Manish Shripal Shah, Surat V. The Income tax Officer-Ward-3(3), Surat

ITA 1654/AHD/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67927 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 18-09-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 20-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P L KUREEL
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMADABAD , , , , BEFORE SHRI G.C.GUPTA , VICE PRESIDENT AND .., ! SHRI T.R. MEENA, ACCOUNTANT MEMBER '#.. , $% & $ ! ' $ ! ' $ ! ' $ ! ' ITA NO. 1654/AHD/2009 ASSESSMENT YEAR :2005-06 MANISH SHRIPAL SHAH, 803, SHIVANJALI TOWER, HOTEL CENTRE COURT LANE, ATHWALINES, SURAT. V/S . INCOME TAX OFFICER, WARD 3(3), SURAT. PAN NO. ACQPS9794P (APPELLANT) .. (RESPONDENT) () * + $ BY APPELLANT SHRI P. L. KUREEL, SR. D.R. ,-() * + $ /BY RESPONDENT SHRI MEHUL SHAH, A.R. . * /#% /DATE OF HEARING 18.09.2013 012 * / #% /DATE OF PRONOUNCEMENT 13.11.2013 O R D E R PER : SHRI T.R.MEENA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE CIT(A)-II, SURAT, ORDER DATED 27.02.2009 FOR A.Y. 2005-06. TH E EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.76,75,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED GI FTS U/S 68 OF THE ACT. ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.50,400/- ON ACCOUNT OF ALLEGED UNEXPLAINED GIFTS U/S. 68 OF THE ACT. 2. THE A.O. OBSERVED AS UNDER: THE ASSESSEE HAD SHOWN THE RECEIPT OF GIFTS TOTALIN G RS.76.50 LAKHS DURING THE YEAR, FROM THE FOLLOWING PERSONS: SR. NO. DONOR AMOUNT (RS.) 1 SHILPABEN M SHAH 1,00,000 2 KANCHANBEN M SHAH 1,50,000 3 SACHIN S JAIN 3 ,00,000 4 SURESHCHAND JAIN 13,00,000 5 ABHISHEK S JAIN 4,00,000 6 MANUBHAI BABALDAS SHAH 1,50,000 7 MANISH MANUBHAI SHAH 1,50,000 8 KANTIBHAI P. PATEL 25,00,000 9 RAMESHCHANDRA C SHAH 20,50,000 10 VIJAY SINGHVI 5,00,000 11 MANUBHAI B SHAH (HUF) 50,000 TOTAL 76,50,000 THE AO ASKED THE ASSESSEE TO FURNISH RELEVANT DOCUM ENTARY EVIDENCES IN SUPPORT OF SUCH GIFTS, INCLUDING COPIE S OF RETURNS OF INCOME, OF BANK PASSBOOKS, BALANCE-SHEETS, P &. L A CCOUNTS AND OTHER DETAILS PERTAINING TO THE ALLEGED DONORS (PAR A-4 OF THE ASST. ORDER.). APPARENTLY, THE ASSESSEE FAILED TO FURNISH ANY DETAIL. THE AO THEN ISSUED A SHOW-CAUSE NOTICE, WHEREIN THE AO ASK ED THE ASSESSEE TO FURNISH SUCH DETAILS/EVIDENCES (PARA-4. 1). THE ASSESSEE APPARENTLY FURNISHED ONLY COPIES OF GIFT D EEDS FROM THE ALLEGED DONORS AND BANK STATEMENTS OF SOME OF THEM. THE AO THEREAFTER DISCUSSED THE DETAILED FACTS OF THE CASE OF EACH DONOR (PARA-4.3) AND GAVE HIS FINDINGS AS UNDER:- ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 3 4.1 IN RESPECT OF THE GIFTS RECEIVED FROM SMT. SHILPABEN M. SHAH (RS.1 LAKH), SMT. KANCHANBEN M. SHAH (RS.L.5 LAKH) THE ASSESSEE HAD