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2016 (1) TMI 76 - ITAT MUMBAI

2016 (1) TMI 76 - ITAT MUMBAI - TMI - Penalty u/s 271(1)(c) - unexplained investments in relation to jewellery found during the course of search action - Held that:- There is no dispute that quantum addition has been deleted by the Tribunal, therefore, in our humble opinion, the ld. Commissioner of Income tax (Appeals) is not justified in confirming the penalty. Admittedly, the impugned order is dated 07/10/2013, whereas, the order of quantum addition of the Tribunal is dated 31/07/2015, meaning .....

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stand in itself if the addition made in the assessment itself is set aside or cancelled by the superior authority/Court. The penalty cannot stand by itself because false result may be produced by the falsity of one or more of the constituent items in the return. The word ‘inaccurate particulars’ would cover falsity in the final figure and also the constituent elements or items. They simply would mean inaccurate in some specific or definite respect whether in the constituent or subordinate items .....

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ngh, Judicial Member, And Shri Rajesh Kumar, Accountant Member For the Petitioner : Shri Mahesh O. Rajora For the Respondent ; Shri Vijay Kumar Soni-DR ORDER Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 07/10/2013 of the ld. First Appellate Authority, Mumbai, confirming penalty of ₹ 3,36,912/-, imposed u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter the Act). 2. At the time of hearing, the ld. counsel for the assessee, Shri Mahesh O. Raj .....

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uantum addition, for ready reference:- ITA No.3513/M/2012 2. The assessee in this appeal has challenged the action of the Ld. CIT(A) in confirming the additions made by the Assessing Officer (hereinafter referred to as the AO) as unexplained investments in relation to jewellery found during the course of search action. 3. The facts in brief are that a search action u/s 132 of the I.T. Act was carried out in the case of Acme Group Companies and related persons. The assessee was also covered in th .....

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as unexplained and added to the income of the assessee. 4. The assessee explained the source of the jewellery and made his submissions vide letter dated 4.10.2010 and further vide letter dated 8.11.2010. He further submitted that looking to the status of family and the customs and the practice of the community to which the family belonged, the jewellery found should be treated as duly explained. The AO however did not agree with the explanation offered by the assessee. He observed that out of t .....

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H Doshi (Spouse of Appellant) ii) Mrs. Neela Pravin Doshi (Self-Appellant) iii) Mr. Munish P Doshi (Son of Appellant) iv) Mrs. Alka Munish Doshi (Daughter in law) v) Master Manav Munish Doshi (Grand Son of Appellant) vi) Mr. Rajesh P Doshi (Son of Appellant) vii) Mrs. Priti Rajesh Doshi (Daughter in law) viii) Pravin H Doshi (HUF) ix) Mrs. Ranjan Ben R Doshi. (widow of late Shri Ratilal Doshi) (Aunty of spouse) The assessee also furnished the following evidences to explain the source of acquisi .....

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flecting payment made along with few ledger account of parties. The assessee also filed the ledger of the jewellery account reflecting the jewellery purchased for the relevant period. The assessee further submitted that considering the financial status of the family of the assessee, the jewellery found during course of search action could not be regarded as unexplained. The assessee further explained that some of the jewellery was received as gift from relatives on social and religious occasions .....

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ry from the old jewellery items. It was submitted that even in respect of Diamond Jewellery, the overall carat weight of diamonds approximately matched with that was already accounted by assessee s family members. It was therefore submitted that the additions under section 69A were not warranted in this case. 6. The Ld. CIT(A), after considering the submissions of the assessee observed that it was correct that the overall weight of the gold jewellery declared by the assessee and his family in th .....

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ther chart in respect of items which did not match with the description of items made in the valuation report furnished by the assessee. The assessee made charts No. I & II in the above manner in relation to gold items, the contents of which have also been reproduced in the impugned order. 7. The Ld. CIT(A), after tallying and making comparative analysis of the items disclosed by the assessee in the approved valuer s report with that of the report made during search action, observed that mos .....

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II, the Ld. CIT(A) observed that the items mentioned in chart No.II did not exactly match with the description made in the approved valuers reports. He, therefore, confirmed the additions in respect of items of gold jewellery mentioned in chart No.II. The Ld. CIT(A) also directed the assessee to prepare similar charts in respect of diamond jewellery. The assessee submitted the said charts accordingly. The Ld. CIT(A), after tallying the each of the items with that of valuation report of the appro .....

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ght our attention to the details and description of the items as reproduced by the Ld. CIT(A) in the impugned order. Inviting our attention to the page 12 of the impugned order in relation to item No.29 of locker No.571, the description has been mentioned as Tanmanya Pendant with chain . The number of pieces of diamond in the said pendant has been mentioned as 59. The assessee has stated that it matched with item at serial no. 9 of the valuer s report wherein the description has been mentioned a .....

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oss weight also matched and the pieces of diamonds mentioned also matched. However, the estsimation of carat value by the government valuer is at 1.68 whereas as mentioned in the valuation report of the assessee is at 2.75. Similarly, in respect of item No.21 Eartopes gold gross weight also matches and number of pieces of diamond also matches. However, there is a small difference in carat weight of diamonds. The Ld. A.R. of the assessee has invited our attention in respect of other items also wh .....

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on of the jewellery sets, bangles, pendant, eartopes etc. matched with the valuation report but also the number of diamonds embedded in the jewellery. So far as the estimation of carat weight is concerned, it is an admitted fact that the weight was not measured by extracting the diamonds out of the jewellery, but was just estimated by the Departmental Valuer. Under such circumstances, the minor difference in carat weight value, especially when the same was not exactly weighed by the Departmental .....

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the family members of the assessee in the books of account. Similarly, in respect of diamond jewellery, the assessee family has already declared 222.80 carats of diamond, whereas, the Departmental Valuer had estimated only 203.29 carat of the diamonds which was less than the total diamond weight/carats declared by the assessee. Even the number of diamonds embedded in the each item of the jewellery matched with that of the valuation report. 11. The Ld. A.R. has further invited our attention to th .....

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ther, in the case of Mrs. Vinita S. Jhunjhunwala vs. ACIT in ITA No.8837/M/2010 for A.Y. 2008-09 decided on 20.01.2014, the co-ordinate Mumbai bench of the Tribunal has concluded that when quantity of jewellery disclosed by the assessee is same as the quantity of jewellery found during the course of search, no addition is warranted merely because the description is not matching. It is a vital fact that ladies get jewellery converted as per latest design and for which even the concerned man in th .....

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he coordinate bench of the Tribunal has observed that merely because the description of some of the ornaments in the Wealth-tax return did not tally with the ornaments found at the time of search, is no ground for rejecting the assessee s claim of remaking of the ornaments even if the assessee has not preserved the bill of remaking charges. In the case of ACIT vs. Shri Kamalkishan H. Aggarwal in ITA No.777/M/1998 and ITA No.5127/M/1995 & others decided vide common order dated 21.06.13, the T .....

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hereof are explained. it is normal that some of the ornaments are dismantled and remade. it would be unreasonable to take a stand that all the ornaments found at the time of search must accurately compare in description and weight with the ornaments declared in the wealth tax return. The possibility that some of the items could have been remade cannot be ruled out. The important point is that the ornaments found should not be in excess in quantity as compared to the ornaments declared in the Wea .....

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ut. 12. In the case in hand also, if the difference in weight is ignored the description of the items of the jewellery almost tallied with that of the items already declared by the assessee. Moreover the overall weight of jewellery already declared by the assessee in her books of accounts is more than that of the jewellery found during the course of search action. In view of the above stated facts and in the light of the proposition of law laid down vide judicial pronouncements on this issue as .....

