Shri Kamlesh Ratilal Jariwala, Surat V. The Income tax Officer, Ward-5(2), Surat

ITA 1463/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5960 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 24-05-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: H P MEENA
• Assessee Lawyers: R N VEPARI
• Keywords: Gift
• Section: 68

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AT SURAT CAMP BEFORE S/SHRIT T.K.SHARMA, JM AND D.C.AGRAWAL, AM SHRI KAMLESH RATILAL JARIWALA, 8/55 GOPIPURA, SANGHADIAWAD, SURAT. PAN ABNPJ1563D VS . THE INCOME-TAX OFFICER, WARD 5(2), SURAT. (APPELLANT) .. (RESPONDENT) APPELLANTS BY :- SHRI R. N. VEPARI, AR RESPONDENT BY:- SHRI H. P. MEENA, SR.DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A) 24.1.2008 RAISING FOLLOWING GROUNDS :- (I) ADDITION U/S 68 OF GIFT OF RS.75,000/- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING GENUINE GIFT AS UNEXPLAINED CASH CRED IT. (2) THE LD. CIT(A) ERRED IN STATING THAT DONOR IS NOT R ELATING TO THE APPELLANT, WHEN SHE IS SISTER OF THE APPELLANT. (II) HOUSEHOLD EXPENSES (1) THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS.3 6,000/- BEING ALLEGED INADEQUATE WITHDRAWAL OF HOUSE HOLD E XPENSES. ITA NO.1463/AHD/2008 ASST. YEAR:2005-06 2 2. THE FIRST GROUND RELATES TO ADDITION IN RESPECT OF RS.75,000/- BEING GIFT RECEIVED BY THE ASSESSEE FROM ONE SMT. JYOTSNA BEN. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO FOUND THAT ASSESSEE HAS RECEIVED GIFT OF RS.75,000/- FROM SMT. JYOTSNABEN D EEPAK KUMAR. THE ASSESSEE WAS ASKED TO FURNISH CONFIRMATION AND BANK STATEMENT OF THE DONOR WHICH WAS FURNISHED. ON EXAMINATION OF THAT S TATEMENT IT WAS REVEALED THAT SHE DID NOT HAVE SUFFICIENT BALANCE I N HER BANK ACCOUNT ON 28.12.2004 WHEN SHE HAD DEPOSITED CASH OF RS.50,000 /- AND RS.1 LACS ON 28.12.2004 AND ON 29.12.2004 RESPECTIVELY. THEREAFT ER ON 30.12.2004 SMT. JYOTSNABEN ISSUED A CHEQUE OF RS.75,000/- IN F AVOUR OF ASSESSEE. THE AO SOUGHT TO TAX THIS SUM AS UNEXPLAINED CASH C REDIT UNDER SECTION 68. IN RESPONSE TO SHOW CAUSE NOTICE IT WAS EXPLAIN ED THAT SMT. JYOTSNABEN IS ASSESSED TO TAX. SHE HAD CASH BALANCE AVAILABLE OF RS.2,58,768/- AND RS.208,768/- ON 28.12.2004 AND 29 .12.2004 OUT OF WHICH SHE HAD DEPOSITED MONEY IN THE BANK ACCOUNT. A COPY OF THE ACKNOWLEDGEMENT OF THE RETURN FILED BY HER FOR ASST . YEAR 2005-06 ALONG WITH COPY OF CAPITAL ACCOUNT SHOWING ENTRY OF THE G IFT WAS FILED. THE AO REJECTED THE EXPLANATION AND HELD THAT THERE WAS A DIRECT NEXUS BETWEEN THE CASH DEPOSIT AND CHEQUE ISSUED BY SMT. JYOTSNAB EN. PRIOR TO THIS DEPOSIT SMT. JYOTSNABEN DID NOT HAVE SUFFICIENT MON EY IN THE BANK ACCOUNT. ACCORDINGLY, THE AO TREATED THE GIFT AS NO N GENUINE. 