ITO, New Delhi V. Smt. Gurinder Kaur, New Delhi

ITA 1312/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81929 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 17-11-2014
• Assessment Year: 1993-1994
• Appeal Filed On: 06-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: SALIL AGARWAL SHAILESH GU PTA; SANJEEV JAI
• Keywords: Gift
• Section: 68; 143(3)

Judgement Text

I.T.A. NO.: 1312/DEL/13 ASSESSMENT YEARS: 1993 - 94 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI C BENCH, NEW DELHI [CORAM: PRAMOD KUMAR AM , AND C . M . GARG JM ] I.T.A. NO .: 1312/DEL/13 ASSESSMENT YEAR S: 1993 - 94 INCOME TAX OFFICER WARD 33(4), NEW DELHI .. .APPELLANT VS. GURINDER KAUR . RESPONDENT R 831, NEW RAJINDER NAGAR NEW DELHI 110 060 [ PAN: AALP9195K] APPEARANCES BY: SATPAL SINGH, FOR THE APPELLANT SALIL AGARWAL, SHAILESH GUPTA AND SANJEEV JAIN , FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1 . THIS IS AN AP PEAL FILED BY THE ASSESSING OFFICER AND IS DIRECTED AGAINST THE ORDER DATED 27 TH NOVEMBER 2012 PASSED BY THE CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 1993 - 94. 2. GRIEVANCES RAISED BY THE ASSESSING OFFICER ARE AS FOLLOWS: 1. THE CIT(A) HAS ERRED IN DELETING ADDITION OF RS 21,00,000 UNDER SECTION 68 OF THE ACT, ON ACCOUNT OF UNEXPLAINED GIFT RECEIVED BY THE ASSESSEE. 2. THE CIT(A) HAS ERRED IN HOLDING THAT THE PROVISIONS OF SECTION 68 OF T HE INCOME TAX ACT IS NOT APPLICABLE IN THIS CASE AS THE ASSESSEE IS NOT MAINTAINING THE BOOKS OF ACCOUNTS. I.T.A. NO.: 1312/DEL/13 ASSESSMENT YEARS: 1993 - 94 PAGE 2 OF 3 3. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIAL FACTS NEED TO BE TAKEN NOTE OF. THIS IS SECOND ROUND OF PROCEEDINGS AND THE ISSUE IN APPEAL CEN TRES AROUND A GIFT OF RS 21,00,000 RECEIVED BY THE ASSESSEE. THE ALLEGATION OF THE ASSESSING OFFICER IS THAT IT IS A BOGUS GIFT AND THE ASSESSEE HAS SIPHONED HIS OWN UNACCOUNTED FUNDS BY GIVING THEM GARB OF A GIFT RECEIVED FROM A NON RESIDENT INDIAN, BUT, ACCORDING TO THE ASSESSING OFFICER, CREDITWORTHINESS OF THE DONOR IS NOT ESTABLISHED. THIS IS SECOND ROUND OF PROCEEDINGS. IN THE FIRST ROUND OF PROCEEDINGS, WHEN THE MATTER TRAVELLED BEFORE A COORDINATE BENCH OF THIS TRIBUNAL, THE MATTER WAS REMITTED TO THE FILE OF THE ASSESSING OFFICER. WHILE DOING SO, THE COORDINATE BENCH HAD, INTER ALIA, OBSERVED THAT .IN THE PRESENT CASE, THESE DOCUMENTS WERE VERY MUCH AVAILABLE BEFORE THE AUTHORITIES BELOW AND IN THE LIGHT OF THESE BANK DOCUMENTS, THE CREDITWORTHIN ESS OF THE DONOR CANNOT BE REJECTED OUTRIGHT WITHOUT MAKING FURTHER ENQUIRY FROM THE BANK OF THE DONOR OR FROM THE DONOR. NO SUCH ENQUIRIES WAS MADE BY THE AUTHORITIES BELOW IN THIS CASE.. THE MATTER WAS THUS RESTORED TO THE FILE OF THE ASSESSING OFFIC ER FOR A FRESH DECISION, AFTER MAKING FURTHER ENQUIRY IN THE MATTER. HOWEVER, WHEN THE MATTER TRAVELLED BACK TO THE ASSESSING OFFICER, HE REITERATED THE ADDITION EVEN AS NO FURTHER ENQUIRY ON THE ABOVE LINES WAS MADE. AGGRIEVED, ASSESSEE CARRIED THE MAT TER IN APPEAL BEFORE THE CIT(A) AND THE DELETED THE IMPUGNED ADDITION. THE ASSESSING OFFICER IS AGGRIEVED AND IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 5. WHEN LEARNED DEPARTMENTAL REPRESENTATIVE WAS ASKED WHETHER THE ASSESSING OFFICER DID IN FACT MAKE FURTHER INQUIRIES ON THE LINES DIRECTED BY THE TRIBUNAL, HE WAS NOT IN A POSITION TO CONFIRM THE SAME. A PLAIN LOOK AT THE ASSESSMENT ORDER DOES NOT INDICATE ANY SUCH INQUIRY EITHER. THE ASSESSING OFFICER HAD SIMPLY REITERATED HIS EARLIER FINDINGS AND DID NOT TAKE TROUBLE TO I.T.A. NO.: 1312/DEL/13 ASSESSMENT YEARS: 1993 - 94 PAGE 3 OF 3 MAKE ANY INQUIRIES. AS LEARNED COUNSEL FOR THE ASSESSEE RIGHTLY CONTENDS, RELYING UPON HON BLE PUNJAB & HARYANA HIGH COURT DECISION IN THE CASE OF CIT VS FCS INTERNATIONAL MARKETING LTD (283 ITR 32), THE ASSESSEE CANNOT FACE ENDLESS LITIGATION JUST BECAUSE THE ASSESSING OFFICER REFUSES TO SHED HIS INERTIA AND INACTION. IN ANY CASE, IT IS ADMITT ED POSITION THAT NO BOOKS OF ACCOUNTS WERE MAINTAINED BY THE ASSESSEE AND, FOLLOWING HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT IN THE CASE OF CIT VS MAYAWATI (338 ITR 563), AN ADDITION UNDER SECTION 68 CANNOT BE MADE FOR THIS REASON EITHER. THAT ASPECT OF THE MATTER, HOWEVER, IN THE GIVEN FACTS IS SOMEWHAT ACADEMIC AND WE NEED NOT DEAL WITH THE SAME IN MUCH DETAIL. 6. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE APPROVE THE CONCLUSIONS ARRIVED AT BY THE CIT(A) AND DECLI NE TO INTERFERE IN THE MATTER. 7. IN THE RESULT, THE APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON 18 TH DAY OF NOVEMBER, 2014. SD/XX SD/XX C M GARG PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NEW DELHI, 18 TH DAY OF NOVEMBER, 2014 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT (A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLA TE TRIBUNAL D ELHI BENCHES, NEW DELHI