FURNISHED ONLY THE COPY OF THE GIFT DEED AND CO PIES OF THE ACKNOWLEDGMENTS OF RETURNS INCOME FILED BY THEM, WH ICH SHOWED THAT THEY HAD DECLARED TOTAL INCOMES OF ONLY RS.95, 249 AND RS.89,880 RESPECTIVELY. IN THE CASES OF SHRI SACHIN S. JAIN (RS.3 LAKHS), SHRI SURESHCHAND JAIN (RS.13 LAKHS) AND SHRI ABHISHEK JAIN (RS.4 LAKHS), APART FROM COPIES OF THE GIFT DEEDS A ND ACKNOWLEDGMENTS OF RETURNS OF INCOME, COPIES OF THE IR BANK ACCOUNTS WERE ALSO FURNISHED. A SCRUTINY OF THEIR B ANK STATEMENTS SHOWED THAT CASH OF EQUIVALENT AMOUNTS HAD BEEN DEP OSITED JUST A DAY BEFORE THE GIFT CHEQUES WERE ISSUED TO THE ASSE SSEE. WITH REGARD TO THE ALLEGED GIFTS FROM SHRI MANUBHAI B. SHAH (RS.1.5 LAKHS), MANISH M. SHAH (RS.1.5 LAKHS), SHRI KANTIBHAI PATEL (RS.25 LAKHS), SHRI RAMESHCHANDRA C. SHAH (RS.20.50 LAKHS), SHRI VIJAY SANGHVI (RS. 5 LAKHS) AND SHRI MANUBHAI B. SHAH -HUF (RS.50,000), THE AO NOTED THAT APART FROM THE GIFT DEEDS, NO OTHER EVIDENCE WHATSOEVER WAS FURNISHED BY THE ASSESSEE. 4.2 ON THE BASIS OF SUCH FINDINGS, THE AO CAME TO THE CONCLUSION THAT ALL THE GIFTS TOTALLING RS.76.50 LAKHS WERE AB SOLUTELY BOGUS. EVEN THOUGH THE ASSESSEE WAS PROVIDED SUFFICIENT OPPORTU NITY TO PRODUCE THE ALLEGED DONORS, HE WAS UNABLE TO DO SO. THE AQ THEREFORE TREATED THE GIFTS TOTALLING RS.76.50 LAKHS AS UNEXP LAINED IN TERMS OF SEC.68 OF THE IT ACT, AND ADDED THE SAME TO THE ASS ESSEE'S TOTAL INCOME. 3. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO HAD DECIDED THE CASE B Y CONSIDERING THE ASSESSEES REPLY, FACTS OF THE CASE OF INDIVIDUAL D ONOR, CASE LAWS CITED BY THE APPELLANT AND INQUIRIES MADE DURING THE COURSE OF A PPELLANT PROCEEDING. THE ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 4 LD. CIT(A) HAS CONSIDERED THE CASE LAWS CITED BY TH E ASSESSEE PARTICULARLY CIT VS. PADAM SINGH CHAUHAN (2008) 3 DTR 190 (RAJASTHAN HIGH COURT), (II) ITO VS. DHARM VIR TULI 81 TTJ 1028 (CHD.) (III) NARIND ER KUMAR SEKHRI VS. ACIT 81 TTJ 1036 (ASR.), (IV) ACIT VS. MANOJ KUMAR SEKHR I 86 TTJ 510. THE LD. CIT(A) ISSUED NOTICE U/S. 131 TO ALL THE DONORS OUT OF THE 11 DONORS ONLY 6 DONORS WERE APPEARED. THE STATEMENTS WERE RECORDED U/S. 131, WHICH WAS FORWARDED TO THE A.R. FOR HIS COMMENT BY THE CIT(A) , WHICH WAS REPLIED BY THE ASSESSEE. FOR GIFT OF RS.20.5 LACS FROM SHRI RAMES HCHANDRA C. SHAH, SURAT THE ASSESSEE EXPLAINED THE SOURCE OF GIFT BEFORE TH E CIT(A) AS PER THE BALANCE SHEET AS ON 31.03.1999 FOR WHICH NO INCOME TAX RETU RN WAS FILED BY THE DONORS. IN CASE OF MANISH M. SHAH FOR RS. 1.5 LACS , THE DONOR MADE CONTRADICTORY STATEMENT BEFORE THE CIT(A). SHRI MA NUBHAI SHAH GIFT FOR RS.1.5 LACS, HE GAVE THE STATEMENT U/S. 131 OF THE IT ACT, THE GIFT WAS ALSO NOT FOUND GENUINE BY THE CIT(A). THE ASSESSEE IS NOT ABLE TO PRODUCE SHRI KANITLAL PATEL, SHRI SURESH JAIN, SHRI SACHIN JAIN, SHRI AB HISHEK JAIN &, SHRI VIJAY SANGHVI FOR VERIFICATION BEFORE THE CIT(A). HE FUR THER HELD THAT CASE LAWS REFERRED BY THE ASSESSEE IN CASE OF CIT VS. PADAM S INGH CHAUHAN (SUPRA), (II) ITO VS. DHARM VIR TULI (SUPRA) (III) NARINDER KUMAR SEKHRI VS. ACIT (SUPRA), (IV) ACIT VS. MANOJ KUMAR SEKHRI (SUPRA), THE PROPOSITION ON ASSESSEES CASE ARE NOT SQUARELY APPLICABLE. THE L D. CIT(A) RELIED UPON IN CASE OF HONBLE SUPREME COURT DECISION IN CASE OF C IT VS. MOHANKALA (2007) 291 ITR 278, WHEREIN HONBLE SUPREME COURT HAS HELD THAT: ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 5 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS O F AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESS ING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR . THE QUESTION IS WHAT IS THE TRUE NATURE AND SCOPE OF SECTION 68 OF THE ACT? WHEN AND IN WHAT CIRCUMSTANCES SECTION 68 OF THE ACT WOU LD COME INTO PLAY? THAT A BARE READING OF SECTION 68 SUGGESTS TH AT THERE HAS TO BE CREDIT OF AMOUNTS IN THE BOOKS MAINTAINED BY AN ASSESSEES; SUCH CREDIT HAS TO BE OF A SUM DURING THE PREVIOUS YEAR; AND THE ASSESSEES OFFER NO EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH CREDIT FOUND IN THE BOOKS; OR THE EXPLANATION OFFER ED BY THE ASSESSEES IN THE OPINION OF THE ASSESSING OFFICER I S NOT SATISFACTORY, IT IS ONLY THEN THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEES OF THAT PREVIOUS YEAR. THE EXPRESSION 'THE ASSESSEES OFFER NO EXPLANATION' MEANS WHERE TH E ASSESSEES OFFER NO PROPER, REASONABLE AND ACCEPTABLE EXPLANAT ION AS REGARDS THE SUMS FOUND CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEES. IT IS TRUE THE OPINION OF THE ASSESSING OFFICER FOR NOT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEES AS NOT SATISFA CTORY IS REQUIRED TO BE BASED ON PROPER APPRECIATION OF MATERIAL AND OTHER ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD. THE OPINION OF T HE ASSESSING OFFICER IS REQUIRED TO BE FORMED OBJECTIVELY WITH R EFERENCE TO THE MATERIAL AVAILABLE ON RECORD. APPLICATION OF MIND I S THE SINE QUA NON FOR FORMING THE OPINION. HE FURTHER RELIED UPON IN CASE OF HONBLE DELHI HIG H COURT DECISION IN CASE OF RAJEEV TANDON VS. ACIT (2007) 294 ITR 488 (DEL.), W HEREIN P. MOHAN KALA DECISION HAD BEEN REFERRED BY THE HONBLE DELHI HIG H COURT AND DELIVERED ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 6 IDENTICAL DECISION BY FOLLOWING THE HONBLE SUPREME COURT DECISION IN CASE OF P. MOHANKALA (SUPRA) IN FAVOUR OF REVENUE. THE LD . CIT(A) EXAMINED ALL THE DONORS IN THE BACKGROUND OF THE PROPOSITION OF HON BLE SUPREME COURT AND DELHI HIGH COURT ON FOLLOWING