Hari Mohan Gupta, New Delhi V. ITO, New Delhi

ITA 1547/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61815 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 26-07-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 03-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Keywords: Gift
• Section: 148; 68

Judgement Text

I.T.A. NO. 1547/DEL/2012 1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 1547/DEL/2012 A.Y. : 2002-03 HARI MOHAN GUPTA, VS. INCOME TAX OFFICER, B-2/148, PASCHIM VIHAR, WARD NO. 25(4), NEW DELHI NEW DELHI (PAN : AAHPG4902A) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : DR. B.R.R. KUMAR, SR. D.R. O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVII, NEW DELH I DATED 31.1.2012 PERTAINING TO ASSESSMENT YEAR 2002-03. 2. THE GROUNDS OF APPEAL READ AS UNDER:- I) THAT THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF ` 4,00,000/- U/S. 68 OF THE I.T. ACT, 1961 WITHOUT ANY JUSTIFICATION AND MATERIAL ON RECORD. II) THAT THE LOWER AUTHORITIES HAVE ERRED IN LAW I N IGNORING THE DOCUMENTS FILED BY THE APPELLANT, WHILE COMING TO THE CONCLUSION THAT APPELLANT HAS FAILED TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE DONORS. I.T.A. NO. 1547/DEL/2012 2 THAT THE RATIO OF THE JUDGEMENTS IN THE CASE OF RA JEEV TONDON REPORTED IN 294 ITR 488 IS NOT APPLICABLE TO THE APPELLANTS CASE. III) THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUD ICE TO ONE AND ANOTHER. IV) YOUR APPELLANT CRAVES, LEAVE, TO ADD, ALTER, A MEND AND / OR FOREGO ANY OF GROUNDS OF THE GROUNDS APPEAL AT THE TIME OF HEARING. 3. IN THIS CASE BASED ON THE INFORMATION RECEIVED FR OM THE INVESTIGATION WING THAT THE ASSESSEE HAD RECEIVED A CCOMMODATION ENTRY OF ` 4,00,000/- FROM TWO ENTRY OPERATORS, THE ASSESSING OFFICER ISSUED NOTICE U/S. 148 TO THE ASSESSEE ON 25.3.2009 . ASSESSEE HAD RECEIVED GIFT TOTALING TO ` 4 LACS FROM FOLLOWING T WO PERSONS: (I) MR. NARINDER KUMAR GUPTA ` 2 LACS (II) MR. VINODI LAL AGGARWAL ` 2 LACS. ASSESSEE WAS ASKED TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE TWO DONORS. IN RESPONSE, THE ASSESSEE FILED AFFIDAVITS, COPY OF GIFT DEEDS, PAN AND COPIES OF IT R. HOWEVER, AS THE ASSESSEE COULD NOT PROVE THE CREDITWORTHINESS OF AB OVE TWO DONORS, THE ASSESSING OFFICER ADDED THE AMOUNT OF ` 4 L ACS U/S. 68 OF THE I.T. ACT, 1961. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (A) NOTED THAT THE DURING THE APPELLATE PROCEEDINGS ASS ESSEE WAS SPECIFICALLY INTIMATED THAT IN CASE OF GIFT, THE AS SESSEE HAS TO PROVE THE I.T.A. NO. 1547/DEL/2012 3 OCCASION, RELATIONSHIP AND RECIPROCITY OF THE GIFT TO SHOW THAT THE GIFT WAS GENUINE AS PER THE DECISION OF THE HONBLE DELH I HIGH COURTS IN THE CASE OF RAJEEV TONDON REPORTED IN 294 ITR 488 READ. HOWEVER, ASSESSEE COULD NOT SATISFACTORILY REPLY UPON THIS. LD. COMMISSIONER OF INCOME TAX (A) FURTHER NOTED THAT THE CREDITWORT HINESS OF THE DONORS WAS NOT PROVED DURING THE APPELLATE PROCEEDINGS . THE RETURNS OF INCOME OF THE DONORS FOR THE RELEVANT ASSESSMENT Y EAR IN WHICH THE GIFTS WERE MADE WERE NOT FILED, BUT RETURNS OF INCO ME OF AN EARLIER ASSESSMENT YEAR 2001-02 WERE FILED. IN THESE RET URNS, BOTH THE DONORS HAD SHOWN MINIMAL INCOME AND PAID VERY SMALL AMOUNTS AS TAX. THEREFORE, LD. COMMISSIONER OF INCOME TAX (A ) ASKED THE ASSESSEE TO PRODUCE THESE