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TMI Blog2014 (6) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... that the explanation of the Assessee was found to be untrue – Relying upon CIT vs. Becharbhai Parmar [2012 (4) TMI 418 - GUJARAT HIGH COURT] - the penalty u/s 158BFA(2) is not mandatory in nature - Section 273B which provides that penalty shall not be imposed in certain cases on the assessee proving that there was reasonable cause for failure to pay tax refers to several provisions such as sections 271, 271A etc. makes no mention of Section 158BFA(2) - This still does not mean that penalty under section 158BFA(2) is mandatory – the additons have been upheld on estimation basis , thus, no penalty is leviable – Decided in favour of assessee. - I.T.(SS) A. No. 340/AHD/2011 - - - Dated:- 18-6-2014 - Shri G. C. Gupta And Shri Anil Chaturved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by ITAT 1 Investment in jewellery 11,09,881 11,09,881 3,43,318 2 Cash 50,820 50,820 24,020 3 Investment in valuable articles 19,2000 19,200 10,000 Total 11,79,901 11,79,901 3,77,338 4. Thus against the total addition of Rs 11,79,901/- as made by the AO, ITAT sustained the addition of Rs 3,77,338/-. On the aforesaid addition which was confirmed by Hon'ble ITAT, AO vide order dated 31.8.2010 levied penalty of Rs 2,60,363/- u/s 158BFA(2) of the Act. Aggrieved by the order of AO, Assessee carried the matter before CIT(A). CIT(A) vide order dated 7.2.2011 confirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of CIT(A), Assessee is now in appeal before us and has raised the following grounds;- 1. The learned CIT(A) has erred in law and on facts in confirming the penalty of Rs.2,60,363/- u/s, 158BFA(2) of the Act levied by the A.O. without proper consideration and appreciation of the facts of the case and relying upon the fact that the Hon'ble ITAT has partly confirmed the additions aggregating to Rs.3,77,338/- on account of unexplained investment in jewellery, undisclosed source of cash and unexplained investment in valuable articles. In view of elaborate facts, submissions and legal position filed before the A.O. and CIT(A) for non-levy of penalty, the impugned penalty of Rs.2,60,363/- requires to be deleted. 2. The learned CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition made by the AO was deleted by CIT(A). Against the order of CIT(A), Revenue preferred appeal before ITAT. Hon'ble ITAT confirmed the addition only to the extent of Rs 3,77,338 as against the total addition of Rs 11,79,901/- as made by A.O. On perusing the order of Tribunal, it is seen that the addition on account of cash and investment in articles were sustained on estimated basis. With respect to the addition on account of investment in jewellery it is seen that Assessee had stated to have received the jewellery from her sister in Nairobi but in the absence of any supporting declaration filed before customs/ immigration, addition to the extent of 190 gms of jewellery was sustained. In the present case there is nothing to suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined. In other words, the penalty under section I58BFA(2) is not mandatory in nature. It is true that Section 273B which provides that penalty shall not be imposed in certain cases on the assessee proving that there was reasonable cause for failure to pay tax refers to several provisions such as sections 271, 271A etc., makes no mention of Section /58BFA(2). This still does not mean that penalty under section 58BFA(2) is mandatory. 9. Considering the totality of the facts more so in view of the fact that additons have been upheld on estimation basis and in view of the decision of the co-ordinate Bench cited hereinabove, we are of the view that no penalty is leviable in the present case. We accordingly direct the AO to delete the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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