Kumudini Agarwal, Mumbai vs Assessee

Smt. Kumudini Agarwal, Asst. CIT, CC-33 7/103, Mittal Road, Old CGO Building, M.K.Road, Vs. Mamu Bhanja, Mumbai-400020 Aligarh- 202001

(Assessee) (Respondent) (PAN: ABCPA 9871G)

Assessee by : Shri Manish Sanghvi Revenue by : Ms. S. Padmaja

Date of Hearing : 24/03/2015 Date of Pronouncement : 22/06/2015

ORDER

Per Sanjay Arora (AM):

This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-41, Mumbai ('CIT(A)' for short) dated 24.01.2011, confirming the levy of penalty u/s. 271(1)(c) of the Income Tax Act, 1961 ('the Act' hereinafter) for Assessment Year (AY) 2007-08 vide order dated 25.06.2009.

2. The facts of the case in brief are that a search u/s. 132 of the Act was conducted at the business and residential premises of various persons/concerns belonging to the Balaji Group of cases, including the assessee, on 10.11.2006. Jewellery worth Rs. 53 lacs was found from Locker (# 429, with PNB, Meera Road, Aligarh, U.P.) held in the joint names of the assessee and her husband, Shri Sureshchand Agarwal. Statement under oath of the assessee was recorded on 19.12.2006, whereat she admitted to the ITA No.2136/M/11 Smt. Kumudini Agarwal

contents of the said Locker as belonging to herself and her family members, and none else (in answer to Q #3). Consequently, return of income for the relevant year, i.e. A.Y. 2007-08, was filed on 12.08.2008, declaring a total income of Rs. 35,86,354/-, including Rs. 29,13,895/- on account of un-explained jewellery found and seized during the search from the assessee's possession, paying taxes thereon. The said income, offered as 'Income from Other Sources', was assessed as such vide order u/s. 143(3) dated 16.12.2008. In penalty proceedings u/s. 271(1)(c), initiated along with, the assessee, on being show-caused, invoked the immunity provided by Explanation 5 to section 271(1)(c) of the Act. The assessee had offered the excess jewellery found during search and offered it as income u/s. 132(4) for Assessment Year (AY) 2007-08. Accordingly, no penalty, it was pleaded, ought to be levied. The same did not find favour with the Assessing Officer (AO) as no such disclosure had been made u/s. 132(4), so as to attract the protection of Explanation 5 to section 271(1)(c). The same stood confirmed in appeal on the finding of the terms of the said Explanation being not satisfied, relying on the decision in the case of Ajit B. Zota v. Asst. CIT [2010] 40 SOT 543 (Mum). Aggrieved, the assessee is in second appeal.

3. Before us, like submissions were made, with each side relying on case law, as under:

Assessee:

(a) CIT v. Mahendra C. Shah [2008] 299 ITR 305 (Guj)

(b) CIT v. E.V. Valashanmugham [2006] 286 ITR 626 (Mad)

(c) CIT v. Radha Kishan Goel [2005] 278 ITR 454 (All).

Revenue:

Shreej Traders v. Dy. CIT [2012] 136 ITD 249 (Mum), which, in turn, relies on several case law.

4. We have heard the parties, and perused the material on record. 4.1 The primary facts of the case are undisputed, nay, admitted. The only issue, therefore, arising is whether the saving of Explanation 5 to section 271(1)(c) is attracted in the facts and circumstances of the case, which would prima facie apply

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inasmuch as the impugned jewellery was found during the course of search. The said provision reads as under:-

'Failure to furnish returns, comply with notices, concealment of income, etc.

271. (1) If the Assessing Officer or the Commissioner (Appeals) or the Commissioner in the course of any proceedings under this Act, is satisfied that any person -

(c) has concealed the particulars of his income or furnished inaccurate particulars of such income, or

Explanation 5.- Where in the course of a search initiated under section 132 before the 1st day of June, 2007, the assessee is found to be the owner of any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets has been acquired by him by utilising (wholly or in part) his income,-

(a) for any previous year which has ended before the date of the search but the return of income for such year has not been furnished before the said date or, where such return has been furnished before the said date, such income has not been declared therein; or

(b) for any previous year which is to end on or after the date of the Search, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income, unless, -

(1) such income is, or the transactions resulting in such income are recorded,-

(i) in a case falling under clause (a), before the date of the search; and

(ii) in a case falling under clause (b), on or before such date;

in the books of account, if any, maintained by him for any source of income or such income is otherwise disclosed to the Chief Commissioner or Commissioner before the said date; or

(2) he, in the course of the search, makes a statement under sub-section (4) of section 132 that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control, has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of time specified in sub-section (1) of section 139, and also specifies in the statement the manner in which such income has been derived and pays the tax, together with interest, if any, in respect of such income.'