ASPECTS: I. WHETHER SHRI MANISH M SHAH HAD ANY NATURAL LOVE AND AFFECTION FOR ASSESSEE TO GIVE THE GIFT OF RS. 1,50,000? II. WHETHER SHRI MANISH M SHAH HAD GENUINELY GIVEN THE GIFT OF RS.1,50,000/- OR HE WAS JUST A FACILITATOR IN A MAK E-BELIEVE ARRANGEMENT? III. WHETHER SHRI MANUBHAI B SHAH AND HIS FAMILY ME MBERS (WIFE, DAUGHTER & HUF) HAD THE CREDITWORTHINESS TO GIVE A TOTAL GIF T OF RS.4,50,000/-? IV. WHETHER SHRI MANUBHAI B SHAH AND HIS FAMILY MEM BERS HAD ANY NATURAL LOVE AND AFFECTION FOR ASSESSEE TO GIVE THE GIFT OF RS.4,50,000/-? V. WHETHER SHRI MANUBHAI B SHAH AND HIS FAMILY MEMB ERS HAD GENUINELY GIVEN THE GIFT OF RS.4,50,000/- OR THEY WERE JUST F ACILITATOR IN A MAKE-BELIEVE ARRANGEMENT? VI. WHETHER SHRI RAMESHCHANDRA C SHAH HAD THE CREDI TWORTHINESS TO GIVE A GIFT OF RS.20,50,000/-? VII. WHETHER SHRI RAMESH C SHAH HAD ANY NATURAL LOV E AND AFFECTION FOR THE ASSESSEE TO GIVE THE GIFT OF RS.20,50,000? VIII. WHETHER SHRI RAMESHCHANDRA C SHAH HAD GENUINE LY GIVEN THE GIFT OF RS.20,50,000/- OR HE WAS JUST A FACILITATOR IN A MA KE-BELIEVE ARRANGEMENT? IX. WHETHER THE JAIN FAMILY MEMBERS HAD THE CREDITW ORTHINESS TO GIVE A TOTAL GIFT OF RS.20,00,000? ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 7 X. WHETHER THE JAIN FAMILY HAD GENUINELY GIVEN THE GIFT OF RS.20,00,000/- OR THEY WERE JUST FACILITATORS IN A MAKE-BELIEVE AR RANGEMENT? FINALLY HE HAS HELD AS UNDER: 7.14. IF THE FACTS OF THE ASSESSEE'S CASE ARE EXAM INED AGAINST THE VIEWS EXPRESSED BY THE HON'BLE SUPREME COURT AND TH E DELHI HIGH COURT IN THE CASES DISCUSSED EARLIER IN THIS ORDER, IT WILL BE SEEN THAT FIRSTLY, AND THIS IS MORE IMPORTANT, THERE WAS ABSO LUTELY NO LOVE AND AFFECTION OR ANY RELATIONSHIP WHATSOEVER BETWEEN TH E ALLEGED DONORS AND THE ASSESSEE. AS HELD BY THE HON'BLE SUPREME CO URT AND ALSO THE DELHI HIGH COURT, SUCH TRANSACTIONS ARE '...... ...NOT ONLY QUITE UNUSUAL BUT ALSO QUITE UNNATURAL. IT SOUNDS RAT HER INCREDIBLE THAT A COMPLETE STRANGER WOULD WANT TO GIFT LAKHS OF RUPEE S TO A PERSON ONLY BECAUSE THAT PERSON WANTED THE AMOUNT FOR PURCHASIN G A HOUSE. THE TAXING AUTHORITIES WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES, WHICH THEY DID, AND CAME TO THE CONCLUSION THAT THE GIFTS COULD NOT BE SAID TO BE G ENUINE'. [RAJEEV TANDON VS. ACIT 294 ITR 488 (DEL.)]. IN THE CASE OF OUR ASSESSEE, THE PURPOSE OF TAKING THE GIFT WAS THE ASSESSEE'S F ATHER-IN-LAW'S DIAMOND BUSINESS. THE AMOUNTS WERE ASKED FOR BY SHR I SHRIPAL SHAH, IN FACT HIS SON HAD EVEN GONE TO THE HOUSE OF CHANDRAVADAN I. PAREKH TO GET THE CHEQUE. SIMPLE FURNISHING OF THE DECLARATION OF THE DONOR OR HIS MAINTAINING BOOKS AND FILING TH E RETURN OF INCOME DOES NOT JUSTIFY A GIFT. A GIFT HAS A DIFFER ENT MEANING FROM