3. THE LD. CIT(A) CONFIRMED THE ADDITION ON THE GRO UND THAT THERE IS HARDLY ANY DEPOSIT WORTH THE NAME PRIOR TO 28.12.20 04. THERE APPEARED NO RELATIONSHIP BETWEEN THE ASSESSEE AND THE DONOR AND IT IS AGAINST HUMAN NATURE TO PART AWAY MONEY AND GIFT THE AMOUNT TO A STRANGER AND FURTHER THAT THERE WAS NO OCCASION TO GIVE SUCH GIF TS. 3 4. AGAINST THIS, LD. AR FOR THE ASSESSEE SUBMITTED THAT IT IS INCORRECT ON THE PART OF THE AUTHORITIES BELOW TO HOLD THAT T HERE WAS NO RELATIONSHIP BETWEEN THE DONOR AND THE DONEE. THE DONOR IS THE R EAL SISTER OF THE DONEE AND SHE HAD ENOUGH OF CASH BALANCE IN HER BOOKS. SH E IS ASSESSED TO TAX AND, THEREFORE, GIFT SHOULD BE TREATED AS GENUINE. 5. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS O F AUTHORITIES BELOW. HE SUBMITTED THAT GENUINENESS OF THE GIFT HAS NOT B EEN PROVED, NO EVIDENCE OF RELATIONSHIP HAS BEEN FURNISHED, IT IS STRANGE THAT SHE COULD PART AWAY ENTIRE OF HER CAPITAL IN FAVOUR OF THE AS SESSEE, THERE IS NO OCCASION FOR GIVING ANY GIFT, RELATIONSHIP AS CLAIM ED BY THE ASSESSEE THAT DONOR IS REAL SISTER OF THE ASSESSEE IS NOT ESTABLI SHED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW ONE FACTOR WHICH SEEMS TO HAVE BEEN OVERLOOKED BY THE AUTHORITIES BELOW IS THAT DONOR I S THE REAL SISTER OF THE ASSESSEE EVEN THOUGH THIS ASPECT WAS NOT CLAIMED BE FORE THEM. FURTHER HOW MUCH CAPITAL IS LEFT OUT WITH THE DONOR AFTER G IVING GIFT IS ALSO NOT KNOWN. THE SOURCE OF INCOME AND HER CREDITWORTHINES S IS ALSO NOT PROPERLY ESTABLISHED. WE WOULD, THEREFORE, APPRECIA TE IF DONOR IS PRODUCED BEFORE THE AO WHO WILL SATISFY HIMSELF ABO UT THE VARIOUS FACTORS RELATING TO GENUINENESS OF THE GIFT AND HUM AN PROBABILITIES OR OTHER CIRCUMSTANTIAL CONSIDERATIONS WHICH WILL PROM PT THE DONOR TO PART AWAY HER CAPITAL IN FAVOUR OF THE ASSESSEE. WE REST ORE THE MATTER TO THE FILE OF AO FOR EXAMINING THE ISSUE AFRESH. THIS GRO UND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. THE NEXT ISSUE IS REGARDING HOUSEHOLD EXPENDITUR E IN RESPECT OF WHICH AO HAS PROPOSED AN ADDITION OF RS.36,000/-. T HE AO NOTICED THAT 4 ASSESSEES FAMILY IS CONSISTING OF 5 MEMBERS AND TO TAL WITHDRAWAL IS SHOWN AT RS.72,000/- AND RS.24,000/- TOTALING TO RS .96,000/. THE AO ASKED THE DETAILS OF VARIOUS HOUSEHOLD EXPENDITURE BUT NO SUCH DETAILS WERE FURNISHED. THE AO ACCORDINGLY ESTIMATED AN ADD ITIONAL EXPENDITURE OF RS.36,000/- AND ADDED THE SAME TO THE TOTAL INCO ME OF ASSESSEE. THE LD. CIT(A) CONFIRMED THE SAME AS NO FURTHER DETAILS WER E FURNISHED BEFORE HIM. 8. WE HAVE HEARD THE PARTIES AND GONE THROUGH THE M ATERIAL AVAILABLE ON RECORD. WE DECLINE TO INTERFERE IN THE ESTIMATE MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A). IT IS BECAUSE ASSESSEE FAILED TO FURNISH ANY EVIDENCE REGARDING VARIOUS EXPENDITURES RELATING TO HOUSEHOLD AS CALLED FOR BY THE AO. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 11/6/2010 SD/- SD/- (T.K. SHARMA) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED : 11/6/2010 MAHATA/- 5 COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD