Jackie Shroff, Mumbai vs Assessee

आयकर अपीलीय अिधकरण, अिधकरण मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'J' MUMBAI सव ौी आय.पी. बंसल, याियक सदःय एवं ौी आर.सी. शमा , लेखा सदःय के सम BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER

ITA NO.4224/MUM/2013(A.Y. 2006-07)

Mr. Jackie Shroff, The I.T.O 11(1)(2), 1401, Vastu Towers Co-op. Hsg.Socy, Aaykar Bhavan, MK Road, Bandstand Road, Bandra (West), Vs. Mumbai 400020 Mumbai 40050. (Respondent) PAN: AAJPS 6596A (Appellant )

Appellant by : Shri Jeetendra Jain Respondent by : Shri Akhilendra Yadav Date of hearing : 05/03/2015 Date of pronouncement : 05/03/2015

ORDER

PER I.P.BANSAL, J.M:

This is an appeal filed by the assessee and is directed against order passed by Ld. CIT(A)-3, Mumbai dated 26/04/2013 for assessment year 2006-07. Grounds of appeal read as under:

"The Commissioner of Income Tax (Appeals)-3 [hereinafter referred to as CIT (A)] erred in holding that Income Tax Officer, 11(1)(2), Mumbai (hereinafter referred to as the ITO was right in levying concealment penalty under section 271(1)(c) for the above year on school fees paid of Rs. 16,44,426/- on the ground that the Appellant has not been able to explain the identity and source of payment of the same. The Appellant submits that he has disclosed all the material facts relevant to the payment and as such he 2 ITA NO.4224/MUM/2013(A.Y. 2006-07)

has not concealed the identity or source of payment of the same and that merely because the Appellants explanation has not been accepted by the ITO cannot lead to addition as unexplained credit under section 68 of the Act so as to enable the ITO to levy concealment penalty under section 271(1)(c)."

2. At the outset it may be mentioned here that Ld. CIT(A) has given substantial relief to the assessee, therefore, it was considered necessary to enquire from the Department that whether or not any appeal has been filed by the Revenue against impugned order passed by Ld. CIT(A). Upon such enquiry it has been mentioned by Ld. DR that Department did not file any appeal against impugned order passed by Ld. CIT(A). It is under these circumstances, we proceed to decide the present appeal. The letter submitted by Ld. DR is placed on our record, in which he has stated that as per telephonic conversation with the AO he has informed that no appeal has been filed by the Department against impugned order passed by Ld. CIT(A).

3. The impugned penalty was levied on two additions aggregating to Rs. 1,37,26,052/- (Rs.16,44,426/- as school fee of the children and Rs.1,20,81,606/- being amount received from producers as advance). The subject matter of present appeal is addition on account of school fee, as on other additions Ld. CIT(A) has deleted the concealment penalty.

3.1 School fee of children was added by the AO in the assessment order as per following observations:

"[2.8) School fees of children:

An information was received from CIB that there was an amount of Rs.14,44,426/- paid during the year to American School of Bombay as annual fees of his two son Jai Shroff and Krishna Shroff. The assessee was asked regarding details and source of the payment of fees to which the assessee has not submitted any satisfactory explanation in respect of 3 ITA NO.4224/MUM/2013(A.Y. 2006-07)

genuineness and source of foreign exchange remittance received from the assessee's mother-in-law therefore the same Rs.16,44,426/- is being added to the total income being unexplained investment u/s. 68 of the Act. Penalty proceedings u/s. 271(1)(c) is being separately initiated for furnishing inaccurate particulars of income."

The aforementioned addition has been confirmed by the Tribunal in quantum proceeding vide order dated 21/11/2012 passed in ITA No.7843/Mum/2010, copy of which is placed at pages 8 to 14 of the paper book. The addition has been confirmed as per following observations:

"12. Ground No. 8 relate to the addition of Rs. 16,44,426/- as unexplained cash credit u/s. 68 of the Act.

13. A perusal of the assessment order shows that the assessee has claimed that the school fees of his children amounting to Rs. 16,44,426/- was paid by his mother-in-law. We find that similar issue had come up for hearing before us in ITA No. 6457/M/08 pertaining to A.Y. 2005-06 wherein we have held at paras 15 & 16 in pages 5,6&7 as under:

"We have considered the submissions. We find that on the basis of the information received from the office of the Addl. Commissioner of Income Tax (CIB)-II, the notices are exhibited at Pages 39 & 40 of the Paper Book, the AO confronted the information received from the CIB to the assessee and gave reasonable opportunity to explain the sources of payment of fees of Rs. 7,83,313/- +8,22,213/- to American School of Bombay. We also find that the assessee has filed a simple confirmation and copy of the passport exhibited at pages 42 & 43 of the Paper Book . The confirmation received is as under:

To Whom it may concern

I, Mrs Clpaude M. Grout, a Regian national holding passport number EE788193 and residing at 163 Baron de Gieylaan, de Pinte, Belgium, hereby do confirm that I have arrange to pay the school fees of my grand children, Jai Shroff and Krishna Shroff for the year 2004-05.

Yours truly, 4 ITA NO.4224/MUM/2013(A.Y. 2006-07)

Mrs. Claude M. Grout

16. On a careful consideration of the above confirmation, we find that it does not even mention the amount which has been paid by Mrs. Claude M. Grout nor she has given any details of her bank account , further , the mode of payments has also not been mentioned . Even the assessee has not filed any other corroborative evidence to substantiate his claim that the payment of school fees has been made by his mother-in-law. Even before us the assessee could not supply the copy of the bank statements from which the amount has been transmitted to India. But the fact is that payment Of Rs.1644426.00 has been made to the School therefore it is on the assessee to explain the sources from which the payments have been made. Considering the facts in totality, in our humble opinion, the assessee has failed to discharge the onus cast upon him. We do not find any reason to interfere with the findings of the Ld. CIT(A) therefore addition of Rs. 16,44,426/- is confirmed. This ground of the assessee is dismissed.

As the person is the same from whom the school fees have been claimed to have been paid and the source and the genuineness of the transaction has not been accepted by us in the earlier year, following our own findings, ground No.8 is dismissed."

3.2 Against the aforementioned order passed by the Tribunal an appeal was filed by the assessee before Hon'ble Bombay High Court and vide order dated 03/04/2013 passed in Income Tax Appeal No.240 of 2013 the following questions of law have been admitted and copy of such order has been filed at page-15 of the paper book.

INCOME TAX APPEAL No.240 of 2013

Mr. Jackie Shroff ... Appellant Versus

The Commissioner of Income Tax, City XI, Mumbai .... Respondent

Mr. Jeetendra Jain with Mr.B.D. Damodar by M/s. Kanga & Co. for the appellant 5 ITA NO.4224/MUM/2013(A.Y. 2006-07)

Mr.PC Chhotaray for the respondent.

CORAM : J.P.Devadhar & M.S.Sanklecha, JJ Date : 3d April 2013 P.C.:

1. Heard. Admit on the following substantial questions of law.

"a) Whether, on a true and proper construction of Section 145 of the Act, the Tribunal was justified in rejecting the method of accounting regularly employed by the appellant and accepted by the Revenue?

b) Whether discharge of moral obligation of the Appellant directed by his mother-

in-law without any repayment obligation can be brought to tax under Section 68 of the Income-tax Act?"

(M.S. Sanklecha, J) (J.P.Devadhar, J.)

3.3 On these facts, it is the case of the assessee that on merits penalty is not

leviable as the assessee has submitted an explanation that in view of financial difficulty being faced by the assessee, the school fees of the children were paid by the mother-in-law of the assessee and this explanation was submitted to the AO during the course of assessment proceedings vide submission dated 19/07/2007 and it is also reproduced in the assessment order as under.

"As regards payment of school fees of my children, I wish to inform you that my mother-in-law, Ms. Claude M. Grout had arranged to pay the same for the relevant assessment year. A copy of her confirmation and passport in support of the same is enclosed herewith for your record."

3.4 It was submitted that mother-in-law of the assessee is non-resident and her confirmation and copy of passport was also submitted. As assessee could not submit bank account of his mother-in-law the addition was made. It was further 6 ITA NO.4224/MUM/2013(A.Y. 2006-07)

submitted by Ld. AR that since question of law has been admitted by Hon'ble Bombay High Court, the issue of levy of concealment penalty would become debatable as per decision of Tribunal in the case of Nayan Builders and Developers Pvt. Ltd. vs. ITO order dated 18/3/2011 in ITA No.2379/Mum/2009, copy of this order is also filed and at page 18 to 20 of the paper book. It was further submitted by Ld. AR that the said order of the Tribunal has been confirmed by Hon'ble Bombay High Court in the case of CIT vs. Nayan Builders & Developers vide order dated 8/7/2014 passed in IT Appeal 415 of 2012, copy of this order is field at pages 16 to 17 of the paper book. Thus, it was pleaded by Ld. AR that it is a case where levy of penalty cannot be held to be justified.

4. On the other hand, it was submitted by Ld. DR that assessee could not prove genuineness and creditworthiness of the mother-in-law of the assessee, therefore, the addition has been confirmed by the Tribunal and in view of these facts the assessee has concealed particulars of his income and Ld. CIT(A) has rightly upheld the penalty. His order should be upheld.

5. We have heard both the parties and their contentions have carefully been considered. It is a case where the assessee had submitted the explanation during the assessment proceeding itself and the source of payment of school fee was mentioned to be payments made by mother-in-law of the assessee. Thus, the persons who has paid the money is closely related to the family of the assessee. The AO has confirmed this addition for the reason that assessee failed to prove the genuineness of the source of payment. However, it is not the case of AO that the contention of the assessee that the source of payment was mother-in-law is not correct. The aforementioned addition was made on account of information received by the Department and explanation was filed by the assessee. The 7 ITA NO.4224/MUM/2013(A.Y. 2006-07)

Tribunal also upheld the addition by relying upon assessment year 2005-06 and the addition has been confirmed for the reason that source and genuineness of the transaction was not accepted in A.Y 2005-06. It is also observed that assessee did not file corroborating evidence. Considering these facts and circumstances of the case, though the non-substantiation of explanation during the course of assessment proceedings may be a good ground for making the addition but while levying the penalty, there should be some material on record to suggest that the source which was explained by the assessee was not true or correct. It is not a case where any their person not related to the assessee has paid the school fee of the children, but a very close relation has paid the said amount. Therefore, we are of the opinion that it is not a very fit case for levy of concealment penalty. 5.1 Moreover, as per decision of Hon'ble Bombay High Court in the case of Nayan Builders & Developers (supra) when a question of law has been admitted on the impugned addition, then no case is made out for imposition of penalty. For the sake of completeness, the relevant portion of the findings recorded by the Tribunal in that case and the observation of their Lordships from High Court decisions are reproduced.

Observation of Tribunal in the case of M/s.Nayan Builders & Developers vs. ITO:

"3. It is, therefore, abundantly clear that the additions in respect of which penalty was confirmed have been accepted by the Hon'ble Bombay High Court leading to substantial question of law. When the High Court admits substantial question of law on an addition, it becomes apparent that the addition is certainly debatable. In such circumstances penalty cannot be levied u/s. 271(1)(c) as has been held in several cases including Rupam Mercantile Vs. DCIT (2004) 91 ITD 237 (Ahd) ™ and Smt. Raila Ratilal Shah vs. ACIT [1998] 60 TTJ (Ahd) 171. The admission of substantial question of Law by the Hon'ble High Court lend credence to the bona fides of the assessee in claiming deduction. Once it turns out that the claim of the assessee could have been considered for the deduction as per a person 8 ITA NO.4224/MUM/2013(A.Y. 2006-07)

properly instructed in law and is not completely debarred at all, the mere fact of confirmation of disallowance would not per se lead to the imposition of penalty. Since the additions, in respect of which penalty has been upheld in the present proceedings, have been held by the Hon'ble High Court to be involving a substantial question of law, in our considered opinion, the penalty is not exigible under this section. We, therefore, order for the deletion of penalty."

Observation of their Lordships in the case of CIT vs. Nayan Builders & Developers:

"IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.415 OF 2012 The Commissioner of Income Tax-7 ... Appellant v/s.

M/s. Nayan Builders and Developers .... Respondent Mr. Abhay Ahuja for Appellant.

Mr. Sanjiv M. Shah for Respondent

CORAM : S.C. DHARMADHIKARI AND B.P. COLABAWALA JJ.

DATE : 8TH JULY 2014

P.C .:

1. Having heard Mr. Ahuja, learned counsel appearing on behalf of the Appellant, we find that this Appeal cannot be entertained as it does not raise any sub substantial question of law. The imposition of penalty was found not to be justified and the Appeal was allowed. As a proof that the penalty was debatable and arguable issue, the Tribunal referred to the order on Assessee's Appeal in Quantum proceedings and the substantial questions of law which have been framed therein. We have also perused that order dated 27th September 2010 admitting Income Tax Appeal No.2368 of 2009. In our view, there was no case made out for imposition of penalty and the same was rightly set aside. The Appeal raises no substantial question of law, it is dismissed. No costs."

9 ITA NO.4224/MUM/2013(A.Y. 2006-07) 5.2 In view of above discussions we delete the impugned penalty and the appeal filed by the assessee is allowed.

6. In the result, the appeal filed by the assessee is allowed.

Order pronounced in the open court on 05/03/2015 आदे श क घोषणा खुले यायालय म" 05/03/2015 को क गई ।

Sd/- Sd/- (आर.सी. शमा /R.C.SHARMA ) (आय.पी. बंसल / I.P. BANSAL) लेखा सदःय /ACCOUNTANT MEMBER याियक सदःय / JUDICIAL MEMBER मुंबई Mumbai; %दनांक Dated 05/03/2015 आदे श क ूितिल)प अमे)षत/Copy षत of the Order forwarded to : 1. अपीलाथ, / The Appellant 2. ू-यथ, / The Respondent. 3. आयकर आयु.(अपील) / The CIT(A)- 4. आयकर आयु. / CIT 5. )वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स-या)पत ूित //True Copy//

उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai व.िन.स./Vm, Sr. PS