DONORS AS A WITNESS TO PR OVE THAT THESE GIFTS WERE GENUINE. HOWEVER, ASSESSEE FAILED TO DO SO. LD. COMMISSIONER OF INCOME TAX (A) FURTHER NOTED THAT RELATIONSHIP OF THE DONORS WAS ALSO NOT PROVED EXCEPT FOR THE CLAIM MADE IN THE MEMORANDUM OF THE GIFT THAT THESE GIFTS WERE MADE OUT OF NATURAL LOVE AND AFFECTION. THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE TO PROVE THE RELATIONSHIP BETWEEN THE ASSESSEE AND THE DONO RS AND HOW NATURAL LOVE AND AFFECTION EXISTED BETWEEN TWO DONO RS AND THE ASSESSEE WHO ARE ACTUALLY STRANGERS. THE ASSESSE E ALSO FAILED TO PROVE THE OCCASION. IN ASSESSEES LETTER IT WAS M ENTIONED THAT THE I.T.A. NO. 1547/DEL/2012 4 OCCASION OF GIFTS WAS THE BIRTHDAY OF ASSESSEES WI FE. IN THIS REGARD, LD. COMMISSIONER OF INCOME TAX (A) OBSERVED THAT IT I S NOT CLEAR AS TO HOW THE ASSESSEES WIFE WILL HAVE TWO BIRTHDAYS IN A YEAR AS MR. NARENDER GUPTA GAVE THE GIFT IN JUNE, 2001 WHILE MR. VINODI LAL AGGARWAL GAVE THE GIFT IN NOVEMBER, 2001. ACCORDIN GLY, CONSIDERING THE ABOVE DISCUSSION, LD. COMMISSIONER OF INCOME TAX ( A) HELD THAT SINCE THE ASSESSEE WAS NOT ABLE TO PROVE THE OCCAS ION, RELATIONSHIP OR RECIPROCITY OF THE GIFTS DURING THE ASSESSMENT PROC EEDINGS OR DURING THE APPELLATE PROCEEDINGS INSPITE OF THE OPPORTUNI TIES PROVIDED, THE ADDITION MADE U/S. 68 OF THE I.T. ACT, 1961 OF GIF T OF ` 4 LACS WAS UPHELD. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPE AL BEFORE ME. 6. I HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF T HE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, IN MY CONSIDERED OPINION, THE MATTER CAN BE DISPOSED OF BY PERUSING THE RECORDS AND HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. I FIND THAT ASSESSEE IN THIS CASE HAS RECEIVED A GIFT OF ` 4 LACS FROM THE PERSONS WHO ARE NOT RELATED TO T HE ASSESSEE. THERE IS NO OCCASION FOR THE GIFT WHATSOEVER. THERE IS NO RECIPROCITY OF GIFTS BETWEEN THE DONORS AND THE ASSESSEE. UNDER THE CIRCUMSTANCES, THE RATIO FROM THE CASE LAW MENTIONED BY THE LD. COM MISSIONER OF INCOME TAX (A) IN THE CASE OF CLEARLY APPLIES TO TH E FACTS OF THE CASE. IN CASE OF RAJIV TONDON VS. ACIT 294 ITR 488 HONBLE JURISDICTIONAL HIGH I.T.A. NO. 1547/DEL/2012 5 COURT HAS HELD THAT IN A CASE WHERE TWO DONORS HA D ABSOLUTELY NO CONNECTION WITH THE ASSESSEE AND THEY MADE GIFTS TO THE ASSESSEE ONLY BECAUSE HE NEEDED MONEY TO BUY A HOUSE AND THEY WANTED TO HELP HIM. IT WAS HELD THAT THIS WAS NOT ONLY QUITE UNUSUAL BUT ALSO QUITE UNNATURAL. IT WAS INCREDIBLE THAT A COMPLETE STRANGER WOULD WANT TO GIFT LAKHS OF RUPEES TO A PERSON ONLY BECA USE THAT PERSON WANTED THE AMOUNT FOR PURCHASING A HOUSE. THE TAXI NG AUTHORITIES WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTA NCES, WHICH THEY DID, AND COME TO THE CONCLUSION THAT THE GIFTS COUL D NOT BE SAID TO BE GENUINE. THE REASON OFFERED BY THE ASSESSEE DID NOT APPEAR TO BE REASONABLE, MUCH LESS ACCEPTABLE. THEREFORE, THERE WAS NO ERROR IN THE VIEW TAKEN BY THE TRIBUNAL. 6.1 ACCORDINGLY, IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND PRECEDENT, I DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A), HENCE, I AFFIRM THE S AME. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/7/2012. SD/- [SHAMIM YAHYA] ACCOUNTANT MEMBER DATE: 30/7/2012 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES