is found as not genuine, then the only question remains to be seen for the purpose of levy of penalty is whether the claim of the assessee was bonafide or not. This is a claim of receipt of gift by the assessee which was found not genuine. Therefore, when the claim was found as incorrect and not genuine and it is established in the quantum proceedings that the assessee has claimed a non-genuine gift as a genuine gift. The claim is found to be incorrect even to the knowledge of the assessee. When a claim, which was incorr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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