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2015 (10) TMI 999 - ITAT MUMBAI

2015 (10) TMI 999 - ITAT MUMBAI - TMI - Penalty under section 271(1)(c) - AO assessing the LTCG and gift receipts as income - reopening of assessment - Held that:- The tax authorities have not considered the materials and explanations furnished by the assessee. We find that the decision rendered in the case of Madhulika R. Oswal (2013 (7) TMI 921 - ITAT MUMBAI) is in accordance with the ratio of the decision rendered by Hon’ble Supreme Court in the case of MAK Data P Ltd (2013 (11) TMI 14 - SUPR .....

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AM AND AMARJIT SINGH, JM For The Appellants : Shri Beharilal For The Revenue : Shri Love Kumar ORDER Per Bench: All these appeals filed by the assessees are directed against the order passed by the ld. CIT(A) confirming the penalty under section 271(1)(c) of the Income Tax Act, 1961 in the hands of the assessees cited above for the years mentioned in the cause title against their respective names. 2. The ld. AR submitted that the Revenue carried out survey operation under section 133A of the Ac .....

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ened in the hands of assessees herein by issuing notices u/s 148 of the Act. Though the assessees, initially filed letters stating that the returns of income filed earlier may be treated as the return filed in response to the notices issued u/s 148 of the Act, yet these assessees filed revised computation of income wherein the LTCG and Gifts were offered as income. Accordingly, the AO completed the assessments by assessing the LTCG and gift receipts as income. The appeals filed by these assessee .....

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enalty without examining those documents and other explanations furnished by the assessee. The ld. AR submitted that the penalty proceedings are independent proceedings and hence the materials filed by the assessee and explanations offered by him are required to be examined independently. He submitted that the Ld CIT(A) also failed to examine the materials and explanations furnished by the assessees. He submitted that the Co-ordinate Bench of Mumbai Tribunal has considered an identical issue in .....

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e of the ld.CIT(A) for examining the materials and explanations furnished by the assessees. 3. On the contrary, the ld. D.R submitted that another co-ordinate Bench of Mumbai Tribunal has considered an identical issue in the case of other family members, viz., Rishi R Oswal V/s Jt.CIT in ITA Nos. 3331 to 333/Mum/2013 (AY-2002-03 to 2004-05), dated 12.12.2014 and Ratanchand S Oswal V/s JCIT in ITA No.3329 and 3330/Mum/2013 (AY-2002-03 and 2004-05), dated 12.12.2014 and the Tribunal has confirmed .....

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considered the legal position and accordingly set aside the matter to the file of the ld. CIT(A). For the sake of convenience, we extract below the relevant observation made by the Tribunal in the above said case: 3.2 It is well settled that the findings in the quantum proceedings, though not conclusive qua the levy or otherwise of penalty, constitute good evidence toward the concealment of particulars of income (refer: CIT vs. Somnath Oil Mills [1995] 214 ITR 32 (Guj.)). The order by the tribu .....

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e assessee, have to be regarded as final inasmuch as the tribunal is a final fact finding body. Further, this would be more so in the instant case as, as a narration of facts would show, are not in dispute. In view thereof, in our clear view it is not possible to treat the matter as covered or even to take a view that the principles laid down by the apex court in the case of Suresh Chandra Mittal (supra), wherein revised returns showing higher income were considered as an act of voluntary surren .....

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the revision of its income by the assessee by admitting higher income or higher tax liability on her income, can be said to be per revised return/s u/s. 139(5), or in any case voluntary, or not so, being rather as a result of the efforts by the Revenue. Penalty, it is trite, is with reference to the original return, so that the saving to the assessee from penalty, on an admission of a higher income or tax liability subsequently, could only be on furnishing a reasonable explanation or otherwise e .....

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ey Shyam 1980] 123 ITR 125 (All) and CIT vs. J. K. A. Subramania Chettiar [1977] 110 ITR 602 (Mad)). It needs to be emphasized that the burden of proof, in view of Explanation 1 to section 271(1)(c), is only on the assessee, and not on the Revenue, so that it is not required to establish concealment, but is deemed by law where the assessee fails to furnish an explanation or offers an explanation which is either found to be false or it is unable to substantiate (so that it is only a bald claim), .....

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e having been no examination of the assessee s case on merits, we, therefore, even as was the common contention of both the parties before us, restore the matter back to the file of the ld. CIT(A) to re-adjudicate the matter on merits in accordance with law and after hearing both the sides, issuing definite findings of fact. We decide accordingly. 5. In the other cases relied upon by the ld. DR, we notice that the Tribunal has not considered the decision rendered in the case of Madhulika R. Oswa .....

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