Varsha V Jadhav, Bangalore V. Asst. CIT, Bangalore

ITA 1611/BANG/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0009 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 17-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SHREEHARI KUTSA
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO. 1611/BANG/2014 ASSESSMENT YEAR : 2004 - 05 SMT. VARSHA V. JADHAV NO.126/1, ADARSH PALM MEADOWS, WHITE FIELD ROAD, BENGALURU 560 066. PAN: ACPPJ 8430J VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 7(1), BANGALORE. APP ELL ANT RESPONDENT A PP EL LANT BY : SHRI SHREEH ARI KUTSA, CA RE SPONDENT BY : SMT. PADMAMEENAKSHI , JT.CIT(DR)(ITA T), BENGALURU. DATE OF HEARING : 16.07 .201 8 DATE OF PRONOUNCEMENT : 14 . 0 9 .201 8 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER DATED 26.09.2014 OF THE CIT(APPEALS), LTU, BANGALORE RELA TING TO ASSESSMENT YEAR 2004-05. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE G ROUNDS OF APPEAL IS WITH REGARD TO ADDITION OF RS.13 LAKHS BEING GIFTS RECEIVED BY THE ASSESSEE FROM ONE SHRI BELLIAPPA AS UNEXPLAINED U/S. 68 OF T HE ACT. THE OTHER ISSUE WITH REGARD TO NOT ALLOWING BROKERAGE EXPENSES WHIL E COMPUTING CAPITAL GAIN WAS NOT PRESSED. ITA NO. 1611/BANG/2014 PAGE 2 OF 4 3. AS FAR AS GIFTS RECEIVED BY THE FROM SHRI BELLIA PPA IS CONCERNED, THE FACTS ARE THAT THE AO IN THE COURSE OF THE ASSESSME NT PROCEEDINGS ON NOTICING THE FACT THAT RECEIPT OF GIFT OF RS.13 LAK HS FROM MR. N. BELLIAPPA WAS SHOWN BY THE ASSESSEE, CALLED UPON THE ASSESSEE TO FURNISH THE CONFIRMATION FROM THE DONOR. THE ASSESSEE FILED A PHOTOCOPY OF DECLARATION OF GIFT BY SHRI BELLIAPPA AND ALSO A NOTARIZED AFFI DAVIT OF SHRI BELLIAPPA. THE AO, ON EXAMINATION OF DECLARATION OF GIFT, NOTICED THAT THE RECITALS THEREIN SHOWED THAT A SUM OF RS.13 LAKHS WAS GIVEN BY SHRI BELLIAPPA TO ASSESSEE IN CONSIDERATION FOR THE HELP EXTENDED BY THE ASSES SEE TO THE DONOR. THE AO ALSO NOTICED THAT DONOR WAS NOT ASSESSED TO TAX. THE ASSESSEE ALSO FAILED TO PRODUCE THE DONOR BEFORE HIM FOR EXAMINAT ION. THE AO ALSO MADE ENQUIRIES FROM STANDARD CHARTERED BANK, M.G. ROAD B RANCH, FROM WHICH THE CHEQUE OF RS.13 LAKHS WAS ISSUED IN FAVOUR OF A SSESSEE BY THE DONOR. ON SUCH ENQUIRY, THE AO WAS INFORMED THAT THERE WAS NO SUCH ACCOUNT IN THE NAME OF MR. N. BELLIAPPA. IN THESE CIRCUMSTANC ES, THE AO CAME TO THE CONCLUSION THAT THE RECEIPT OF GIFT OF RS.13 LAKHS BY THE ASSESSEE WAS NOT SATISFACTORILY EXPLAINED AND HE MADE AN ADDITION OF THE AFORESAID SUM TO THE TOTAL INCOME OF THE ASSESSEE U/S. 68 OF THE INC OME-TAX ACT, 1961 [THE ACT]. 4. ON APPEAL BY THE ASSESSEE, THE CIT(APPEALS) CONF IRMED THE ORDER OF AO. BEFORE THE CIT(APPEALS), THE ASSESSEE FILED CO PY OF BANK STATEMENT OF MR. N. BELLIAPPA WITH STANDARD CHARTERED BANK, RAJA JI SALAI, CHENNAI WHICH WAS THE BRANCH FROM WHICH THE CHEQUE OF RS.13 LAKHS WAS ISSUED BY MR. BELLIAPPA. THE ASSESSEE SUBMITTED BEFORE THE C IT(APPEALS) THAT THE AO HAS APPROACHED A WRONG BRANCH OF STANDARD CHARTE RED BANK. THE CIT(APPEALS), ON A CONSIDERATION OF THE AFORESAID