TMI Blog2021 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... ised return of income nor investigated about the creditworthy of donor and genuineness of donor by issuing any notice under section 133(6) of the Act or summon under section 131 of the Act. The AO simply held that assessee concealed the income. We have further notices that the assessee voluntarily offered the amount of gift as additional income, therefore, the assessee has no right to challenge the action of AO in holding the gift as non-genuine. Penalty proceedings are separate and independent. It is an admitted fact that assessee offered the additional income, though, after issuing notice under section 142(1) by AO. Assessee was having in position of certain evidence in the form of declaration, details of donor and PAN number which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firming penalty on gift received from the different persons of ₹ 9,07,224/-. 2. The Ld. CIT(A) has not considered the fact that all the donors having PAN No. and given gift declaration also to prove their willingness and genuineness. 3. The Ld. DCIT and Ld. CIT(A) has not taken into consideration that the assessee has voluntarily offered gift as additional income to buy peace of mind, avoid harassment and avoid further litigation and subject to non levy of penalty. 4. The Ld. DCIT and Ld. CIT(A) has not made any proper justification for imposing penalty or considered the facts property. 5. The relief as claimed by the Appellant may kindly be allowed in toto. 6. The Appellant reserves to the right to add, amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as additional income and paying tax thereon. The explanation furnished by the assessee and the revised return was not accepted by the A.O. The AO held that the revised return of income is belated (time barred) and the explanation of assessee is not acceptable. The AO maintained addition of non-genuine gift in the assessment order passed under section 143(3) read with section 254 of the Act. The A.O. again initiated penalty under section 271(1)(c) of the Act. 4. The AO issued show cause notice under section 274 r.w.s 271(1)(c) of the Act dated 28.03.2013. The assessee filed its reply as recorded by the AO in para 5 of the penalty order. In the reply, the assessee reiterated that he has received gift from different donors in A.Y. 2003-04, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee submits that he has two fold submissions, first on technical/legal issue and second on merits of the case. The ld. AR submits that the AO while issuing notice under section 271(1)(c) r.w.s. 274 has not specified the specific charge by not striking out the inappropriate portion in the notice. The copy of notice dated 28.03.2013 is filed on record. The ld.AR further submits that while passing the assessment order in order giving effect to the order of Tribunal on 28.03.2013, the A.O. has not specified the specific charge. The AO mentioned that penalty proceedings under section 271(1)(c) are initiated for the concealment of income by way of furnishing inaccurate particulars of income. Again while levying the penalty again not specify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, though the gifts were genuine and voluntarily agreed to offer the same for taxation, no penalty is leviable on the assessee. To support his contention, the ld.AR relied upon the decision of Mumbai Tribunal Earthmoving Equipment Service Corporation Vs DCIT, [2017] 84 taxmann.com 51 (Mumbai Tribunal). 7. On the other hand, the ld.Departmental Representative (DR) for the Revenue submits that it is a fit case for levy of penalty. The assessee despite giving sufficient opportunity failed to prove the genuineness of gift. The assessee in a restoration proceedings again, failed to discharge his onus to prove the genuineness of gift. The assessee finding no other way has offered the gift as additional income. The offer of additional income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and that the assessee has offered the amount of gift as an additional income in revise return of income. The AO while passing the assessment order not accepted the revised return by taking view that revised return is beyond the prescribed period of limitation under section 139 (5) of the Act and initiated penalty. The AO initiated penalty for concealment of income by way of furnishing inaccurate particulars of income. The contention of ld.AR of the assessee before this Tribunal is that assessee has not concealed any particulars of income, since the assessee could not bring all the donor before the AO as they were not co-operating. However, their complete particulars was provided to the AO. We have noted that the AO neither accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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