4.2 As apparent, it (Explanation 5 to s. 271(1)(c)) provides for deeming concealment of particulars of income or furnishing inaccurate particulars of income under the condition of the assessee claiming the assets, of which it is found to be the owner of during the course of search, to represent a utilization of its income for any previous year:

3 ITA No.2136/M/11 Smt. Kumudini Agarwal (a) which has ended before the date of search, return for which has not been filed (up to the date of search), or where the return of income stands filed, the relevant income has not been declared therein;

(b) which is to end on or after the date of search, notwithstanding that the assessee returns the said income on or subsequent to the date of search. The deeming as to concealment or, furnishing inaccurate, particulars of income has two exceptions to it, per the provision itself, listed as clauses (1) and (2) thereof. Clause (1) stipulates that the assessee shows of having recorded the relevant income in the books of account maintained for any source of income, or otherwise disclosed prior to the date of detection. Exception (2), which is independent of clause (1), provides for immunity where the assessee discloses both the income and the manner of its earning in the statement u/s. 132(4) made during search.

Clearly, it is clause (2) which the assessee seeks to invoke, stating that the non- disclosure of income u/s. 132(4) shall not operate to exclude her case from its ambit in-as-much as no question was put across to her with regard thereto while recording her statement (copy on record). The question of further disclosing the manner of earning that income does not arise, even as the income stands since returned, and taxes paid, so that the benefit of exception vide clause (2) of Explanation 5 to section 271(1)(c) cannot be denied.

In our clear view, Explanation 5 to section 271(1)(c) is not attracted in the first place. The question of its saving, or that provided per clause (2) thereof, being applicable, or not so, thus, does not arise. This is as, firstly, the assessee nowhere claims the impugned jewellery, or any part thereof, to have been acquired by her by utilizing her income for any previous year, much less the relevant previous year. This is, as apparent, a prerequisite for the application of the provision, which gets further support by the fact that the provision envisages the assessee to also disclose along with the manner of earning the income (refer clause (2) to Explanation 5). It is only where the assessee so claims that the provision of Explanation 5 (to section 271(1)(c)) would stand to be attracted. Rather and, on the contrary, she explains the acquisition of jewellery as gifts received on the occasion of her wedding, and that of her children (in answer to Question # 4), with answer to Q. #3 clarifying the jewellery contained in

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the Locker as belonging to her and her family members, specifying them by name. Further, no other family member, including her son, Deepak Kumar Agarwal (whose statement is at PB pages 22-24), who were also examined, threw any light on the source of the acquisition of the said jewellery, or even otherwise toward its ownership, even as also emphasized by the AO in the remand report dated 12/1/2011 (PB 19). There is, consequentially, no surrender of any income during search, either u/s. 132(4) or even otherwise, by the assessee or any other family member in relation to the impugned jewellery, on which income penalty stands levied. Further, this is despite the assessee being specifically questioned on the source of acquisition of the impugned jewellery. In fact, the same represents only a part of the total jewellery found, so that the assessee was, as a matter of fact, able to explain the jewellery found in her possession during search in part, being unable to substantiate the same for the entire jewellery. This, then, constitutes our second principal objection to the invocation of Explanation 5 to s. 271(1)(c).

True, the assessee returns the value of the unexplained jewellery per her return of income for the relevant year. However, that by itself would not operate to attract the said Explanation; its ingredients being not satisfied. The jewellery was found from her locker/residence. To the extent explained as to the source of its acquisition, the same stands excluded. The balance, of which she is found to be the owner, becomes part of her undisclosed income for the relevant previous year, i.e., in which it is so found by the Revenue, in view of section 69/69A of the Act, which provisions are rules of evidence based on the fundamental principles of jurisprudence as enshrined in the Evidence Act (refer: Chuharmal v. CIT [1988] 172 ITR 250 (SC)). That explains her returning the value of such excess, i.e., unexplained, jewellery. That she was so found by the Revenue during the course of search, is incidental and by itself of no consequence. It would not by itself be sufficient to attract Explanation 5. In fact, given the provisions of sections 69/69A, the return of income is by itself of little consequence; she having been found to be the owner of valuable articles, for which she has no explanation for their source, i.e., which she could substantiate, so that the same was even otherwise liable to be included as part of her income for the year.

