Smt. Mina Goyal W/o Harish Chand Goyal, Morena V. I.T.O.-2(2), Gwalior

ITA 136/AGR/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0382 (ITAT-AGRA)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 26-04-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 07-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH CHAND AGARWAL
• Keywords: Gift; Onus to prove
• Section: 143(3); 133(6); 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.136/AGR./2010 ASSTT. YEAR : 2001-02 SMT. MINA GOYAL, VS. INCOME TAX OFFICER - 2(2), W/O. SHRI HARISH CHAND GOYAL, GWALIOR. NEAR RAMBABU HALWAI GALI, SADAR BAZAR, MORENA (M.P.) (PAN: AHOPD 0125 A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH CHAND AGARWAL, ADVOCATE RESPONDENT BY : SHRI VINOD KUMAR, JR. D.R. ORDER THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 22.02.2010 PASSED BY THE LD. CIT(A), GWALIOR ON THE FOLLOWING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE ASSESSING OFFICER ERRED IN LAW IN INITIATING PROCEEDINGS U/S 147 BY ISSUE OF NOTICE U/S 148 IN AS MUCH AS - (I) THE ASSESSING OFFICER HAD NO CREDIBLE AND RELIA BLE MATERIAL AT THE TIME OF ISSUE OF NOTICE OF U/S 148 TO HAVE REAS ON TO BELIEVE THAT THE GIFT OF ` 50000 CREDITED IN ASSESSEES CAPITAL ACCOUNT WAS NOT GENUINE AND THERE BY ASSESSEE INCOME HAS ES CAPED ASSESSMENT. (II) THE REASON RECORDED DO SUGGEST THAT ACTION U/S 147 WAS INITIATED AND NOTICE U/S 148 WAS ISSUED FOR PURPOSE S OF MAKING 2 ENQUIRIES INTO THE GENUINENESS OF GIFT WHICH IS IMP ERMISSIBLE UNDER THE LAW. (III) THE ASSESSING OFFICER HAS ISSUED NOTICE U/S 1 48 ONLY ON THE BASIS OF SUSPICION, CONJECTURES & IMAGINATION THAT THE GIFT SEEMS TO BE NOT GENUINE. (IV) THE ASSESSING OFFICER HAS SUBSTITUTED THE NOTI CE U/S 143(2) BY ISSUE OF NOTICE U/S 148 AND HAS ACTED AGAINST THE P ROVISIONS OF LAW. (V) THE DETAILS OF INCOME, COMPUTATION & CAPITAL AC COUNT DISCLOSING THE RECEIPT OF THE GIFT ` 50000. THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND T RULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. (VI) NO REASONS WERE EXISTING AT THE TIME OF ISSUE OF NOTICE U/S 148 THAT APPELLANTS INCOME HAS ESCAPED ASSESSMENT AND AFTER ISSUE OF NOTICE, THE REASONS AND GROUNDS FOR ISSUE OF NOT ICE U/S 148 WERE BEING EXPLORED. THE CIT(A) ERRED IN NOT ACCEP TING THIS GROUND AND CONFIRM THE ASSESSMENT ORDER. 2. THE ASSESSMENT FRAMED ON THE BASIS OF ILLEGAL NO TICE U/S 148 MAY KINDLY BE QUASHED. 3. WITHOUT PREJUDICE TO ABOVE THE ASSESSEE IN THE C OURSE OF THE SO CALLED ASSESSMENT PROCEEDING HAVING DISCHARGED THE ONUS OF PROVING THE GIFT OF ` 50000 TAXATION THERE AS UNEXPLAINED INCOME IS TOTAL LY UNJUSTIFIED AND ILLEGAL. THE CIT(A) ERRED IN NOT ACCEPTING THIS GROUND. 4. THE ILLEGAL ASSESSMENT AND ILLEGAL ADDITION MAY KINDLY BE QUASHED AND APPEAL ALLOWED. 5. THE ASSESSEE CRAVES LEAVE TO ADD ANY NEW GROUND OF APPEAL AND OR TO MODIFY AMEND ALTER OR SUBSTITUTE ANY OF THE A BOVE GROUND F APPEAL. 3 2. THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME ON 31.03.2002 DECLARING TOTAL INCO ME OF ` 74,280/-. THE ASSESSEE HAS ALSO ENCLOSED THE CAPITAL ACCOUNT WITH HER RETU RN, IN WHICH A SUM OF ` 50,000/- HAS BEEN CREDITED AS RECEIPT OF GIFT FROM SMT. RAJN I GOYAL. THE ASSESSING OFFICER WAS OF THE OPINION THAT THE ASSESSEE HAS NOT FURNIS HED FULL AD TRUE PARTICULARS OF ALLEGED GIFT AND HE REOPENED THE CASE OF THE ASSESS EE UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) AND IS SUED NOTICE TO THE ASSESSEE UNDER SECTION 148 OF THE ACT ON 10.01.2005. IN COM PLIANCE TO THE SAME, THE ASSESSEE FILED HER WRITTEN SUBMISSION ON 25.02.2005 STATING INTER ALIA THAT THE RETURN FILED ORIGINALLY MAY BE TREATED IN COMPLIANCE OF NO TICE UNDER SECTION 148 OF THE ACT. THE ASSESSING OFFICER ALSO ISSUED NOTICE UNDE R SECTION 143(2) ON 12.07.2005 FIXING THE CASE OF THE ASSESSEE FOR 29.07.2005. IN COMPLIANCE OF THE SAME, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER ON 10.08.2005 AND REQUESTED THAT WRITTEN REPLY FILE D ON 28.07.2005 MAY BE CONSIDERED. THE ASSESSING OFFICER CONSIDERED THE S AME AND NOT FOUND CONVINCING AND REJECTED THE SAME BY PASSING INTERLOCUTORY ORDE R ON 31.08.2005. THE ASSESSEE WAS REQUIRED TO COMPLETE ALL THE QUERIES MADE VIDE ORDER SHEET DATED 10.08.2005 IN REGARD TO FURNISHING OF DETAILS OF GIFT INCLUDIN G THAT OF PRODUCING THE DONORS TO BE EXAMINED AND ALSO TO PROVE THE OWNERSHIP OF JEWE LLERY SOLD WITH EVIDENCES. BUT THE ASSESSEE FILED AN APPLICATION UNDER SECTION 144A OF THE ACT BEFORE THE JT. CIT, RANGE-2, GWALIOR ON 16.09.2005 AND REQUESTED T HE ASSESSING OFFICER TO KEEP 4 THE PROCEEDINGS IN ABEYANCE TILL THE DIRECTION OF J T. CIT, RANGE-2, GWALIOR. THE JT. CIT, RANGE-2, GWALIOR VIDE LETTER DATED 09.01.2006 REJECTED THE REQUEST OF THE ASSESSEE AND ALLOWED THE ASSESSING OFFICER TO PROCE ED IN THE MATTER ON MERIT. THE ASSESSING OFFICER ALSO WRITTEN A LETTER TO THE DONO R AS WELL AS TO THE BANK ABOUT THE CREDITWORTHINESS OF THE DONOR AS WELL AS THE GENUIN ENESS OF THE TRANSACTION. THE ASSESSING OFFICER HAS WRITTEN A LETTER TO THE DONOR ON 24.01.2006 ON THE ADDRESS GIVEN BY THE ASSESSEE REQUIRING DETAILS OF INFORMAT ION ON 26 POINTS WITH A VIEW TO DRAW THE CONCLUSION ABOUT THE CREDITWORTHINESS OF T HE DONOR AS WELL AS GENUINENESS OF THE TRANSACTION AND DIRECTED THE DONOR TO SUBMIT HER INFORMATION TO THE POINTS ON DULY SWORN IN AFFIDAVIT ON OR BEFORE 02.02.2006 POS ITIVELY BUT THE DONOR DID