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dy reference:- The Revenue is aggrieved by the impugned order dated 10/01/2014 of the ld. First Appellate Authority, Mumbai, deleting penalty of ₹ 18,75,314/-, imposed u/s 271(1)(c), even though the quantum addition has been upheld by the ld. Commissioner of Income Tax (Appeals). 2. During hearing of this appeal, the ld. counsel for the assessee, at the outset, pointed out that the quantum addition on the basis of which penalty was imposed has been deleted by the Tribunal in order dated 27 .....

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7-08, in the matter of order passed u/s.143(3) of the I.T.Act. 2. Common grievance in both the appeals relate to disallowance of claim of deduction u/s.54(1) in respect of residential flats acquired by the assessees in consideration of old house sold to the builder. 3. Rival contentions have been heard and record perused. Facts in brief are that the assessee Vilma Mary Pereira has sold immovable property situated at "Violet Valley" (with garage) at Junction of 26th and 30th Road at Ban .....

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ne open) as part of additional consideration. However, the additional consideration was not shown as part of the total consideration received by the assessee in her computation of LTCG on transfer of the said property during the year. Further, the assessee had taken the FMV of the said property as on 1.4.1981 at ₹ 35,00,000/- on the basis of valuation report dated 3.8.2006. In view of this, vide letter dated 21.8.2009, the A.O. asked the assessee to state as under :- "1. Please provid .....

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uls.54EC has been claimed. Please furnish copies of relevant bank extracts with narration of each entry to support your claim. 3. Proof of payment of professional fees and allowability of the same as deduction from the LTCG shown. 4. Basis of division of share of the property sold during the year. Please furnish evidences to support your claim. 5. Please explain why the valuation made by you of the property sold as on 1.4.1981 should not be rejected? 4. In response, the A.R. of the appellant vid .....

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luer for further verification. In case your honour is not satisfied without valuation report. 4. The aforesaid submission of the assessee was considered by the A.O. According to the A.O. the new flat and car parking are nothing but additional consideration. If the said new flat is receivable for old flat and old car parking place, how the assessee has claimed indexation on the value of the said properties as on 1.4.1981 against the consideration. If the new flat was to be given in lieu of the ol .....

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ssessee, then the investment in new residential property should be allowed u/s.54 at market value. The AO. analysed the contention of the assessee. According to the A.O., exemption u/s.54 is available only when the assessee has purchased a new flat one year before or two years after the date of transfer or has constructed a new residential' house within a period of three years from the date of transfer of the house property (original). The flats (alongwith car 'parking spaces) received b .....

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or exemption u/s.54 of the LT. Act. The A.O. has further elaborated this issue in para 10 of the assessment order wherein he has held that exemption u/s.54 of the I.T.Act is allowable only when the assessee makes an investment towards purchase or construction of a new house property within the stipulated period. Thus for availing exemption u/s.54, the assessee has to either purchase or construct a new house property. 6. In this regard, the A.O. further held that exemption u/s.54 in respect of ca .....

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nvestment. In order to avail the exemption u/s.54, the assessee should have made the investment in a new residence either by way of purchase or construction of the same. In the instant case, as per AO, the assessee has not fulfilled this condition which is the requirement of the Act. In view of the above, the A.O. held that the assessee is not eligible for exemption u/s.54 of the l.T.Act and accordingly denied the same to the assessee. 7. By the impugned order, the CIT(A) confirmed the disallowa .....

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ne open and two stilt parking in kind. 2. In the assessment order. the A.O. has valued the consideration received in kind for ₹ 3,32,70,540/- and additions were made in the assessment order under the head long term capital gains without considering the said amount as reinvestment is neither purchased nor constructed by the assessee. 3. As regards benefit of section 54, this section makes it clear that capital gain arising from the transfer of a house property is exempt from tax provided th .....

