ACIT, New Delhi V. Smt. Ginni Gosian, New Delhi

ITA 1229/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52725 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-09-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 09-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H L DIHANA
• Assessee Lawyers: AMIT GOENKA S
• Keywords: Gift; Assessment record

Judgement Text

ITA NO. 1229/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 1229/DEL/2011 A.Y. : 2005-06 ACI T , CENTRAL CIRCLE - 21 , ROOM NO. 344, E-2, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI - 55 VS. SMT. GINNI GOSIAN, E-176, ANTRIKSH APARTMENT, SECTOR-14, ROHINI, NEW DELHI 110 085 (PAN/GIR NO. : AAOPG2830Q) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. RAMESH GOENKA, SHRI BASANT PODDAR AND SH. AMIT GOENKA, ADVOCATES DEPARTMENT BY : SH. H.L. DIHANA, C.I.T.( D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 16.12. 2010 PERTAINING TO ASSESSMENT YEAR 2005-06. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INC OME TAX (APPEALS) ERRED IN DELETING THE ADDITION OF ` 21,00 ,000/- MADE BY ASSESSING OFFICER ON BOGUS GIFTS AS ASSESSEE FAILE D TO PROVE THE GENUINENESS. 3. IN THIS CASE DURING THE COURSE OF ASSESSMENT PRO CEEDINGS AND PERUSAL OF THE ASSESSMENT RECORDS, IT CAME TO THE N OTICE OF THE ASSESSING OFFICER THAT ASSESSEE HAS RECEIVED TWO G IFTS OF ` 20,00,000/- ITA NO. 1229/DEL/2011 2 AND ` 1,00,000/- FROM TWO PERSON NAMELY SHIR OM PRAKA SH RANA AND SHRI RAGHU PRASAHAD TAPARIA RESPECTIVELY. THE ASS ESSEE WAS ASKED TO JUSTIFY THE GENUINENESS OF THE GIFT RECEIVED DUR ING THE YEAR. IN RESPONSE, ASSESSEE FURNISHED TWO AFFIDAVITS FROM TH E AFORESAID DONORS THEIR INCOME TAX PARTICULARS, PAN AND BANK STATEMEN T. THE ASSESSING OFFICER WAS NOT SATISFIED. HE HELD THAT ASSESSEE HAS NOT BEEN ABLE TO PROVE THE GENUINENESS OF THE GIFTS. HE NOTED THAT ASSESSEE IS NOT RELATED BY BLOOD TO THE ABOVE MENTIONED PERSONS. HE FURTHER NOTED THAT THERE WAS NO MENTION OF ANY OCCASION, ON WHIC H THE GIFT HAVE BEEN GIVEN. IN THIS CONNECTION, ASSESSING OFFICER FURTHER REFERRED THE STATEMENT OF SMT. GINNI GOSAIN, ASSESSEE HERSELF, RECORDED ON OATH ON 01.6.2006 AS UNDER:- Q10. DO YOU KNOW MR. OP RANA, VILLAGE KHERA KALAN, DELHI? ANS. NO, I DONT KNOW. Q11. CAN YOU RECALL GIFTS RECEIVED BY YOU DURING LAST SEVEN YEARS? ANS. ABOUT 15 LACS GIFTS HAS BEEN RECEIVED BY ME DURING LAST SEVEN YEARS. Q.12 FROM WHOM YOU HAVE RECEIVED THE GIFTS. ANS. FROM MY PARENTS. Q13. DO YOU RECALL THAT ANY GIFTS HAVE RECEIVED F ROM ANY PERSON OTHER THAN YOUR PARENTS. ANS. NO, I DONT KNOW RECALL. ITA NO. 1229/DEL/2011 3 3.1 REFERRING THE ABOVE, ASSESSING OFFICER HELD TH AT THERE IS SPECIFIC DENIAL REGARDING O.P. RANA, THE ALLEGED DONOR OF ` 2 0,00,000/- GIFT. THE GENUINENESS OF ALLEGED GIFT TRANSACTION ALSO DOES N OT FIT INTO THE TEST OF HUMAN PROBABILITIES. ASSESSING OFFICER OPINED THA T THE ABOVE MENTIONED GIFT TRANSACTIONS ARE NOTHING BUT ARRANGE D AFFAIR OF THE ASSESSEE. HENCE, HE TREATED THE GIFT OF ` 21,00,000 /- AS BOGUS AND ADDED BACK AS UNDISCLOSED INCOME OF THE ASSESSEE. 4. LD. COMMISSIONER OF INCOME TAX (APPEALS), IN THIS CONNECTION, NOTED THE FOLLOWING SUBMISSIONS OF THE ASSESSEE:- A) DOCUMENTS FILED DURING THE ASSESSMENT PROCEEDINGS IN SUPPORT OF THE GIFTS RECEIVED BY THE APPELLANT ARE : I) MEMORANDUM OF GIFT. II) AFFIDAVITS FROM DONOR. III) PAN CARDS OF DONORS AND IT PARTICULARS. IV) BANK STATEMENTS OF DONORS FOR THE RELEVANT PERIOD. V) FULL ADDRESSES OF THE DONORS. THEREFORE, THE ONUS REGARDING IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS W AS DULY DISCHARGED DURING THE ASSESSMENT PROCEEDINGS. B) AS REGARDS THE STATEMENT OF THE APPELLANT DURING SEARCH IN WHICH SHE FAILED TO ACKNOWLEDGE THE DON OR MR. OP RANA, WAS DUE TO DISCREPANCY IN THE ADDRESS AS ITA NO. 1229/DEL/2011 4 THE ADDRESS KNOWN TO THE APPELLANT WAS F-240, ANTRIKSH APARTMENT, SECTOR-14 EXTN., ROHINI, NEW DE LHI 85 WHEREAS THE ADDRESS CONFRONTED TO HER DURING T HE STATEMENT WAS VILL. KHERA KALAN, DELHI. C) THE ASSESSING OFFICER HAS NOT CONFRONTED THE APPELLANT WITH THE STATEMENT NOR ISSUED ANY SHOW CAUSE NOTICE BEFORE MAKING THE ADDITION. D) NO INCRIMINATING DOCUMENT WAS FOUND DURING THE SEARCH TO SHOW THAT THE AMOUNT GIFTED BY THE DONORS WAS PROVIDED BY THE DONEE. E) THE DONORS HAVE CONFIRMED THE GIFTS, FILED GIFT- DEEDS AND AFFIDAVITS, INCOME TAX PARTICULARS AND TH E ASSESSING OFFICER HAS NOT QUESTIONED THEIR IDENTIT Y AND CREDITWORTHINESS. F) THE ASSESSING OFFICERS CONCLUSION THAT THE ALLEGED GIFTS TRANSACTIONS ARE NOTHING BUT ARRANGE D AFFAIRS OF THE ASSESSEE IS NOT BASED ON ANY MATERI AL OR RECORD. G) CONTRARY TO THE VIEW HELD BY THE ASSESSING OFFICER, THERE IS NO LEGAL REQUIREMENT FOR THE DONE TO HAVE BLOOD RELATION WITH THE DONOR AND ANY OCCASIO N NECESSARY FOR THE GIFT. AS PER SECTION 122 OF THE TRANSFER OF PROPERTY ACT, 1882, GIFT IS TRANSFER OF PROPERTY VOLUNTARILY, WITHOUT CONSIDERATION BY DONO R TO DONE AND ACCEPTED BY THE DONE. ALL THESE CONDITIO NS ARE FULFILLED. ITA NO. 1229/DEL/2011 5 H) THE ASSESSING OFFICERS OBSERVATION DOES NOT F IT INTO THE TEST OF HUMAN PROBABILITIES IS VAGUE AND N OT A SPEAKING ORDER. I) THE DONORS HAVE NOT BEEN EXAMINED BY THE ASSESSING OFFICER AND NO COMMENTS IS MADE ON ` 1,00,000/- FROM SHRI RAGHU PRASAD TAPARIA. J) THE JURISDICTIONAL TRIBUNAL IN THE CASE OF MS. MAYAWATI VS. DCIT REPORTED AT 113 TTJ 178 (DELHI), I S IN FAVOUR OF THE APPELLANT. 4.1 CONSIDERING THE ABOVE, LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE ORDER OF THE ASSESSING OFFI CER WAS PRIMARILY BASED ON THE ASSESSEES STATEMENT RECORDED ON 01.6. 