NOT FURNISH THE INFORMATION REQUIRED BY THE ASSESSING O FFICER EITHER ON AFFIDAVIT OR BY APPEALING BEFORE THE ASSESSING OFFICER. THE ASSESS EE HAS ALSO FAILED TO PRODUCE THE DONOR FOR EXAMINATION BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER VIDE LETTER DATED 31.01.2006 REQUESTED THE PUNJAB AND SI NDH BANK, MORENA FOR FURNISHING THE INFORMATION REGARDING ACCOUNT OF SMT . RAJNI GOYAL, DONOR AND ALSO REQUESTED THE BANK TO FURNISH PHOTOCOPY OF THE CASH DEPOSIT SLIP OF ` 50,000/- MADE BY DONOR IN HER ACCOUNT ON 29.11.2002. THE AS SESSING OFFICER ALSO REQUESTED THE BANK AUTHORITY FOR SUPPLYING OF PHOTO COPY OF CHEQUE OF ` 50,000/- ISSUED ON 06.12.2000 TO SMT. MINA GOYAL (THE ASSESS EE). IN COMPLIANCE OF THE SAME, THE BRANCH MANAGER OF PUNJAB & SINDH BANK VID E LETTER DATED 15.05.2006 HAS SUPPLIED THE PHOTOCOPIES OF CASH DEPOSIT SLIP O F ` 50,000/- AND ALSO PHOTOCOPY 5 OF CHEQUE DATED 06.12.2000 FOR ` 50,000/- TO SMT. MINA GOYAL. THE ASSESSING OFFICER PERUSED THE SAME AND FOUND THAT THERE IS NO SIGNATURE OF SMT. RAJNI GOYAL ON THE DEPOSIT SLIP OR ON CHEQUE NO.040575 DATED 06 .12.2000 FOR ` 50,000/- ISSUED ALLEGEDLY TO DONEE. AFTER CONSIDERING THE RECORDS AVAILABLE WITH THE ASSESSING OFFICER, THE ASSESSING OFFICER PROPOSED TO ADD BACK THE AMOUNT OF ` 50,000/- AS NON GENUINE GIFT DEEMING IT THE INCOME OF THE ASSES SEE UNDER SECTION 68 OF THE ACT AS INCOME FROM OTHER SOURCES AND COMPLETED THE ASSE SSMENT UNDER SECTION 143(3) ON 28.02.2006. AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO, VIDE THE IMPUGNED OR DER DATED 22.02.2010, DISMISSED THE APPEAL FILED BY THE ASSESSEE. AGGRIE VED BY THE SAME, THE ASSESSEE HAS FILED THE PRESENT APPEAL. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE REVENUE AUTHORITIES HAS PASSED THE IMPUGNED ORDERS AGAINST LAW AND FACTS ON FILE WHICH DESERVES TO BE CANCELLED. HE FURTHER STATED THAT THE ASSESSEE IS A LADY, FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR IN DIS PUTE ALONG WITH COMPUTATION SHEET OF INCOME, DETAILS OF INCOME TOGETHER WITH SO URCE OF CAPITAL ACCOUNT SHOWING ` 50,000/- ON ACCOUNT OF GIFT RECEIVED FROM SMT. RAJ NI GOYAL, W/O. SAHRI SANDEEEP GANGIL WHO IS SISTER-IN-LAW (NAND) OF THE ASSESSEE. HE STATED THAT THE ASSESSEE HAS FILED ALL THE NECESSARY EVIDENCES TO P ROVE THE GENUINENESS OF THE GIFT IN DISPUTE AND CREDITWORTHINESS OF THE DONOR BY FIL ING PAN AND INCOME TAX RETURN 6 BUT THE REVENUE AUTHORITIES HAS NOT APPRECIATED THE SAME KNOWING THAT THE DONOR IS IN GOVERNMENT SERVICE AND WORKING AS A TEACHER. HE FURTHER STATED THAT THE ASSESSING OFFICER HAS WRONGLY ISSUED NOTICE UNDER S ECTION 148 DATED 10.01.2005 WHICH IS ILLEGAL AND WITHOUT APPRECIATING THE RECOR DS OF THE CASE. THE ASSESSEE BEING A LADY HAS RECEIVED GIFT FROM HER SISTER-IN-L AW AMOUNTING TO ` 50,000/- BY CHEQUE ISSUED BY PUNJAB & SINDH BANK, MORENA. THE ASSESSEE HAS ALSO DISCHARGED HER ONUS TO PROVE THE GENUINE TRANSACTION AND CREDI TWORTHINESS. INSPITE OF THE SAME, THE ASSESSING OFFICER HAS MADE THE ADDITION I N DISPUTE WHICH HAS WRONGLY BEEN UPHELD BY THE LD. FIRST APPELLATE AUTHORITY. HE REQUESTED THAT THE ADDITION IN DISPUTE MAY BE CANCELLED BY ACCEPTING THE APPEAL FI LED BY THE ASSESSEE. 4. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY AND MAI NLY STATED THAT THE ASSESSEE HAS NOT COMPLIED ANY DIRECTION ISSUED BY THE ASSESSING OFFICER, ESPECIALLY THE ASSESSEE HAS NOT PRODUCED THE DONOR BEFORE THE ASSESSING OFF ICER INSPITE OF VARIOUS OPPORTUNITY PROVIDED TO THE ASSESSEE. THEREFORE, THE REVENUE AUTHORITIES HAS PASSED A WELL REASONED ORDER ON THE BASIS OF RECORD S BECAUSE THE ASSESSEE HAS NOT PROVED THE GIFT AS GENUINE AND CREDITWORTHINESS OF THE DONOR. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS AVAILABLE WITH ME. AS PER ORDER PASSED BY THE REVENUE AUTHORITIES, A DIRE CTION HAS BEEN ISSUED BY THE 7 ASSESSING OFFICER TO COMPLY THE QUERIES MADE VIDE O RDER SHEET DATED 10.08.2005 IN REGARD TO FURNISHING OF DETAILS OF GIFT INCLUDIN G THAT OF PRODUCING THE DONOR FOR EXAMINATION AND ALSO TO PROVE THE OWNERSHIP OF JEWE LLERY SOLD WITH EVIDENCES. THE ASSESSING OFFICER HAS ALSO ISSUED LETTER TO THE DONOR SMT. RAJNI GOYAL, D/O. BHAROSI LAL, W/O. SHRI SANDEEP GANGIL,J-38, HIG AYO DHYA NAGAR, BHOPAL ON THE ADDRESS GIVEN BY THE ASSESSEE ASKING THE DONOR TO P ROVIDE THE INFORMATION/REPLY ON 26 POINTS WITH A VIEW TO DRAW THE CONCLUSION ABUT T HE CREDITWORTHINESS OF THE DONOR AS WELL AS GENUINENESS OF TRANSACTION ON OR BEFORE 02.02.2006. THE ASSESSING OFFICER HAS CALLED FOR THESE INFORMATION UNDER SECT ION 133(6) OF THE ACT AND IN COMPLIANCE OF THE SAME, THE DONOR DID NOT FURNISH A NY INFORMATION AS REQUIRED BY THE ASSESSING OFFICER. THE ASSESSEE HAS ALSO FAILE D TO PRODUCE THE DONOR BEFORE THE ASSESSING OFFICER, INSPITE OF SUFFICIENT OPPORTUNIT Y GIVEN BY THE ASSESSING OFFICER TO THE ASSESSEE. THE ASSESSING OFFICER HAS ALSO IS SUED LETTER DATED 31.01.2006 TO THE BRANCH MANAGER OF PUNJAB & SINDH BANK, MORENA R EQUESTING TO FURNISH SOME INFORMATION ON THE TRANSACTION IN DISPUTE. IN COMP LIANCE OF THE SAME, THE BRANCH MANAGER OF PUNJAB & SINDH BANK, MORENA VIDE LETTER DATED 15.02.2006 HAS SUPPLIED THE REQUISITE INFORMATION AS REQUIRED BY T HE ASSESSING OFFICER. AFTER GOING THROUGH THE EVIDENCES AND CIRCUMSTANCES, THE ASSESSING OFFICER ESTABLISHED HIS OPINION THAT THE CHEQUE HAS NOT BEEN ISSUED BY THE DONOR, RATHER IT HAS BEEN ISSUED BY THE HUSBAND OF