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Income Tax Appellate Tribunal, MUMBAI BENCHES, ‘A’ MUMBAI
Before: Shri Joginder Singh, & Shri Rajesh Kumar
आदेश / O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned orders both dated 07/01/2011 of the Ld. First Appellate Authority, Mumbai. First, we shall take up the appeal of the assessee ( ). 2. During hearing, the ld. counsel for the assessee, did not press ground numbers 1 to 3 with respect to issuance of notice u/s 148 and violation of principle of natural justice. Considering the request of the assessee, these grounds are dismissed as not pressed. 3. The only ground i.e. ground number 4 is with respect to addition made u/s 68 of the Income Tax Act, 1961 (hereinafter the Act) amounting to Rs.31,87,373/- towards gift received from Shri Subhash Dudani. The crux of argument advanced on behalf of the assessee is that the donor is the close family friend of the father. It was claimed that at the relevant time, the donor could not be produced before the Assessing Officer. However, Shri A.Ramachandran, ld. DR, contended that the genuineness of the gift is in doubt and Shri Subhash Dudani is a habitual donor had been giving gift to other persons also.
3 5853/Mum/2013 Kapil Arvindkumar Parekh 3.1. We have considered the rival submissions and perused the material available on record. We find that the impugned addition was made u/s 68 of the Act by the Ld. Assessing Officer as the assessee could not proved the genuineness of gift received from an NRI Shri Shubhash Dudani in the form of Resurgent India Bonds amounting to Rs.73,536/- US $ (on maturity). The donor is not relative of the assessee. The donor did not appear before the Assessing Officer for examination. Without going into much deliberation and as agreed by the assessee Shri Subhash Dudani (donor) is directed to appear before the Assessing Officer on 23/08/2016 (as suggested by Shri Dudani himself). The ld. Assessing Officer is directed to examine Shri Dudani to ascertain the genuineness of the gift and to fully satisfy himself, therefore, this ground is sent to the file of the ld. Assessing Officer for adjudication in accordance with law. As pointed out to the ld. DR also, the ld. Assessing Officer is directed to examine to Mr. Dudani either on 23/08/2016 or on a nearest possible date mutually decided by them with the consent of the donor i.e. Shri Subhash Dudani. The assessee be given opportunity of being heard with further liberty, if any, in support of his claim. Thus, this ground is allowed for statistical purposes.
Now, we shall take up the penalty appeal (ITA No.5853/Mum/2013) of the assessee challenging imposition of penalty u/s 271(1)(c) of the Act. We find that the penalty was imposed by the Assessing Officer with respect to alleged gift. Since, the quantum addition on alleged gift has been sent to the file of the Assessing Officer with a direction that the 4 5853/Mum/2013 Kapil Arvindkumar Parekh donor shall appear before the Assessing Officer on 23/08/2016, the penalty appeal in all fairness is also sent to the file of the ld. Assessing Officer for adjudication in accordance with law as the penalty is offshoot of quantum addition, thus, this appeal is also allowed for statistical purpose. Finally, both the appeals of the assessee are allowed for statistical purposes in terms indicated hereinabove. This order was pronounced in the open court in the presence of the ld. representatives from both sides at the conclusion of the hearing on 28/07/2016.