S UBMISSION WAS OF THE VIEW THAT THE ACTION OF THE AO IN MAKING THE IMPUGN ED ADDITION WAS CORRECT. THE CIT(A) FIRST NOTICED THAT THE ASSESSEE DID NOT FILE THE ORIGINAL GIFT DEED OR AFFIDAVIT OF DECLARATION OF GIFT OR CONFIRMATION FROM THE DONOR. HE DID NOT ITA NO. 1611/BANG/2014 PAGE 3 OF 4 ALSO PRODUCE THE DONOR FOR EXAMINATION. THE INCOME -TAX PARTICULARS OF THE DONOR WERE ALSO NOT FURNISHED. ON EXAMINATION OF T HE BANK STATEMENT FURNISHED BY THE ASSESSEE BEFORE THE CIT(A), THE CI T(A) FOUND THAT THE CHEQUE FOR RS.13 LAKHS DATED 16.03.2004 THROUGH WHI CH GIFT WAS GIVEN TO THE ASSESSEE WAS PRECEDED BY A DEPOSIT IN THE VERY SAME BANK ACCOUNT TO THE EXTENT OF RS.23 LAKHS. THE DONOR HAD ONLY A S UM OF RS.66,347 AFTER EXCLUDING THE DEPOSIT INTO THE SAID BANK ACCOUNT. T HE ASSESSEE ALSO DID NOT EXPLAIN THE SOURCE OF DEPOSIT OF RS.23 LAKHS BY SHRI BELLIAPPA INTO HIS ACCOUNT. IN THESE CIRCUMSTANCES, THE CIT(APPEALS) UPHELD THE ORDER OF AO. AGGRIEVED, THE ASSESSEE HAS FILED THE PRESENT APPEA L BEFORE THE TRIBUNAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON THE BASIS OF BANK STATEMENT OF MR. BELLIAPPA, THE CREDITWORTHINESS OF MR. BELLIAPPA STANDS ESTABLISHED. IT WAS ALSO SUBMITTED THAT THE ABSENC E OF ORIGINAL DECLARATION OF GIFT AND AFFIDAVIT CONFIRMING THE GIFT SHOULD NO T BE VIEWED AS AN ADVERSE CIRCUMSTANCE AGAINST THE ASSESSEE. IT WAS ALSO SUB MITTED THAT THE ASSESSEE WAS UNABLE TO TRACE THE DONOR AND IN THE C IRCUMSTANCES THE GIFT SHOULD BE ACCEPTED AS GENUINE. 6. THE LD. DR RELIED ON THE ORDER OF THE CIT(APPEAL S). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN OUR VIEW, IN THE ABSENCE OF FILING THE ORIGINAL DECLARATION OF GIFT AS WELL AS AFFIDAVIT CONFIRMING THE GIFT, THE ASSESSEE HAS NOT DISCHARGE D HIS PRIMARY ONUS OF PROVING THE RECEIPT OF MONEY BY WAY OF GIFT U/S 68 OF THE ACT. THE ONUS IS ON THE ASSESSEE TO ESTABLISH THE IDENTITY OF THE DO NOR, HIS CAPACITY TO MAKE THE GIFT AND GENUINENESS OF THE TRANSACTION. THE A SSESSEE HAVING FAILED TO DISCHARGE THIS INITIAL ONUS THAT LAY ON HIM, CANNOT SEEK TO RELY ONLY ON THE BANK STATEMENT OF THE DONOR BY SAYING THAT THE GIFT S WERE RECEIVED THROUGH BANKING CHANNELS. THE ASSESSEE HAS ALSO FAILED TO PRODUCE THE DONOR FOR EXAMINATION. IF THE DONOR WAS NOT CO-OPERATING, TH E ASSESSEE HAD AN ITA NO. 1611/BANG/2014 PAGE 4 OF 4 OPTION OF REQUESTING THE AO TO ISSUE SUMMONS FOR EX AMINATION OF THE DONOR BY THE AO AND BY MAKING AVAILABLE THE ADDRESS AND O THER PARTICULARS OF THE DONOR. ALTERNATIVELY, THE ASSESSEE COULD HAVE FURN ISHED THE INCOME-TAX PARTICULARS OF THE DONOR. THE ASSESSEE HAS MISERAB LY FAILED TO DISCHARGE THE ONUS THAT LAY ON HIM. IN THE GIVEN CIRCUMSTANC ES, WE ARE OF THE VIEW THAT THE ADDITION MADE BY THE AO AND SUSTAINED BY T HE CIT(APPEALS) DESERVES TO BE CONFIRMED. 8. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF SEPTEMBER, 2018. SD/- SD/- ( INTURI RAMA RAO ) ( N.V. VASUDEVAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 14 TH SEPTEMBER, 2018. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.