5 ITA No.2136/M/11 Smt. Kumudini Agarwal We, accordingly, find no basis in law to the assessee's claim invoking the immunity provided by Explanation 5 to section 271(1)(c); the same being inapplicable in the facts and circumstances of the case. The decisions relied upon by the assessee would, consequentially, be of no avail. The same are in the context of whether the appellant's case is saved by it, with the courts advocating a liberal approach in the matter, while in the instant case we have found the basic ingredients or pre-requisites for the application of the provision as not met. This answers the question arising for being answered, as listed at the beginning of this discussion, against the assessee and in favour of the Revenue. That the reasons informing our decision may be different from that which prevailed with the Revenue, is, again, of little moment.

4.3 The income being admitted, the question that next arises is if the assessee has been able to substantiate her explanation, if any, for the unexplained jewellery found with her. We state so as penalty becomes leviable in the absence of a satisfactory explanation (Chuharmal (supra); CIT v. Rattan S. Grewal [2008] 304 ITR 75 (P&H); CIT v. Loknath Chowdhary v. CIT [1985] 155 ITR 291 (Cal)). The assessee has not been able to; rather, has not even attempted to substantiate her explanation of the same having been gifted on the occasion of weddings in the family, which would in the very least require the names of the donors, besides confirmations from the donors. Rather, how could gift to another form part of her income, i.e., going by her explanation. The same is no more than a bald plea, contradicted by the assessee's own stand of returning the same as her income, albeit consequent to search. The same, however, cannot be regarded as voluntary by any stretch of imagination, being in consequence of a search and findings thereat, i.e., detection and, in fact, seizure of the relevant assets. Case law on what constitutes a voluntary action on the part of the assessee in returning income, is legion. We may, for reference, advert to CIT v. Mohd. Mohtram Farooqui [2003] 259 ITR 132 (Raj); Addl. CIT v. Radhey Shyam [1980] 123 ITR 125 (All)). The said returning would, thus, be again of no assistance to the assessee. Both Explanation (1A) and (1B) to section 271(1)(c) shall, resultantly, apply in the facts of the case. It may be argued that the Revenue has not invoked the said Explanation. The same is not required to be separately invoked when the assessee is show-caused on

6 ITA No.2136/M/11 Smt. Kumudini Agarwal section 271(1)(c) (CIT v. Prabhu Dayal Lallu Ram [2005] 274 ITR 233 (P&H); CIT v. K.P. Madhusudanan [2000] 246 ITR 218 (Ker)). The law, through Explanation 1, shifts the onus of the explanation for not returning/disclosing the impugned income on the assessee, so that the penalty follows the non-discharge of that onus. In the present case, the assessee seeks shelter of Explanation 5 to the provision, which we have, for the reasons afore-stated, found as not applicable. No further burden lies on the Revenue; it restricting itself to the assessee's case as advanced before it, i.e., entitlement to the benefit of Explanation 5 to the provision.

There is, further, no plea of the disclosure per the return as made to purchase peace of mind and/or avoid litigation. The plea would even otherwise be inconsistent with the facts of the case; wholly unsubstantiated and, accordingly, not maintainable either on facts or in law (refer: Mak Data (P.) Ltd. v. CIT [2013] 358 ITR 593 (SC)).

5. In view of the foregoing, we confirm the levy of penalty imposed at the minimum sum thereof, i.e., at 100% of the tax sought to be evaded. In this regard, the assessee states of the correct amount of income disclosed and assessed being at Rs. 29,13,895/-, and not Rs. 29,31,895/-, i.e., on which amount the penalty stands levied. We find the assessee's claim as correct, so that a consequential relief is directed. We decide accordingly.

6. In the result, the assessee's appeal is partly allowed.

This order was pronounced in the open court 22 /06/2015

Sd/- Sd/- (D. Manmohan) (Sanjay Arora) Vice President Accountant Member

MUMBAI, DATED 22/06/2015 SK. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)-41, Mumbai 4. CIT concerned 5. DR, ITAT, Mumbai 6. Guard file.

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BY ORDER,

//True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai

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