GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (5) TMI 367 - ITAT JAIPUR

2016 (5) TMI 367 - ITAT JAIPUR - TMI - Penalty levied U/s 271(1)(c) - unexplained investment U/s 69A - Held that:- It is a fact that the assessee’s father was 90 years old suffering from cancer, have not been denied. The fact that the earlier gift of ₹ 13.75 lacs from the father has not been disputed by the department. The ld CIT(A) while confirming the penalty has relied only on the observation of the ITAT in quantum proceedings. It is a settled law that the penalty proceedings are neithe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er material to draw an inference qua the imposition of penalty. The assessee has given a reasonable explanation on merits about the gift and while considering the penalty issue, nothing adverse has been commented thereon except the finding of the ITAT.

It is a settled law that penalty proceedings are distinguished and separate and assessee can raise fresh plea in the penalty proceedings, which has been done in this case. Having raised proper explanation and please in the penalty proce .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

YADAV, AM For The Assessee by : Shri Manish Agarwal (CA) For The Revenue : Shri Raj Mehra (JCIT) ORDER PER: R.P. TOLANI, J.M. This is an appeal filed by the assessee against the order dated 09/03/2015 passed by the learned CIT(A)-II, Jaipur for A.Y. 2006-07. The sole effective ground of appeal is as under:- 1. Under the facts and circumstances of the case, the ld CIT(A) is not justified in confirming the penalty levied U/s 271(1)(c) of the IT Act, 1961, for concealment of income in respect of ad .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

7; 10 lacs in respect of Section 69A of the Income Tax Act, 1961 (in short the Act). 3. Penalty proceedings were initiated, which now remain confined to the addition on account of Section 69A. The AO imposed the penalty in this respect of this addition by following observations: In this case the assessee has made cash deposits to the extent of ₹ 10,00,000/- in the bank accounts, the sources of which remains unproved and the respective income not declared in the return of income. Also, the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

c). Further, the explanation put forth by the assessee in his defense during course of assessment proceedings and appellate proceedings have not been found satisfactory and in this way also the case of the assessee falls in the category of Explanation-1 to section 271(1)(c). 4. Aggrieved, the assessee preferred first appeal against penalty. The ld CIT(A) while confirming it relied only on the observations of the ITAT in quantum proceedings in this behalf by following observations: 3.4.1. In this .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ostensible donor thus remains totally unproved. As afore- stated, and as would also be apparent from the foregoing, the assessee s explanation is also inflicted by inference of lack of genuineness, which stems from the factual and circumstantial gaps in his explanation, which is unsubstantiated, and which we shall examine next. In view of the above discussion, it is held that the appellant has not been able to substantiate his explanation and has failed to prove that this explanation is bonafide .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f levying penalty. It is submitted that the explanation offered by assessee during the course of penalty proceedings as well as before the Ld. CIT(A) was discarded and penalty was levied and upheld merely because the addition has been sustained in quantum appellate proceedings. The penalty proceedings being distinct and separate the explanation submitted during the course thereof by the assessee is not at all considered thus. There is no independent application of mind on the facts and explanati .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

urate particulars on the part of the assessee. Explanation - 1 to section 271 (1)(c) has no bearing on factor No. 1 but has a bearing only on factor No. 2. The explanation does not make the assessment order conclusive evidence that the amount assessed was in fact the income of the assessee. If the assessee gives an explanation which is reasonable Department cannot ignore it and impose penalty merely relying an observation in quantum. There is no material to show that the gifted amount by father .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

missible, they cannot operate as res-judicata. Penalty is not a matter of course and it is not attracted automatically simply because the addition have been sustained in quantum proceedings. On merits of the penalty, it is submitted that the cash of ₹ 10 lacs was deposited by the assessee out of the gift received by assessee from his father. The fact of receipt of gift is duly evident from the letter dated 10.01.2004 wherein, the assessee s father has conveyed the aforementioned gift to as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ive the evidence regarding source. The ld counsel further contends that for asking such questions from ailing father in Hindu society is sacrilegious. Reliance is placed on the decision of Hon'ble Supreme Court in the case of Sumati Dayal Vs. CIT 214 ITR 801 (SC) for the proposition that the inference can be drawn on the basis of human conduct, preponderance of probabilities and surrounding circumstances. In this case, adverse inference drawn ignoring the near death condition of ailing fathe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

87 ITR 349 (SC) Daulat Ram Rawatmull (iii) 103 ITR 344 (Patna) Sarogi Credit Corpn. (iv) 59 ITR 632 (Asm) Tolaram Daga (v) 32 TTJ 300 (Pune) (AT) ™ Suresh Kalmadi. (vi) 113 Taxation 11 (JP) (AT) 1993 Surindra Singh In reply to other allegations raised by the revenue authorities to draw an adverse inference in quantum proceedings, it is submitted that the occurrence of time gap between receipt of the amount and deposition of the same in the bank account does not in any way lead to the conc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sh was kept as a reserve amount to meet out the contingency of requirement of huge cash for treatment of assessee s father. After the death of father assessee could not realize that last deposit of cash could be doubted when he had sufficient sources in the shape of gift for such amount. Though, the expenses for treatment were met out by the assessee only, but the cash was kept in reserve to meet out any huge requirement of money if need so arises. Thus, merely because the cash was not deposited .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e had no intention to conceal the amount. It is further submitted that, apart from the amount of ₹ 10 lacs, the assessee also received the amount of ₹ 13.75 lacs from his father which fact was within the knowledge of the Ld. AO in as much as the same was mentioned on the gift letter itself, but the same was not at all doubted by the Ld. AO. Thus, the Ld. AO has accepted the source of amount received by assessee to the extent of ₹ 13.75 lacs and has also accepted the capacity of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he revenue to establish the explanation offered by assessee as wrong by leading material evidence which the revenue has miserable failed to do. Further, the Ld. AO as well as Ld. CIT(A) have placed complete reliance on the outcome of quantum proceedings and have simply borrowed the observations made thereon, without independent application of mind the penalty proceedings which according to the embellished law are completely distinct from the assessment proceedings. Further reliance is placed on .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version