9911796707
TMI Blog2008 (4) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2006. In response to which the assessee filed return declaring income of ₹ 71,830 on 24th April, 2006. The assessee derives income from interest and miscellaneous income. The action under s. 147 was initiated on the basis of information received by the learned AO that the assessee had taken bogus entries of ₹ 2,00,000 in the garb of share transaction and introduced her undisclosed cash in fake long-term capital gain. Even in the return of income filed in compliance to notice, no such income was disclosed by the assessee. During the assessment proceedings it was claimed by the assessee that she had received gift of ₹ 2,00,000 from one Shri Girish Goel of Delhi. This amount was surrendered by the assessee during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to prove that the gift is non-genuine, the fact that the addition of the impugned amount was not contested by the appellant would not automatically render it income in respect of which particulars have been concealed. The appellant has claimed the impugned amount to be a gift. Since this explanation of the appellant has not been found by the AO to be false, the provisions of Expln. 1 to s. 271(1)(c) would not apply. 3. Now the Revenue is aggrieved and has taken the plea that the assessee has changed the theory regarding this receipt from long-term capital gain to receipt by way of gift and has stated that she has voluntarily surrendered the amount as she could not prove the same. It has been contended that the assessee has misera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to notice under s. 148 of the Act. I have gone through the assessment order, a copy of which is on record, as well as have carefully perused the penalty order. My attention was drawn to para No. 8 at p. 3 of the penalty order in which the learned AO has observed that I have gone through the case record of the assessee and the reply of the assessee. The facts of the case clearly speak that actually no transaction of shares took place. The assessee has taken bogus entry of gift of ₹ 2,00,000 in financial year 1998-99 to convert the black money into white money. Even during the course of reassessment proceedings the assessee has not disclosed this fact . From the penalty order it transpires that the AO was not sure as to whether the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 210 CTR (SC) 259 : (2007) 292 ITR 11 (SC). Adverting to the facts of the given case the assessee had never disclosed long-term capital gains to the Department. The Department came to the knowledge of such a long-term capital gain from third party which was never confronted to the assessee. Merely writing in the penalty order that the assessee had a mala fide intention in not disclosing gifts of ₹ 2,00,000 which was treated by the AO as bogus would not suffice. The Revenue has to further prove something more. When the assessee could not prove the gift in question she voluntarily surrendered this amount to buy peace. In my considered opinion this is not a case of guilty mind where the mens rea has been established by the Revenue. Simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, the provisions of Expln. 1 to s. 271 (1)(c) would not apply. Simply because the assessee has surrendered the income only to buy peace and because the persistent requirement of proof by the learned AO could not be complied with by the assessee would not lead to the conclusion that the assessee has concealed taxable income. There is no proof of bogus long-term capital gains in the hands of the assessee. Entire proceedings rest on guesswork and general observations. None of the ingredients of s. 271(1)(c) has been established. The surrender is not of long-term capital gain but it was a surrender of the gift amount, so it cannot be said that the surrender was the result of detection by the Department. The Department only referred to l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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