Shri Kailash Dawani, Indore V. The I..T.O., Indore

ITA 1/IND/2010

• Counselvise Citation: 122714 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-04-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 01-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MITRA
• Assessee Lawyers: H P VERMA
• Keywords: Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C.SHARMA, ACCOUNTANT MEMBER PAN NO. : ABBPD8275 I.T.A.NO. 01/IND/2010 A.Y. : 2002-03 SHRI KAILASH DAWANI, ITO, 545, KHATIWALA TANK, VS 5(1), INDORE. INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI H.P.VERMA, ADV. & SHRI ASHISH GOYAL, C.A. RESPONDENT BY : SHRI PRADEEP KUMAR MITRA, SR. DR O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 23.4.2009 FOR THE ASSESSMENT YEAR 2 002-03, IN THE MATTER OF ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961. 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO CONFIRMING THE ADDITION ON ACCOUNT OF GIFT OF RS. 2 ,65,000/- RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONS IDERATION. -: 2: - 2 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. DURING THE YEAR UNDER CONSIDERATION, THE A SSESSEE RECEIVED GIFT FROM FOUR PERSONS AMOUNTING IN TOTAL TO RS. 2,65,000/-. THE ASSESSEE WAS REQUIRED TO FURNISH DE TAILS IN RESPECT OF GIFTS SO RECEIVED DULY INDICATING RELATI ONSHIP WITH THE DONOR, OCCASION FOR WHICH GIFT WAS RECEIVED, OR IGINAL DOCUMENTS IN RESPECT OF GIFTS WERE ALSO REQUIRED TO PROVE THE IDENTITY OF THE DONOR AND COPIES OF THEIR BANK ACCO UNTS. AFTER CONSIDERING ASSESSEES REPLY, THE AO OBSERVED THAT ORIGINAL GIFT DEEDS WERE NOT PRODUCED NOR THE IDENTITY OF THE DON ORS WAS ESTABLISHED. THE BANK STATEMENT OF THE DONORS WAS N OT PRODUCED. IN THE LIGHT OF THESE OBSERVATIONS, ALL T HE FOUR GIFTS WERE TREATED AS BOGUS. ACCORDINGLY, THE ADDITION WA S MADE U/S 68 OF THE INCOME-TAX ACT, 1961. BY THE IMPUGNED ORD ER, THE LD. CIT(A) CONFIRMED THE ADDITION BY OBSERVING THAT THE DONORS WERE NOT FOUND TO BE VERY CLOSE RELATIVES AND THAT DONORS WERE NOT IN SUCH A HIGHER FINANCIAL PEDESTAL VIS--VIS A SSESSEE TO MAKE GIFT OF SUCH A SIZEABLE AMOUNT AND THAT TOO WI THOUT ANY REASON OR OCCASION WHATSOEVER. AFTER CONSIDERING TH E LD. AUTHORIZED REPRESENTATIVES CONTENTION, THE CIT(A) HELD THAT -: 3: - 3 THE ASSESSEE WAS MISERABLY FAILED TO ESTABLISH THE GENUINENESS OF SUCH GIFT TRANSACTION WHICH ARE ALTHOUGH CLAIMED TO BE RECEIVED FROM RELATIVES BUT THE CLOSE RELATIONSHIP WHICH IS SINE QUA NON OF NATURAL LOVE AND AFFECTION FOR MAKING GI FT OF SUBSTANTIAL AMOUNT COULD NOT BE ESTABLISHED AS THRE E OF SUCH PERSONS WERE NOT FOUND TO BE SO CLOSE, BUT WERE HAV ING A DISTANT COUSIN OF THE ASSESSEE. AGAINST THE ORDER O F LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. C ONTENTION OF THE LD. AUTHORIZED REPRESENTATIVE BEFORE US WAS THAT GIFT WAS RECEIVED FROM THE RELATIVES, GIFT DEED WAS AVAI LABLE AND THE SAME WAS GIVEN THROUGH CHEQUE/DD. IT WAS ALSO SUBMI TTED THAT AFFIDAVIT OF DONORS WAS ALSO FILED. ACCORDINGL Y, AS PER LD. AUTHORIZED REPRESENTATIVE, THE ASSESSEE HAS DISCHAR GED HIS ONUS OF PROVING THE GIFT AMOUNT. 5. THERE IS NO DISPUTE TO THE WELL ESTABLISHED PRINCIP LE THAT IN CASE OF GIFT NOT ONLY IDENTITY OF THE DONOR BUT ALSO GENUINENESS OF TRANSACTION OF GIFT AND CREDITWORTHI NESS OF THE PERSONS GIVING GIFT IS ALSO REQUIRED TO BE ESTABLIS HED. IN THE -: 4: - 4 INSTANT CASE, EVEN THOUGH GIFT DECLARATION AND AFFI DAVITS OF DONORS WERE FILED, HOWEVER, THE CREDITWORTHINESS OF THE DONORS WERE NOT ESTABLISHED IN SO FAR AS BANK STATEMENT OF DONOR AS REQUIRED BY THE ASSESSING OFFICER WERE NOT PRODUCED . CAPACITY OF THE DONOR TO GIVE THE REQUIRED AMOUNT OF GIFT CA N BE PROVED EITHER THROUGH BALANCE SHEET OR THROUGH BANK STATEM ENT INDICATING SUFFICIENT CREDIT BALANCE IN HIS ACCOUNT . HOWEVER, IN THE INSTANT CASE, BY NOT FURNISHING THESE DOCUMENTS THE ASSESSEE WAS UNABLE TO PROVE THE CREDITWORTHINESS O F THE DONORS. IT WAS ALSO FOUND BY THE LOWER AUTHORITIES THAT EVEN THE RELATIONSHIP STATED BY THE ASSESSEE WITH THE DO NOR WAS NOT CORRECT. THE FINDING RECORDED BY THE LOWER AUTHORIT IES WITH REGARD TO THE IDENTITY AND GENUINENESS OF THE GIFT NOT ESTABLISHED, COULD NOT BE DISLODGED BY THE LD. AUTH ORIZED REPRESENTATIVE BY PLACING ANY POSITIVE MATERIAL ON RECORD. WE ALSO FOUND THAT EVEN AFTER ASKING BY THE LOWER AUTH ORITIES, THE ASSESSEE DID NOT PRODUCE THE DONORS FOR EXAMINATION . THEREFORE, GENUINENESS OF THE DOCUMENTS PLACED IN S UPPORT OF THE GIFT WAS ALSO NOT ESTABLISHED. ACCORDINGLY, WE DO NOT FIND -: 5: - 5 ANY REASON TO INTERFERE IN THE FINDINGS RECORDED BY THE LOWER AUTHORITIES TO THE EFFECT THAT GIFTS WERE NOT GENUI NE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 7 TH APRIL, 2011. SD/- SD/- (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 7 TH APRIL, 2011. CPU* 674