ITO, Jaipur V. LATE SMT. SONI DEVI CHOUDHARY, Jaipur

ITA 102/JPR/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82785 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 17-07-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 31-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift; Opportunity of being heard; Onus to prove
• Section: 68

Judgement Text

ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 102/JP/2012 ASSESSMENT YEARS : 2008-09 PAN : ADIPC 3707 B THE ITO VS. LATE SMT. SONI DEVI CHOUDHARY WARD- 3 (1) THROUGH L/H SHRI RAM PRASAD CHOUDHAR Y JAIPUR D-167, HANUMAN NAGAR, VAISHALI NAGAR JAIPUR (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI RAJESH OJHA ASSESSEE BY : WRITTEN SUBMISSION DATE OF HEARING: 11-09-2014 DATE OF PRONOUNCEMENT: 17-10-2014 ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF THE LD. CIT(A)- I JAIPUR DATED 11-11-2011 FOR THE ASSES SMENT YEAR 2008-09 WHEREIN THE REVENUE HAS RAISED FOLLOWING GROUND :- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED IN TREA TING THAT THE GIFT OF RS. 22 LACS GIVEN BY THE BROTHERS OF THE AS SESSEE AS VALID GIFT WHEN NO PROPER PROCEDURE WAS FOLLOWED WHILE GI VING AND RECEIVING GIFT. ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 2 2.1 NONE PUT UP PERSONAL APPEARANCE ON BEHALF OF TH E ASSESSE, HOWEVER WRITTEN SUBMISSION HAVE BEEN FILED FOR CONSIDERATIO N, THE APPEAL IS, THEREFORE, DECIDED AFTER CONSIDERING ASSESSEES WRITTEN SUBMIS SION AND LD. DRS SUBMISSIONS. 3.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE H AS FILED THE RETURN DECLARING AN INCOME OF RS. 1,27,860/- FROM MILK BUS INESS, WHICH WAS TAKEN UP FOR SCRUTINY ASSESSMENT. DURING THE COURSE THERE OF, IT WAS FOUND THAT THE ASSESSEE HAD MADE VARIOUS CASH DEPOSITS TO RS. 35,5 9,800/- ON DIFFERENT DATES IN HER TWO BANK ACCOUNTS WHICH NEEDED EXPLANA TION. IT WAS FURTHER OBSERVED THAT FOLLOWING AMOUNTS WERE DEPOSITED IN T HE ACCOUNTS OF THE SON AND HUSBAND OF THE ASSESSEE IN THE SAME PERIOD. 1. SHRI SURENDRA KUMAR (SON) RS. 23,09,800/- 2. SHRI RAM PRASAD CHOUDHARY (HUSBAND) RS. 36,95,0 00/- DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE EXPIRED AND HER HUSBAND WAS BROUGHT ON RECORD AS LEGAL HEIR. THE FO LLOWING REPLY WAS SUBMITTED ON BEHALF OF THE ASSESSEE BEFORE AO TO EX PLAIN CASH DEPOSITS: IN RESPONSE TO ABOVE SHOW CAUSE NOTICE THE A/R OF THE ASSESSEE FILED REPLY ON 18-11-2010 STATING THAT THE ASSESSEE HAS DEPOSITED CASH AMOUNT PARTLY OUT OF HER EARLIER WIT HDRAWAL AND PARTLY OUT OF GIFT RECEIVED FROM HER BROTHERS AND F ILED REVISED COMPUTATION ALSO. IT HAS BEEN CLAIMED THAT GIFT OF RS. 11.00 LACS EACH WERE RECEIVED FROM SHRI RAMJI CHOUDHARY AND SH RI GOPAL CHOUDHARY RESPECTIVELY, BROTHER OF THE ASSESSEE AN D SHE WAS ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 3 HAVING OPENING CASH BALANCE OF RS. 2,53,153/- AS PE R CASH FLOW STATEMENT. THE AO FURTHER FOUND THAT THE SAID AMOUNTS OF RS. 2 2.00 LACS GIFTED BY THE BROTHERS OF THE ASSESSEE WERE WITHDRAWN BY THEM FRO M THEIR RESPECTIVE BANK ACCOUNTS LONG BACK IN