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TMI Blog2015 (10) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... year under consideration assessee has shown in capital account three gifts i.e. two from Shri Sanwar Mal Saraff (Karta of M/s. Sanwar Mal Vimal Kumar Saraff HUF) and (Karta of M/s. Hanuman Bux Uma Dutta Saraff HUF) of Rs. 10,00,000/- each and Rs. 5,00,000/- from Shri Dinesh Ghiya. The AO had in quantum proceedings held that all three gifts were bogus and arranged by the assessee by using unaccounted cash of the assessee. Therefore, he made addition of Rs. 25,00,000/- to the income of the assessee. Penalty proceedings under section 271(1)(c) read with section 274 had been initiated separately for fining inaccurate particulars of income/concealment of income. The AO gave show cause notice on 22.03.2010 to the legal heir of the deceased i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 11.05.2012 deleted the penalty imposed stating that the penalty cannot be levied just because the addition was sustained. The ld. CIT (A) further held as under :- " 4. After going through rival submissions the AO is directed to delete the penalty u/s 271(1)(c) of Rs. 6,68,116/- because on similar facts, on similar gift from the same donor, Hon'ble ITAT Bench 'B', Jaipur deleted the penalty in the case of the wife of the appellant (in the case of Smt. Kesar Devi Garg). Para 5 of Hon'ble ITAT order is reproduced below :- "5. We have heard the rival submissions and considered them carefully. After considering the submissions and perusing the material on record, we are of the view that levy of penalty in the present case was not justified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of gift, source of gift alongwith bank account of the donor and donee were filed. The major details in respect of gift was filed, therefore, as stated above that these details were not sufficient to be a genuine gift, therefore, amount of gift was added. This is not necessary that where any addition has been sustained, penalty is also leviable. There are numerous decisions wherein it has been held that it is not necessary that penalty is leviable if the addition is sustained. The explanation given by the assessee was not found false. This is only a case of the assessee that assessee failed to substantiate it, penalty is not leviable as held by the Hon'ble Rajasthan High Court in the case of Shivlal Tak vs. CIT (2007) 251 ITR 373 (Raj.). In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been received by the assessee was held to be bogus. Once that was so, the only conclusion was that the assessee had furnished inaccurate particulars of income. The assessee had concealed the particulars of income and thus penalty was liable to be levied against him under section 271(1)(c) of the IT Act. Therefore, she requested to reverse the order of ld. CIT (A). 5. At the outset, the ld. A/R of the assessee reiterated the argument made before ld. CIT (A) and submitted that assessee's wife Smt. Kesar Devi Garg also received gift of Rs. 10,00,000/- from the same person. In case of Smt. Kesar Devi Garg, the Hon'ble ITAT had deleted the penalty in ITA No. 161/JP/2012 A.Y. 2001-02. On the same facts and circumstances in that case also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters of concealment penalty, which is quasi-criminal in nature, the principle of criminal jurisprudence will have to be applied. He further relied on the decision of Kolkata Bench of the Tribunal in the case of Bhubhan Mohan Mittal Charitable Trust vs. ITO (1993) 45 ITD 617 wherein it has been held that a legal heir cannot be penalized for default of the deceased. He again referred the case of PNP Thulkarunai & Co. vs. Director Enforcement (supra) under the FERA proceedings. He further relied on the following decisions :- Sushil Kumar Modi vs. ACIT 49 Tax World 123 (ITAT Jaipur) Jagdish Prasad Tanwar vs. ITO 43 Tax World 78 Rajendra & Others vs. ACIT (2010) 134 TTJ (Chennai) 498/(2010) 127 ITD 361 (Chennai) New Raja Jewellery vs. ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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