2006 REGARDING THE NAME OF SHRI OP RANAS AND THE GIFT RECEIVED. LD. COMMISSIONER OF INCOME TAX (APPEALS) CONCLUDED THAT THE CONCLUSI ON DRAWN BY THE ASSESSING OFFICER IS NOT BASED ON PRINCIPLES OF NA TURAL JUSTICE AND TENETS OF LAW REGARDING IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTION IN THIS CASE. HE FURTHER NOTED THAT SHRI OP RANAS ADDRESS CONFRONTED TO THE APPELLANT WAS GIVEN AS VILL. KHER A KALAN, DELHI WHEREAS THE ADDRESS IN HIS AFFIDAVIT, GIFT DEED AND INCOME TRETURN FILED WAS F.240, ANTRIKSH APARTMENT, SECTOR-14, EXTN. ROHI NI, NEW DELHI HAS NOT BEEN TAKEN INTO CONSIDERATION BY THE ASSESSING OFFICER. LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER NOTED T HAT ASSESSING OFFICER HAS GONE AHEAD TO ADD BOTH ` 20 LACS PERTA INING TO SHRI OM PRAKASH RANA AND ` 1 LAC PERTAINING TO SHRI RAGH U PRASAD TAPARIA WITHOUT MAKING ANY SPECIFIC ISSUE REGARDING SHRI TA PRIAS GIFT. LD. COMMISSIONER OF INCOME TAX (APPEALS) CONCLUDED THAT ASSESSING OFFICER HAS FAILED TO DISCHARGE HIS PART OF THE ON US AS REGARDS THE ITA NO. 1229/DEL/2011 6 EVIDENCES AND FACTS OF THE MATTER LED BY THE ASSES SEE DURING THE ASSESSMENT PROCEEDINGS. HENCE, LD. COMMISSIONER OF INCOME TAX (APPEALS) DIRECTED THE ADDITION BE DELETED. 5. AGAINST THE ABOVE ORDER, THE REVENUE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. ASSESSEE HAS SUBMITTED IN SUPPORT OF THE GIFTS (I) MEMORANDUM OF GIFT, (II) AFF IDAVITS FROM DONOR, (III) PAN CARDS OF DONORS AND IT PARTICULARS, (IV) BANK STATEMENT OF DONORS FOR THE RELEVANT PERIOD AND (V) FULL ADDRESS ES OF THE DONORS. THUS, WE FIND THAT ASSESSEE HAS DISCHARGED THE ONUS REGARDING IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE T RANSACTIONS. ASSESSING OFFICER HAS NOT BROUGHT ABOUT ANYTHING T O PROVE THAT IT WAS THE ASSESSEES OWN MONEY WHICH WAS RECEIVED IN THE F ORM OF GIFTS. LD. COMMISSIONER OF INCOME TAX (APPEALS) IS CORRECT IN H OLDING THAT ASSESSING OFFICERS VIEW IS PRIMARILY BASED ON TH E ASSESSEES STATEMENT RECORDED ON 01.6.2006 REGARDING THE NAME OF SHRI OP RANAS AND THE GIFT RECEIVED. HOWEVER, THE FACT IS THAT SHRI OP RANAS ADDRESS CONFRONTED TO THE ASSESSEE WAS GIVEN AS VI LL. KHERA KALAN, DELHI WHEREAS THE ADDRESS IN HIS AFFIDAVIT, GIFT DEE D AND INCOME TRETURN FILED WAS F.240, ANTRIKSH APARTMENT, SECTOR-14, EXT N. ROHINI, NEW DELHI HAS NOT BEEN TAKEN INTO CONSIDERATION BY THE A SSESSING OFFICER. THUS, WE FIND THAT WHEN THE ASSESSEE HAS DISCHARGED ITS ONUS ITA NO. 1229/DEL/2011 7 REGARDING THE SUPPORTING DOCUMENTS REGARDING THE GIF TS. ASSESSING OFFICER HAS NOT BROUGHT ANYTHING COGENT TO DISPUTE THE SAME. HE HAS ONLY STATED THAT THERE WAS ABSENCE OF BLOOD RELATIO N BETWEEN DONOR AND DONEE AND THAT THERE WAS NO OCCASION TO GIVE TH E GIFT. THESE ASPECTS ALONE DO NOT QUALIFY THE GIFTS AS BOGUS. THE CASE LAW OF MAYAWATI VS. DCIT 113 TTJ 178 (DELHI) IS GERMANE IN THIS REGARD. UNDER THE CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ACCORDINGLY, W E UPHOLD THE SAME. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/9/2011. SD/- SD/- [ [[ [I.P. BANSAL I.P. BANSAL I.P. BANSAL I.P. BANSAL] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 16/9/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES