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M/s. Amrutlal Punjabhai Patel HUF) , C/o. Dr. Dipak Patel Versus ITO, Ward 3 (2) , Surat

2017 (2) TMI 323 - ITAT AHMEDABAD

Penalty u/s 271(1)(c) - bogus gifts - Held that:- the case of the assessee represents a classic case of creating the dubious capital. The assessee is owned agricultural income which has been found to be not justified and the gifts from co-owner brother Shri Vinodbhai Patel has been found to be not correct as the bills were found to be bogus. In view of these facts and circumstances, I find no infirmity in the order of the ld. CIT(A) which is upheld. Accordingly, this appeal of the assessee is di .....

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2. The grounds raised in ITA No.1710/Ahd/2013, i.e. quantum appeal, read as under: (1) On the facts and circumstances of the case and law on the subject, the CIT(A) has wrongly held that the "a" had not argued Gr. No.2 challenging the Re-opening of the assessment u/s 148. (2) On the facts and circumstances of the case & law on the subject, the CIT(A) has totally ignored the affidavit of the counsel regarding the arguments before CIT(A). (3) On the facts and circumstances of the ca .....

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received as under:- a. Santokben P. Patel Rs.8,28,000/- b. Santokben P. Patel (ornament) Rs.2,12,826/- c. Amrutlal P. Patel Rs.9,00,000/- Rs.19,40,826/- 3. The ld. Counsel for the assessee contends that this is second round of appeal. The ITAT, Ahmedabad Bench vide order dated 22.02.2011 in ITA No.3740/Ahd/2008 had set aside the matter to ld. CIT(A) by following observations:- 4.1 Considering the totality of the facts and circumstances of the case, we are of the view that it will meet the ends .....

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s. Resultantly, for statistical purposes, the appeal of the assessee is treated as allowed. 3.1 Consequent thereto, ld. CIT(A) re-decided the appeal as under:- 4. Decision: The Hon'ble ITAT had directed that it should be verified whether the appellant had argued the ground No.2 challenging the reopening of assessment u/s. 148 before the CIT(A). The CIT(A) in his order dated 25.07.2008 has mentioned, "Ground No. 1 - In this ground of appeal, the assesses has contested the initiation of p .....

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ssions made before the CIT(A) (my predecessor) in the appeal proceedings before him but the appellant did not file the copy of the written submissions which he had filed during the course of appeal proceedings on 1.07.2008. This only confirms that the appellant had not presented any argument in its written submission on this ground of appeal before the CIT(A) when the hearing took place on 01.07.2008. 4.3 During the present appeal proceedings which are for limited purpose of verifying whether an .....

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e Ground No.2 regarding reopening of assessment was correctly dismissed by my predecessor vide his order dtd. 25- 07-2008. The other grounds of appeal have been dealt in detail and adjudicated by CIT(A) in his order dtd. 25-07-2008 and these are not required to be adjudicated again as no fresh facts have been submitted before me. 4.5. During the present appellate proceedings before me, the appellant raised an additional ground of appeal which had not been raised either before the ITAT or the CIT .....

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le ITAT vide its order dated 22.02.2011 set aside specific issue to the CIT(A) with a very specific directions which was "to verify whether the counsel of the assessee actually argued the ground No. 2 challenging the reopening of assessment under Sec. 148 of the IT Act, 1961." The jurisdiction of the undersigned in the present proceedings are only for this limited purpose and no more. Therefore considering this, the additional ground of appeal filed on 17.03,2012 subsequent to the orde .....

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djudicated. The additional ground being raised by the assessee was not raised in the original proceedings, it is beyond the purview of the order of ITAT. Besides, it is totally a new ground, factual in nature and will require adjudication of facts. Consequently, the additional ground should not be admitted. 4. I have heard the rival contentions, perused the material available on record and gone through the orders of the authorities below. I find merit in the contention of ld. DR that the subject .....

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e the original proceedings. In view of these facts and circumstances, the additional ground raised by the assessee cannot be admitted. Therefore, the plea in this behalf is dismissed. 5. Apropos main grounds, ld. Counsel for the assessee reiterated the affidavit filed before the lower authorities and written submissions to the effect that there is neither sufficient reason for reopening of assessment nor there is issuance of notice u/s 143(2) of the Act and the ITAT has jurisdiction to examine a .....

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r due verification of records, has held that no arguments were made by the assessee at the time of hearing, no 154 application was ever filed before the CIT(A) to indicate that Ground No.2 regarding re-opening was contested and not decided. The assessee is building small trick to wriggle out of the situation by hook or by crook and entered in multiplicity of proceedings to diverge the attention from actual facts. 7. I have heard the rival contentions, perused the material available on record and .....

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e, The Learned Commissioner of Income Tax(Appeals) has stated that AR is not keen to press this ground or has no substantive argument against the action taken by the AO and he dismissed my appeal. I reiterate that I had vehemently argued the validity of the proceedings under section 147 of The Income Tax Act,1961 before the CIT(A)-II, Surat. I have filled this affidavit to submit in my appeal no 3740/Ahd /2008 before the Honorable ITAT-Ahmedabad. 7.1 The contents of the deposition have been cate .....

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nt were filed. The inference that the assessee did not contest ground No.2 is further supported by the fact that the assessee did not file any 154 application before the ld. CIT(A) for non-adjudication of the ground. Thus, the glaring facts and inconsistencies in assessee s submissions are to the effect that though written submissions were filed, no submissions were made about the reopening and after receipt of the order, the assessee did not seek the most efficient remedy of filing any 154 appl .....

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s upheld. The assessee s appeal is accordingly dismissed. 8. Apropos ITA No.1711/Ahd/2013, i.e. the appeal against penalty imposed u/s 271(1)(c) of the Act, the ld. Counsel for the assessee contends that there is neither any concealment of income nor any furnishing of inaccurate particulars of income. The assessee filed following documents:- (1) The donors have confirmed the gift. (2) The 'a' had filed the gift deed as well as affidavit of the donors confirming the gift. (3) The donors a .....

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rm at any time. (6) The donors are the members of the hindu undivided family and not any outsider." 8.1 The ld. CIT(A) upheld the penalty by following observations:- 6. I have gone through the order of penalty u/s. 271(1)(c), submission of the appellant and the assessment record. From the assessment record, it is seen that the appellant had not filed the balance sheet and the capital accounts of the donors before the AO. The CIT(A) vide his order dated 25.07.2008 has also held that the retu .....

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