Shri K.Sivakumar, CHENNAI V. ACIT, CHENNAI

ITA 1115/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0842 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 13-02-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 21-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J RADHAKRISHNAN
• Keywords: Gift; Corroborative evidences
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ------- ITA NO. 1115/MDS/2012 ASSESSMENT YEAR : 2008-09 SHRI K. SIVAKUMAR, NEW NO. 58 (OLD NO. 41), RUKMANI ROAD, KALAKSHETRA COLONY, BESANT NAGAR, CHENNAI-600 090. V. THE ASST. COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-V, CHENNAI. (PAN : AAVPS7329F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J. RADHAKRISHNAN, ADVOCATE RESPONDENT BY : SHRI ASHOK KUMAR, CIT-DR DATE OF HEARING : 13.0 2.2013 DATE OF PRONOUNCEMENT : 13.02.201 3 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE CIT(APPEALS)-VIII, CHENNAI DATED 22.02.2012 FOR THE ASSESSMENT YEAR 2008-09. ITA NO.1115/MDS /2012 : 2 : 2. FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDIV IDUAL ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF SHA RES. THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INC OME OF ` 90,83,130/-. THE RETURN WAS PROCESSED INITIALLY UN DER SECTION 143(1) OF THE INCOME TAX ACT, 1961 ('THE ACT' FOR S HORT). SUBSEQUENTLY, AFTER FOLLOWING DUE PROCESS ASSESSMEN T WAS COMPLETED UNDER SEC. 143(3) OF THE ACT WHEREIN THE ASSESSING OFFICER REJECTED THE GIFT RECEIVED BY THE ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. DURI NG THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD RECEIVED ` 7,50,000/- AS A GIFT FROM HIS BROTHER IN THE ASSESSMENT YEAR 2008-09. O N VERIFICATION IT WAS ASCERTAINED THAT THE ASSESSEES BROTHER, SHRI K. SHRIDHAR HAD AN INCOME OF ` 1,61,913/- FROM BUSINESS AND PROFESSION WITH A TOTAL INCOME OF ` 10,89,134/-. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PROVE THE CAPACITY OF THE ASSESSEES BROTHER TO GIVE SUCH A HUGE AMOUNT OF ` 7,50,000/- AS GIFT AND THE GENUINENESS OF THE TRANSACTION AND ALSO ASKED TO PRODUCE STATEMENT OF AFFAIRS AND CASH FLOW STATE MENT OF SHRI K. SHRIDHAR. IT WAS FOUND THAT BY THE ASSESS ING OFFICER THAT SHRI K. SHRIDHAR, THE BROTHER OF THE ASSESSEE, HAS A ITA NO.1115/MDS /2012 : 3 : LIABILITY OF ` 25,09,921/- FOR THE FINANCIAL YEAR 2007-08. BEFOR E THE ASSESSING OFFICER THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE LIKE, FINANCIAL STATEMENT, CREDITWORTHINES S AND CAPACITY OF THE ASSESSEES BROTHER TO GIVE HUGE GIF T OF ` 7,50,000/-. ON THE BASIS OF THE ABOVE, THE ASSESSI NG OFFICER CAME TO THE CONCLUSION THAT THE GIFT IS NOT GENUINE AND BY INVOKING SEC. 68 OF THE ACT HE ADDED THE SUM OF ` 7,50,000/- AS THE INCOME OF THE ASSESSEE. 3. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(APPEALS). BEFORE THE CIT(APPEALS) IT WAS SUBMIT TED THAT HE HAD RECEIVED THE GIFT FROM HIS BROTHER. THEREFO RE THE GENUINENESS CANNOT BE DOUBTED. HOWEVER, EVEN BEFORE THE CIT(APPEALS) NO MATERIAL WAS PRODUCED SUCH AS CASH FLOW STATEMENT, CAPACITY, CREDITWORTHINESS OF THE DONOR ETC. THE CIT(APPEALS) CONFIRMED THE ORDER PASSED BY THE ASSE SSING OFFICER BY OBSERVING THAT THE ASSESSEE HAS NOT PROD UCED ANY DETAILS EXCEPT STATING THAT THE GIFT WAS RECEIVED F ROM HIS BROTHER AND NO OCCASION WAS EXPLAINED. APART FROM THAT HIS BROTHER IS HAVING A LIABILITY OF ` 25,09,921/-. IN THE ABSENCE OF ANY SUPPORTING EVIDENCE ABOUT THE GIFT RECEIVED BY THE ASSESSEE, HE CONFIRMED THE ORDER OF THE ASSESSING O FFICER. ITA NO.1115/MDS /2012 : 4 : 4. THE ASSESSEE HAS CARRIED THE MATTER BEFORE THE T RIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS RECEIVED THE GIFT FROM HIS BROTHER. T HEREFORE THE GENUINENESS CANNOT BE DOUBTED. SO FAR AS THE CAPAC ITY AND CREDITWORTHINESS ARE CONCERNED, THE ASSESSING OFFIC ER HAS NOT ASKED THE SAME AND THEREFORE HE DID NOT PRODUCE TH E ABOVE DETAILS. 5. ON THE OTHER HAND, THE LEARNED DR SUPPORTED THE ORDERS PASSED BY THE AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE CASE OF THE ASSESSEE IS THAT HE HAS RECEIVED ` 7,50,000/- FROM HIS BROTHER AS GIFT. WHEN THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE CASH-FLOW STATEMENT, AND TO PROVE THE CREDITWORTHINESS, CAPACITY AND GENUINENESS OF THE T RANSACTION, NO MATERIAL WAS PLACED BEFORE HIM EXCEPT STATING TH AT THE GIFT RECEIVED WAS FROM HIS OWN BROTHER. HE HAS ALSO NOT PRODUCED ANYTHING WITH REGARD TO THE OCCASION ON WHICH HE HA D RECEIVED THE GIFT. THEREFORE, WE ARE OF THE OPINION THAT TH E ASSESSEE FAILED TO DISCHARGE THE ONUS CAST UPON HIM TO PROVE THAT THE GIFT IS A GENUINE GIFT. WE THEREFORE HOLD THAT THE ASSESSEE HAS ITA NO.1115/MDS /2012 : 5 : FAILED TO DISCHARGE THE ONUS AND THE ASSESSING OFFI CER HAS RIGHTLY INVOKED THE PROVISIONS OF SECTION 68 OF THE ACT AND THE CIT(APPEALS) HAS RIGHTLY CONFIRMED THE ORDER OF THE ASSESSING OFFICER. ACCORDINGLY, THIS GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. 7. ANOTHER GROUND RAISED BY THE ASSESSEE IS WITH RE GARD TO THE MAINTENANCE OF THE CAR. THE ASSESSEE HAS DEBIT ED AN AMOUNT OF ` 1,55,234/-. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE DETAILS SUCH AS JOURNEY LOG BOO K INCLUDING DETAILS OF THE TRAVEL, THE VEHICLE SERVICE MAINTENA NCE BOOK, FUEL BILL, REPAIR BILLS AND VOUCHERS ETC. TO PROVE THE G ENUINENESS OF THE EXPENDITURE. AS THE ASSESSEE WAS NOT ABLE TO SU BSTANTIATE HIS CLAIM BY PRODUCING SUPPORTING DOCUMENTS AND EVI DENCE, THE ASSESSING OFFICER DISALLOWED 50% OF THE EXPENDI TURE CLAIMED BY THE ASSESSEE. THE SAME WAS CONFIRMED BY THE CIT(APPEALS) IN APPEAL. EVEN BEFORE US NO MATERIAL HAS BEEN PLACED. IN VIEW OF THE ABOVE, WE CONFIRM THE ORDER PASSED BY THE CIT(APPEALS). ACCORDINGLY, THIS GROUND OF APPE AL IS DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ITA NO.1115/MDS /2012 : 6 : ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON WEDNESDAY, THE 13 TH OF FEBRUARY, 2013, AT CHENNAI. SD/- SD/- (ABRAHAM P. GEORGE) (V.DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 13 TH FEBRUARY, 2013. H. COPY TO: ASSESSEE/AO/CIT(A)/CIT/D.R./GUARD FILE