9911796707
TMI Blog2019 (11) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... red in law in holding that neither there was any occasion nor purpose or reason to give gift by sister to her brother the Appellant. 4. The Ld. Commissioner erred in law in upholding the Order of Penalty passed u/s 271(1)(c) of the l. T. Act, 1961, by Assessing Officer." 2. Briefly stated, original assessment under Sec. 143(3) was framed by the A.O vide his order dated 27.02.2009. However, pursuant to the directions issued by the Commissioner of Income Tax-13, Mumbai, in exercise of the powers vested with him under Sec. 263 of the Act, the assessment framed by the A.O under Sec. 143(3), dated 27.02.2009 was set aside. Consequent to the directions of the Commissioner of Income Tax-13, Mumbai, a revised assessment order under Sec.143(3) r.w.s 263, dated 31.12.2010 was passed by the A.O assessing the total income of the assessee at Rs. 14,50,800/-. In the course of the assessment proceedings, the A.O not finding favour with the claim of the assessee that he had received a gift of Rs. 11 lac in cash from his elder sister Smt. Badamiben N. Shah, had thus made an addition of the said amount to the returned income of the assessee. Accordingly, the A.O after inter alia assessing the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el of the assessee are not applicable on the facts of the case. In none of those cases, it was emanating that gifts should be allowed when it is abundantly clear that the donor had no capacity to give the gift. 12. Accordingly, in the background of aforesaid discussion and precedent, we do not find any infirmity in the order of learned CIT-A. Accordingly we uphold the same." The miscellaneous application filed by the assessee i.e M.A. No. 459/Mum/2018 (arising out of ITA No. 2334/Mum/2012 ) was also dismissed by the Tribunal vide its order dated 24.06.2019. 5. The A.O after receiving the order of the CIT(A) issued a "Show cause‟ notice (for short "SCN‟), wherein the assessee was called upon to explain as to why penalty under Sec.271(1)(c) may not be imposed on him in respect of his wrong claim of having received a cash gift of Rs. 11 lac from his sister. The explanation advanced by the assessee in his attempt to impress upon the A.O that no penalty under Sec.271(1)(c) was called for in his hands, however, did not find favour with the A.O. Observing, that the assessee had deliberately raised a wrong claim of having received a cash gift of Rs. 11 lac, the A.O imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any merit, therefore, the same was liable to be dismissed. 9. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. As is discernible from the assessment order passed by the A.O under Sec.143(3) r.w.s 263, dated 31.12.2010, the amount of Rs. 11 lac claimed by the assessee to have been received as a gift in cash from his elder sister Smt. Badamiben N. Shah has been held to be a bogus gift transaction. As observed by us hereinabove, the A.O had added the aforesaid amount of Rs. 11 lac as the income of the assessee from undisclosed sources. The assessee had unsuccessfully assailed the assessment order in appeal before the CIT(A). As observed by us hereinabove, the order of the CIT(A) upholding the quantum addition of Rs. 11 lac made by the A.O had thereafter been approved by the Tribunal vide its order passed in ITA No. 2334/Mum/2012, dated 01.11.2017. 10. Observing, that the assessee had deliberately raised a wrong claim of having received a gift of Rs. 11 lac in cash from his sister, the A.O had vide his order dated 21.11.2012 imposed penalty of Rs. 3,35,888/- under Sec.271(1)(c) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serious doubts as regards its veracity. In our considered view, keeping in view the financial status of the assesse‟s sister, it can safely be concluded that she did not have the creditworthiness for gifting an amount of Rs. 11 lac in cash to the assessee. On a perusal of the order of the Tribunal in the quantum appeal of the assessee, we find that it has been the claim of the assessee that the source of the amount of Rs. 11 lac that was gifted by the assesse‟s sister was from the amount of gifts which she had received from her children viz. (i). Ms. Payal Kumari Nihalchand Jain (daughter) : Rs. 3,50,000/-; (ii). Ms. Reena Kumari Nihalchand Jain (daughter) : Rs. 3,00,000/-; and (iii). Shri Parag Kumar Nihalchand Jain (son) : Rs. 2,80,000/-. Apart therefrom, it was claimed that the balance amount of Rs. 1,70,000/- (out of the impugned cash gift of Rs. 11 lac) was sourced from the cash in hand available with the assesse‟s sister. We find that the aforesaid claim of the assessee was rejected by the Tribunal, wherein it was observed, that the daughters of the assesse‟s sister were students, while for the son had only recently taken up a job. Also, it was obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gift from his sister, was sourced from the gifts which she had received from her siblings and her personal savings is in fact a concocted story that was hatched in order to justify the availability of funds with her. In our considered view, the A.O had rightly observed that as the assessee had deliberately raised a wrong claim of having received a cash gift of Rs. 11 lac from his sister, therefore, the same tantamounts to concealment of income on his part. In the totality of the facts, we are in agreement with the view taken by the CIT(A) that the assessee had concealed his income as per the provisions of Explanation 1(B) to Sec. 271(1)(c) of the Act. At this stage, we may herein observe, that even in the course of the proceedings before us the assessee had failed to place on record any documentary evidence which would substantiate the genuineness of the gift transaction. Accordingly, finding no infirmity in upholding of the penalty imposed by the A.O under Sec. 271(1)(c) by the CIT(A), we find no reason to dislodge the well reasoned view taken by him. 14. Before parting, we may herein observe, that the ld. A.R in the course of the hearing of the appeal had submitted, that as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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