FINANCIAL YEAR 2006-07. IN TH E AFFIDAVIT, NO EXACT DATE OF GIFT WAS MENTIONED AND THE DONORS BROTHERS HAD O NLY AGRICULTURE AS REGULAR SOURCE OF FAMILY INCOME. AO FOUND IT UNBELI EVABLE THAT TWO FARMERS WILL SELL THEIR JOINT FAMILY AGRICULTURAL LAND WHIC H WAS MEANS OF SUBSISTENCE FOR THEIR FAMILIES IN ORDER TO GIVE CASH GIFTS TO T HEIR SISTER. LOOKING AT THE LONG TIME GAP OF CASH HOLDING AND INCONSISTENCIES A N ADVERSE INFERENCE WAS DRAWN THAT THE ALLEGED CASH AMOUNTS WERE ACTUALLY W ITHDRAWN BY THE BROTHERS FOR THEIR OWN FAMILY REQUIREMENTS. BY AN A FTER THOUGHT, IT WAS EXPLAINED THAT THE WITHDRAWALS WERE GIVEN AWAY AS C ASH GIFTS TO SISTER. IN CONSIDERATION OF THESE FACTS AND CIRCUMSTANCES OF T HE CASE, THE AMOUNT OF RS. 32,050,000/-WAS ADDED TO ASSESSES INCOME AS UNEXPLA INED CREDITS/DEPOSITS. 3.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL WHERE THE LD. CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO. THE STATE MENTS OF THE BROTHERS WERE RECORDED WHERE THEY ACCEPTED THAT THEY HAVE G IVEN THE GIFT OF RS. 11.00 LACS EACH DURING THE YEAR TO THE AILING SISTE R. THE AO HOWEVER, IN THE REMAND REPORT PROPOSED THAT THE STATEMENT OF THE BR OTHERS CANNOT BE RELIED ON ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 4 INASMUCH AS THE DONORS HAVE NOT EXPLAINED THAT ON W HICH DATE THE GIFT WAS GIVEN TO THEIR SISTER AND THE CASH WAS KEPT FOR MOR E THAN A YEAR. BOTH THE BROTHER WERE SMALL AGRICULTURISTS WITHOUT ANY SOUR CE OF INCOME AND HAD ALSO STATED THAT THE AMOUNTS WERE WITHDRAWN FROM THE BAN K FOR IMMEDIATE REQUIREMENTS AND FOR PURCHASE OF AGRICULTURAL LAND IN LIEU OF AGRICULTURE LAND SOLD BY THEM. THE AO STATED THAT THE ALLEGED GIFTS DID NOT APPEAR TO BE VALID INASMUCH AS THERE WERE NEITHER ANY GIFT DEEDS NOR T HE DATE OF GIFT WAS MENTIONED. 3.3 THE LD. CIT(A) HOWEVER, DELETED THE ADDITION BY FOLLOWING OBSERVATIONS. IT IS SEEN THAT THE AOS RECOMMENDATION FOR NOT R ELYING ON AFFIDAVITS OF BROTHERS OF THE ASSESSEE ARE BASED ON DOUBTS AND PRESUMPTION THAT ARE CONTRARY TO THE DOCUMENTAR Y EVIDENCE ON RECORD VIZ. SALE DEED OF LAND SUBMITTED BY THE B ROTHERS, THEIR BANK PASS BOOKS SHOWING SALE CONSIDERATION RECEIVED BY CHEQUE, WITHDRAWAL OF RS. 11 LACS ON 7-11-2006 EACH , THEIR AFFIDAVITS AND SUBSEQUENT STATEMENTS IN SUPPORT OF THE DEPOSITION MADE BY THEM IN THE AFFIDAVITS. IN VIEW OF THIS EVIDENCE ON RECORD, THE FINANCIAL C APACITY OF THE BROTHERS TO MAKE SUCH A GIFT TO THEIR SISTER IS PROVED AND THIS EVIDENCE CANNOT BE OVERRULED MERELY ON SURMISE S AND CONJECTURES. THEREFORE, I HOLD THE GIFT OF RS. 22 L ACS BY THE BROTHERS TO THE ASSESSEE AS VALID. 3.4 AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 5 3.5 THE LD. DR RELIED ON THE ORDER OF THE AO AND TH E DECISION OF HON'BLE APEX COURT IN THE CASE OF SUMATI DAYAL VS CIT ,214 ITR 801 (SC) FOR THE PROPOSITION THAT SUCH TRANSACTIONS ARE NOT TO BE VI EWED ON FACE VALUE BUT TO BE CONSIDERED ON THE PARAMETERS OF THE HUMAN CONDUC T AND PREPONDERANCE OF PROBABILITY WHICH HAVE BEEN DETAILED IN THE JUDGMEN T. THE AGRICULTURE LAND PROCEEDS WHEREOF ARE CLAIMED TO BE THE SOURCE OF AL LEGED GIFTS BY THE BROTHERS WAS ACTUALLY THEIR HUF LAND, ASSESSEE BEIN G MARRIED AWAY AND OLD LADY HAD NO RIGHT IN BROTHERS COPARCENARY PROPERTY. NO EARLIER GIFT OF EVEN RS. 1,000/- WAS MADE TO SUPPORT THE AILING SISTER BY THE BROTHERS. THE DATE OF GIFTS IS NOT COMMUNICATED EITHER BY THE BROTHERS OR BY THE ASSESSEE. THE CASH WITHDRAWAL FROM THE BANK ACCOUNT WAS ON 7-11-2 006 WHEREAS THE AMOUNTS HAVE BEEN DEPOSITED IN THE ASSESSEE'S ACCOU NT IN FINANCIAL YEAR 2007-08 WHICH ITSELF MAKES THE ALLEGED THEORY OF GI FTS AND STATEMENTS IN SUPPORT THEREOF HIGHLY QUESTIONABLE AND IMPROBABLE ON HUMAN CONDUCT. IF THE ASSESSEE WAS SICK THEN IN NORMAL HUMAN CONDUCT NEITHER THE AMOUNT CAN BE GIVEN TO HER IN CASH NOR WILL ASSESSEE KEEP IT A T HOME FOR SAFETY PURPOSES AND LOOKING AT HER SICK CONDITION. IT HAS NOT BEEN DISPUTED THAT ALL THE CONCERNED PERSONS I.E. BROTHERS, AILING SISTERS AND HER SON AND HUSBAND WERE HAVING BANK ACCOUNTS. THUS LOOKING AT THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ABSENCE OF GIFT DEEDS, N ON-MENTIONING OF DATE OF ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 6 GIFTS AND QUESTIONABLE CONDUCT IN RESPECT OF KEEPIN G THE HUGE CASH AMOUNT AT THE END OF ALLEGED DONORS AND DONEE AND VIEWING THE M ON HUMAN CONDUCT AND PREPONDERANCE OF PROBABILITIES, THE LD. CIT(A) OUGHT TO HAVE PROPERLY APPRECIATED THESE QUESTIONABLE FACTUAL ASPECTS OF T HE CASE IN AN OBJECTIVE MANNER. IT IS MORE SO THAT THE AO IN THE ASSESSMENT ORDER AS WELL AS IN THE REMAND REPORT RAISED SERIOUS QUESTIONS ABOUT THE VA GUE AFFIDAVITS AND THE STATEMENTS OF THE BROTHERS. THE LD. CIT(A) HAS OVE RRULED THE OBSERVATION AND OBJECTION OF THE AO ONLY BY MERE OBSERVATIONS T HAT THE AOS RECOMMENDATIONS ARE BASED ON DOUBTS AND PRESUMPTION S THAT ARE CONTRARY TO THE DOCUMENTARY EVIDENCE. WHEREAS THE GLARING FACTS OF THE MATTER AS EMANATING FROM THE RECORD ARE THAT ALLEGED CASH GIF TS THEORY COULD NOT BE SUPPORTED BY THE ASSESSES SIDE. ONLY SELF-CONTRADIC TORY, VAGUE DOCUMENTS AND STATEMENTS WERE FURNISHED BY THEM TO SUBSTANTIA TE THEIR EXPLANATION. THE BURDEN LAYS ON THE ASSESSEE TO GIVE PROPER FACT S AND EVIDENCE, IN CASE OF FAILURE ON ASSESSEE'S SIDE IN THIS BEHALF LD. CIT(A ) ERRED BY HOLDING THAT AOS OBSERVATIONS ARE BASED ON PRESUMPTION AND CONT RARY TO THE FACTS. THERE IS NO MENTION OF ANY REASONS AS TO WHAT AMOUNTED TO PRESUMPTION AND WHICH PROPOSITION WAS CONTRARY TO THE RECORD AVAILABLE.. THE LD. DR SUBMITTED THAT THE ORDER OF THE LD. CIT(A) IS NON-SPEAKING AND IT DOES NOT GIVE VALID REASONS ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 7 FOR RELIEF TO THE ASSESSEE. THUS IT DESERVES TO BE REVERSED. THE LD. DR RELIED ON THE ORDER OF THE AO. 3.6 THE ASSESSEE THROUGH THE WRITTEN SUBMISSION HAS CONTENDED THAT THE GIFTS MOVABLE PROPERTY CAN BE GIVEN WITHOUT ANY GIF T DEED AND THE SAME IS VALID AS LONG AS THE SAME IS CONFIRMED BY THE DONOR S AND DONEE. RELIANCE IS PLACED ON FOLLOWING JUDGMENTS:- 1. ACIT VS. SARV PRAKASH KAPOOR (2009) 124 TTJ 433 (AGRA) (TM ). 