TMI Blog2019 (11) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... to concealment of income on his part. 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. 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. - Decided against assessee - ITA No.7295/Mum/2017 - - - Dated:- 8-11-2019 - Shri Ravish Sood, Judicial Member And Shri N.K. Pradhan, Accountant Member For the Appellant : Shri Ramesh Sahu, A.R For the Respondent : Shri V. Vinod Kumar, D.R ORDER PER RAVISH SOOD, JM The present appeal filed by the assessee is directed against the order passed by the CIT(A)-28, Mumbai, dated 06.09.2017, which in turn arises from the order passed by the A.O under Sec. 271(1)(c) of the Income Tax Act, 1961 (for short Act‟), da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appeal. 4. Being aggrieved with the sustaining of the addition of ₹ 11 lac by the CIT(A), the assessee had carried the matter in appeal before the Tribunal. However, the Tribunal vide its order passed in ITA No. 2334/Mum/2012, dated 01.11.2017, not being persuaded to subscribe to the contentions advanced by the assessee as regards the genuineness of the impugned cash gift of ₹ 11 lac which was claimed to have been received by him from his sister, dismissed the appeal. The Tribunal while dismissing the appeal of the assessee had observed as under : 10. We have carefully considered the submissions and perused the records. We find that in this case the assessee has claimed to have received a gift of ₹ 11 lacs from his elder sister. The sister had shown statement of income of ₹ 93,112/- for assessment year 2007-08. No return of income was filed. The source of gift in the hands of the sister has been further explained as gift from her two daughters and son at ₹ 3,00,000/-, ₹ 3,50,000/- and ₹ 2,80,000/- respectively. Rest amounts have been claimed to have come from the opening balances in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for receiving the gift, and also the fact that he had never reciprocated any gift transaction with his sister, the CIT(A) was not inclined to accept the claim of the assessee that he had received a genuine gift from his sister. It was observed by the CIT(A) that though the assessee had came forth with a superficial explanation, however, as he had failed to substantiate the same, therefore, the bonafides of the same could not be proved. Accordingly, the CIT(A) holding a conviction that the explanation offered by the assessee was flimsy and unsubstantiated, therefore, the onus cast upon him in terms of Explanation 1(B) had remained undischarged. On the basis of his aforesaid deliberations the CIT(A) dismissed the appeal. 7. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short A.R‟) for the assessee at the very outset of the hearing of the appeal submitted, that the assessee being aggrieved with the order of the Tribunal wherein the quantum assessment had been confirmed has preferred an appeal before the Hon‟ble High Court. Apart therefrom, it was submitted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case in the backdrop of the orders of the lower authorities and the contentions advanced by the authorised representatives for both the parties. It has been the claim of the assessee that he had during the year under consideration received a gift of ₹ 11 lac in cash from his elder sister Smt. Badamiben N. Shah. As can be gathered from the orders of the lower authorities, the genuineness of the gift transactions was not accepted by them, for the reason, that neither the creditworthiness of the donor nor the genuineness of the transaction was established. Apart therefrom, it was noticed that the assessee had also failed to place on record the occasion for having received the aforesaid gift. Also, the absence of any such occasion where the assessee had reciprocated a gift transaction with his sister, also did not inspire any confidence as regards the genuineness of the gift transaction with the lower authorities. In fact, as observed by the CIT(A), the assessee had only succeeded in establishing the identity and the relation of the donor. On a perusal of the financial status of the donor i.e the elder sister of the assessee Smt. Badamiben N. Shah, we find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, that the assessee in order to substantiate the genuineness of the gift transaction had neither placed on record any statement of the bank account of his sister, nor filed any working to substantiate that the balance amount was soured from the cash in hand available with her. 12. We have deliberated at length on the issue under consideration, and are unable to persuade ourselves to subscribe to the claim of the ld. A.R that the assessee had received a genuine gift from his elder sister. In fact, a perusal of the orders of the lower authorities and the material available on record not only reveals that the assessee had failed to establish the creditworthiness of the donor, but the very fact that the impugned gift had been received in cash also does not inspire any confidence as regards the genuineness of the transaction itself. Also, we are in agreement with the view taken by the CIT(A), that the assessee could not point out the occasion for receiving a substantial amount of ₹ 11 lac as cash gift from his sister, who herself was a person of limited financial means. Further, the fact that the assessee had also not placed on record a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has preferred an appeal before the Hon‟ble High Court, therefore, for the said reason the penalty proceedings may be kept in abeyance. In order to drive home his aforesaid contention, the ld. A.R had relied on the judgment of the Hon‟ble High Court of Bombay in the case of a Commissioner of Income tax -10, Mumbai Vs. M/s Wander Pvt. ltd. (ITA No. 2753 of 2010, dated 21.08.2012). We have perused the aforesaid judgment of the Hon‟ble High Court and are of the considered view that as the same is distinguishable on facts, therefore, it would not assist the case of the assessee. In the aforesaid case, as the appeal of the assessee having been admitted by the Hon‟ble High Court was pending adjudication, therefore, it was observed that no prejudice would be caused to the revenue by the order of the Tribunal which had restored the issue of levy of penalty under Sec. 271(1)(c) to the file of the A.O, with a direction, that the same may be decided after receipt of the decision of the Hon‟ble High Court on the quantum appeal of the assessee. As in the case of the assessee before us, the appeal had only been filed with Hon‟ble High Court and had not been ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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