THE ASSESSEE. THUS, THE A LLEGED GIFT OF ` 50,000/- IS IN FACT THE MONEY OF THE ASSESSEE WHICH HAS BEEN COLORIZED AND GIFTED TO MAKE THE TAX 8 PLANNING AND SUCH PLANNING IS NOT PERMISSIBLE AS PE R LAW AND HE ADDED BACK THE AMOUNT OF ` 50,000/- AS NON GENUINE GIFT DEEMING IT THE INCOME OF ASSESSEE UNDER SECTION 68 OF THE ACT AS INCOME FROM OTHER SOURCES. AS REGARDS TO THE LEGAL OBJECTION REGARDING ISSUANCE OF NOTICE UNDER SECTIO N 148 OF THE ACT WHICH WAS RAISED BY THE ASSESSEE, THE ASSESSING OFFICER HAS P ASSED INTERLOCUTORY ORDER DATED 31.08.2005 AND REJECTED THE SAME. AFTER GOING THROU GH THE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY, I AM OF THE CONSIDERED OPINION THAT THE ONLY AND MAIN OBJECTION OF THE REVENUE AUTHORITIES IS THAT THE ASSESSEE HAS NOT PRODUCED THE DONOR FOR EX AMINATION BEFORE THE ASSESSING OFFICER FOR SUBSTANTIATING THE CLAIM OF THE ASSESSE E. AS STATED BY THE LD. COUNSEL FOR THE ASSESSEE, DURING THE COURSE OF HEARING, THA T DONOR IS A LADY AND IS WORKING AS A TEACHER IN THE GOVERNMENT SCHOOL. THE ASSESSE E FEELS SOME HESITATION TO PRODUCE THE DONOR BEFORE THE ASSESSING OFFICER, BUT KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, I AM OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS TO PRODUCE THE DONOR FOR EXAMINATION A ND FOR SUBSTANTIATING HER CLAIM BEFORE THE ASSESSING OFFICER. THEREFORE, IN THE IN TEREST OF JUSTICE, I DEEM IT FIT UNDER THE CIRCUMSTANCES, THAT SUFFICIENT OPPORTUNIT Y SHOULD BE GRANTED TO THE ASSESSEE TO PRODUCE THE DONOR BEFORE THE ASSESSING OFFICER WHO WILL EXAMINE THE DONOR SMT. RAJNI GOYAL, D/O. BHAROSI LAL, W/O. SHRI SANDEEP GANGIL WHO IS REAL SISTER-IN-LAW OF THE ASSESSEE AS STATED BY THE LD. AUTHORISED REPRESENTATIVE. THE ASSESSING OFFICER IS DIRECTED TO PUT THE QUESTIONS TO THE DONOR RELATING TO THE GIFT IN 9 DISPUTE PROVING THE IDENTITY AND CREDITWORTHINESS O F THE DONOR AS WELL AS GENUINENESS OF TRANSACTION. IT IS ALSO MADE CLEAR THAT IF THE ASSESSEE IS INTERESTED TO CROSS-EXAMINATION THE DONOR, SHE HAS LEGAL RIGHT TO CROSS EXAMINE THE DONOR ON THE GIFT IN DISPUTE AS WELL AS SHE CAN ALSO RAISE A LEG AL OBJECTION ON ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT WHICH SHALL BE DECIDED BY THE ASSESSING OFFICER PRIOR TO GIVING THE DECISION ON MERIT ON THE GIFT IN DISP UTE. WITH THESE DIRECTIONS, THE ISSUE IN DISPUTE IS SET ASIDE TO THE ASSESSING OFFI CER TO DECIDE THE SAME AFRESH UNDER LAW, AFTER GIVING OPPORTUNITY TO THE ASSESSEE AND AS PER DIRECTIONS ISSUED ABOVE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 29.04.2011) SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 29 TH APRIL, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL, AGRA TRUE COPY