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TMI Blog2014 (6) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of search - Matter reached upto Tribunal and jewellery weighing 191.1 gms remained unexplained and it was considered to be acquired out of undisclosed income Rs. 95,550/- and the figure was arrived at by giving benefit of doubt to the assessee in all respects i.e. due credit was given for possession of jewellery of all family members including married daughter, inheritance or parents and in view of CBDT Instruction No. 1916 – there is no need to interfere with the order passed by CIT(A) in confirming the action of AO in levying penalty u/s. 158BFA(2) of the Act – Decided against Assessee. - IT (SS) A No. 324/Ahd/2011 - - - Dated:- 23-5-2014 - Sri D. K. Tyagi And Shri N. S. Saini,JJ. For the Petitioner : Sri O. P. Vaishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lain as to why penalty be not levied. Appellant requested the Assessing Officer to keep penalty proceedings u/s. 158 BFA(2) in abeyance till disposal of appeal by ITAT. Accordingly, on appellant's request, penalty proceedings were kept in abeyance. Appellant did not inform the Assessing Officer about disposal of appeals by ITAT. As mentioned in para 6(vi) of the penalty order, since ITAT s order was not received by the CIT, Dy, Registrar, ITAT was requested to send certified copy of ITAT's order, which was then received on 20.7.2009 by C.I.T.-II, Baroda. Penalty order was passed within six months of the date of receipt of order by CIT-II, Baroda. Letter dated 22.7.2010 by Asstt. Registrar, ITAT, Ahmedabad providing information to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking into consideration the submission of the assessee which has been reproduced by him in para 3.1 of his order has confirmed this penalty by observing as under:- 3.2. I have carefully considered facts of the case and appellant's submissions. During the course of search, 1576.1 gms. of gold jewellery was found from appellant's possession, out of which Assessing Officer accepted 935 gms, as explained on the basis of preliminary statements of appellant and his wife, recorded u/s.132(4). The appellant in his statement averred that there were 50 tolas of gold ornaments belonging to his wife and both daughters. His wife, Smt, Ritaben D. Chokshi, in her statement u/s.132(4) submitted that she had received 20 tolas of gold ornaments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 35 tolas only. Appellant's contention that statements u/s.132(4) were placed undue importance by the Assessing Officer is not correct. Assessing Officer has only culled out facts as stated by appellant and his wife in the statement u/s.132(4). Appellant's further contention that due weightage for inheritance of jewellery by self was not given by the Assessing Offlcer/ITAT is also not correct since Assessing Officer allowed credit of 135 gms. of gold jewellery in the hands of appellant as against claim of 174 gms,, only on the basis of CBDT's instruction No.1916 and the preliminary statement u/s.132(4) regarding inheritance from parents without even there being any documentary evidence. Overall, I am of the view that after ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and placing reliance on the judgment of hon ble jurisdictional High Court in the case of CIT v. Becharbhai P. Parmar reported in 341 ITR 499 submitted that levy of penalty u/s.158BFA(2) is not mandatory and therefore since jewellery weighing 1576.1 gms was found at the time of search out of which only jewellery weighing to the extent of 191.1 gram could not be explained by the assessee, penalty be not levied simply because the explanation offered by the assessee in respect of even this jewellery was not found satisfactory by the income tax authorities. It was also submitted that assessee being a retired person a lenient view may kindly be taken. Ld. DR on the other hand submitted that there is no dispute about the fact that assessee fail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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