2. CIT VS. SMT. SURAJ BAI, 84 ITR 774 (RAJ.) 3. CIT VS. PADAM SINGH CHOUHAN (2008) 3 DTR 190 (RAJ.) 4. MEER USDULLAH VS. IMAMAM G WR 26 PC THE WRITTEN SUBMISSION IS ENCLOSED WITH THE STATEME NTS OF BOTH THE BROTHERS I.E. SHRI RAM JI LAL CHOUDHARY AND SHRI GOPAL LAL C HOUDHARY WHICH WAS RECORDED BY THE AO AS TO THE GIFT OF THE AMOUNTS TO THE ASSESSEE. 3.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENTS OF THE LD. DR THAT A GIFT TO BE HELD AS VALID, IT MUST STIPULATE THE DATE OF GIFT ON WHICH IT TOOK PLACE AS THE GIFT INVOLVES THE CHANGE OF OWNERSHIP FOR WHICH THERE HAS TO BE A DEFINITE DATE. IN THE ABSENCE OF DATE OF GIFT, IT CANNOT BE HELD AS TO WHAT DATE THE DONEE BECAME THE OWNER OF THE PROPERTY. WE HAVE NO DISPUTE TO THE PROPOSITION THAT GIFT OF MOVABLE PROPERTY MAY NOT B E REGISTERED BUT IN THAT ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 8 CASE THE BURDEN OF PROOF SHIFTS ON THE PARTY CLAIMI NG THE GIFTS TO ESTABLISH THE SAME BY NECESSARY EVIDENCE. THE MERE THEORY OF GIFT ON VAGUE TERM DID NOT DISCHARGE THE BURDEN CAST BY SECTION 68 OF THE ACT. THE OSTENSIBLE REASON GIVEN FOR GIFT IS TO THE EFFECT THAT SHE WAS NOT KE EPING WELL. ON PREPONDERANCE OF PROBABILITY AND HUMAN CONDUCT, IF SOMEBODY IS SICK THEN IT MAY BE PRECEDED BY FINANCIAL HELP TO MEET OUT HER M EDICAL TREATMENT. THE BROTHER OF THE ASSESSEE, HER HUSBAND AND SON, ALL H AD BANK ACCOUNTS AND THE LADY WAS CONDUCTING BUSINESS THROUGH BANK ACCOUNTS. THUS IT DOES NOT EMERGE FROM THE RECORD THAT AS TO WHO KEPT THE CASH AT HOME I.E. THE BROTHERS OR THE AILING ASSESSEE BECAUSE IN THESE CIRCUMSTANC ES THE PERSON WILL GO IMMEDIATELY TO THE BANK FOR DEPOSITING THE CASH. MO RE SO, WHEN EVERYBODY IN FAMILY HAS BANK ACCOUNT. UNDER THESE FACTS AND C IRCUMSTANCES, WE ARE OF THE VIEW THAT THE SUMMARY FINDINGS OF THE LD. CIT(A ) ARE NOT TENABLE. SIMILARLY, THE FINDINGS THAT THE OBSERVATION OF THE AO ARE ON PRESUMPTIONS ONLY AND ARE CONTRARY TO THE RECORD CANNOT BE UPHEL D INASMUCH AS THE AO RAISED VALID ISSUES IN ORDER TO CLARIFY THE MATTER WHICH REMAINS UNANSWERED BY THE FINDINGS OF THE LD. CIT(A) AS WELL AS BY TH E WRITTEN SUBMISSION OF THE ASSESSE. THUS IN THESE CIRCUMSTANCES OF THE FACTS A ND CIRCUMSTANCES OF THE CASE, WE HOLD THAT LD. CIT(A)S FINDING CANNOT BE U PHELD AS THEY ARE NOT BASED ON PROPER APPRECIATION OF THE FACTS AND ARE N ON-SPEAKING ON THE ITA NO. 102//JP/2012 ITO VS. LATE SMT. SONI DEVI CHOUDHARY 9 MATERIAL ASPECTS AND CLINCHING ISSUES. THUS IN THE INTEREST OF JUSTICE, WE RESTORE THE APPEAL TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUE DE-NOVO BY GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. THEREFORE, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICA L PURPOSES. 4.0 IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 17- 10-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 17 TH OCT 2014 *MISHRA COPY FORWARDED TO:- 1. THE ITO, WARD- 3(1), JAIPUR 2. LATE SMT. SONI DEVI CHOUDHARY, JAIPUR 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 102/JP/2012) AR ITAT, JAIPUR