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TMI Blog2016 (5) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the penalty issue, nothing adverse has been commented thereon except the finding of the ITAT. It is a settled law that penalty proceedings are distinguished and separate and assessee can raise fresh plea in the penalty proceedings, which has been done in this case. Having raised proper explanation and please in the penalty proceedings, it was incumbent on the CIT(A) to have considered the reply as an appellate authority and given proper findings. The mere reference to ITAT in quantum proceedings, which are separate and distinguish, cannot partake a character of exercise of appeal discretion by the ld CIT(A). In view thereof, the case before us is not fit for imposition of penalty, the same is deleted. - Decided in favour of assessee - ITA No. 464/JP/2015 - - - Dated:- 30-3-2016 - SHRI R.P. TOLANI, JM AND SHRI VIKRAM SINGH YADAV, AM For The Assessee by : Shri Manish Agarwal (CA) For The Revenue : Shri Raj Mehra (JCIT) ORDER PER: R.P. TOLANI, J.M. This is an appeal filed by the assessee against the order dated 09/03/2015 passed by the learned CIT(A)-II, Jaipur for A.Y. 2006-07. The sole effective ground of appeal is as under:- 1. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posits is a gift received from his late father, aged over 90 years and suffering from cancer. The ITAT, Jaipur, in ITA No.889/JP/2009 vide dismissing the appeal of the assessee and upholding the above addition made by the Assessing Officer, has held, on page-7 of the appeal order that- The capacity of the ostensible donor thus remains totally unproved. As afore- stated, and as would also be apparent from the foregoing, the assessee s explanation is also inflicted by inference of lack of genuineness, which stems from the factual and circumstantial gaps in his explanation, which is unsubstantiated, and which we shall examine next. In view of the above discussion, it is held that the appellant has not been able to substantiate his explanation and has failed to prove that this explanation is bonafide and that all facts material to the computation of income have been disclosed by him. Therefore, levy of penalty u/s 271(1)(c) on this issue is upheld. 5. Aggrieved, the assessee is in appeal before us. The ld counsel for the assessee contends that the Ld. CIT(A) has upheld the penalty merely because the addition has been sustained in the quantum assessment proceedings; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was deposited by the assessee out of the gift received by assessee from his father. The fact of receipt of gift is duly evident from the letter dated 10.01.2004 wherein, the assessee s father has conveyed the aforementioned gift to assessee. The contents of the said letter have neither been doubted nor been rebutted by the Ld. AO or CIT(A). The gift received by the assessee from his ailing father is genuine on following reasons: (i) The assessee s father has himself stated that the gift was given by him out of savings from sale of his agricultural land in his hometown Gopalpur in U.P. While receiving the gift from his ailing father, the assessee cannot ask as to how he could saving the money where he was kept and he should give the evidence regarding source. The ld counsel further contends that for asking such questions from ailing father in Hindu society is sacrilegious. Reliance is placed on the decision of Hon'ble Supreme Court in the case of Sumati Dayal Vs. CIT 214 ITR 801 (SC) for the proposition that the inference can be drawn on the basis of human conduct, preponderance of probabilities and surrounding circumstances. In this case, adverse inference drawn ignoring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account wherein, he receives his professional receipt and which account stands disclosed to the department already. Thus, it can be seen that the assessee had no intention to conceal the amount. It is further submitted that, apart from the amount of ₹ 10 lacs, the assessee also received the amount of ₹ 13.75 lacs from his father which fact was within the knowledge of the Ld. AO in as much as the same was mentioned on the gift letter itself, but the same was not at all doubted by the Ld. AO. Thus, the Ld. AO has accepted the source of amount received by assessee to the extent of ₹ 13.75 lacs and has also accepted the capacity of the assessee s father to gift so much amount to his son (the assessee), but has doubted only the amount of ₹ 10 lacs which shows a clear contradictory stand on part of the assessee. Thus, in the facts and circumstances of the case and the submission made above it is submitted that the assessee has discharged his onus of proving the source of amounts deposited by him in his bank account and source of part amount and capacity of donor has been admitted by Ld. AO. Thus, the onus shifted on the revenue to establish the explanation offere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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