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d of three years after the date of transfer. The appellant has fulfilled the precondition mentioned at point Nos.(a) & (b) above was not in doubt. This was also not in dispute that the assessee had purchased new residential property by way of construction. This was because it was clear from the agreement with developer that the developer would construct the residential building on the property alienated by the assessee to the developer and handover the residential house to the assessee in co .....

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rchase' held by the Apex Court in the assessee of CIT vs. T.N. Aravinda Reddy. In this case, the definition of the term 'purchase' has been given as under: "....... We find no reason to divorce the ordinary meaning of the word purchase as buying for a price or equivalent of price by payment in kind or adjustment towards an old debt or for other monetary consideration from the legal meaning of that word in section 54(1). If you sell your house and make a profit pay Caesar what is .....

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justment towards old debt or for other monetary consideration. 6. In the present' case before your honour, the assessee has purchased/constructed the new residential property and paid the consideration equivalent of price by payment in kind. Therefore the assessee has purchased the residential property and is entitled for exemption u/s.54 of the I T.Act 1961. 9. It is clear from the above that residential house was given to the assessee in consideration of the sale of old house. The sale con .....

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residential property and paid the consideration equivalent of price by payment in kind. Therefore, the assessee is entitled for exemption u/s.54 of I.T.Act, 1961 in respect of these flats. 11. An issue was also raised by the AO with regard to sharing of 3 flats between the co-owners of the property and the exemption u/s.54 allowable in case of investment in one residential flat only. In this regard, we found that the details of allocation of area of new residential property between co-owners are .....

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01 & 302 are situated in the same floor and adjacent to each other and will be treated as one single residential unit for the purpose of claiming exemption u/s.54. The same view has been taken by the Special Bench of the Mumbai Tribunal in the case of ITO Vs. Ms. Sushila M. Jhaveri, (2007) 292 ITR (AT) 1 (Mumbai). 12. The issue raised by the AO is also covered by the decision of Hon ble Delhi High Court in the case of Gita Duggal 257 CTR 208, wherein the Hon ble High Court held as under:- Se .....

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residence, the requirement of the section should be taken to have been satisfied. There is nothing in these sections which require the residential house to be constructed in a particular manner. The only requirement is that it should be for the residential use and not for commercial use. If there is nothing in the section which requires that the residential house should be built in a particular manner, it seems that the IT authorities cannot insist upon that requirement. A person may construct a .....

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same or different floors) in such a manner that an independent residential unit consisting of two or three bedrooms may be carved out with an independent entrance so that it can be let out. He may even arrange for his children and family to stay there, so that they are nearby, an arrangement which can be mutually supportive. He may construct his residence in such a manner that in case of a future need he may be able to dispose of a part thereof as an independent house. There may be several such .....

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stified in allowing exemption under s.54 in respect of entire investment in construction of basement, ground floor, first floor, second floor and third floor. 13. In view of the above discussion, we do not find any merit in the action of the AO for decline of claim of deduction u/s.54 in respect of residential flats allotted by builder in consideration of sale of old house. 14. In the result, appeals of both the assessees are allowed. Order pronounced in the open court on this 27th Feb.2015. 2.2 .....

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, therefore, when the basis no longer survive on the basis of which penalty was imposed, in our view, penalty u/s 271(1)(c) of the Act cannot survive. 2.3. There is no dispute that quantum addition has been deleted by the Tribunal, therefore, in our humble opinion, the ld. Commissioner of Income tax (Appeals) is justified in deleting the penalty. Our view further finds support from the decision and the ratio laid down in CIT vs S.P Viz Construction company 176 ITR 47 (Patna) and K.C. Builders vs .....

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items in the return. The word inaccurate particulars would cover falsity in the final figure and also the constituent elements or items. They simply would mean inaccurate in some specific or definite respect whether in the constituent or subordinate items of income or the end result. Concealment or furnishing inaccurate particulars implies some deliberate act on the part of the assessee in withholding the true facts from the authorities. Since, the basis of levying penalty remains no more in ex .....

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