A LOAN OR AN ADVANCE. IT INVOLVES AND ENTAILS EMOTIONS AND FEELINGS OF LOVE AND AFFECTION, OF CONCERN AND CARE ; IT IS NOT ONLY A MONETARY AND FINANCIAL TRANSACTION. THEREFORE, AP ART FROM THE DOCUMENTARY EVIDENCE OF ENTRIES PASSED, IT HAS NECE SSARILY TO BE SHOWN THAT THERE WAS A REASON BEHIND GIVING THE GIFT. THERE HAS TO BE A RELATIONSHIP BETWEEN THE ASSESSEE AND T HE DONOR. NONE OF THIS HAS BEEN ESTABLISHED. NOT EVEN AN ATTE MPT HAS ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 8 BEEN MADE. IT MAY BE WORTHWHILE FOR A PPELLATE AUTHORITIES TO CONSIDER, WHILE TAKING A VIEW IN SUC H CASES, WHETHER THEY HAVE RECEIVED OR COULD EVEN EXPECT TO RECEIVE GIFTS OF SUCH SUBSTANTIAL SUMS EVEN FROM THE CLOSET OF RELATIVES, NOT TO SPEAK OF RELATIVELY UNKNOWN PERSONS. THE ANS WER THEY GIVE TO THEMSELVES SHOULD BE THE ANSWER TO THE CLAI M OF THE GENUINENESS OF GIFTS IN APPEAL. SIMPLY RELYING ON CERTAIN CASE- LAWS IS NOT SUFFICIENT. IT MAY NOT BE OUT OF PLACE TO A MENTION THAT BOTH IN THE CASE OF P. MOHANAKALA (SUPRA) AND IN TH E CASE OF RAJEEV TANDON (SUPRA), THE DONORS WERE NRIS. THIS IS IMPOR TANT BECAUSE, IN MOST OF THE CASES, GIFTS FROM NRIS ARE HELD TO BE A BOVE BOARD AND SACROSANCT, ESPECIALLY WHEN THEY ARE RECEIVED THROU GH BANKING CHANNELS. IT IS PERHAPS FOR THIS REASON THAT THE HO N'BLE SUPREME COURT HAS OBSERVED IN THE CASE OF P. MOHANAKALA THA T, THE FACT THAT THE MONEY HAD COME THROUGH BANKING CHANNELS WAS OF NO CONSEQUENCE, (PARA-21 OF THE ORDER). 7.15 SECONDLY, THE ASSESSEE AND THE AR HAVE SIMPLY BEEN UNABLE TO REBUT THE INFERENCE DRAWN BY THE AO AS ALSO IN A PPELLATE PROCEEDINGS, THIS NECESSARILY HAD TO BE DONE AS HEL D BY THE HON'BLE SUPREME COURT. SINCE THE ASSESSEE HAS FAILED TO REB UT THE EVIDENCE THAT HAS BEEN GATHERED BOTH BY THE AO AS ALSO IN AP PELLATE PROCEEDINGS THOUGH THE STATEMENTS OF THE TWO ALLEGE D DONORS, IT CAN SAFELY BE CONCLUDED THAT THE GIFTS TOTALLING RS.76. 50 LAKHS REPRESENTED THE INCOME OF THE ASSESSEE. THE SURROUN DING FACTS AND CIRCUMSTANCES CLEARLY ALLOW FOR SUCH AN INFERENCE T O BE DRAWN. 7.16 GIVEN SUCH FACTS AND CIRCUMSTANCES OF THE CAS E WHICH HAVE BEEN EXAMINED IN DETAIL IN THE BACKDROP OF THE PRON OUNCEMENTS OF THE HON'BLE SUPREME COURT AND THE DELHI HIGH COURT, IN THE CASES OF P. MOHANAKALA AND RAJEEV TANDON, I HAVE ABSOLUTELY NO HESITATION ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 9 IN HOLDING THAT THE GIFTS TOTALLING RS.76.50 LAKHS SHOWN BY THE ASSESSEE, WERE ABSOLUTELY BOGUS. CONSEQUENTLY, THE ADDITION OF THE SAID SUM UNDER THE PROVISIONS OF SEC. 68 WILL STAND CONFIRMED. 4. NOW THE ASSESSEE IS BEFORE US. LD. COUNSEL FOR THE APPELLANT FILED PAPER BOOK AND ENCLOSED COPY OF REPLY FILED BEFORE THE CIT(A), COPY OF BANK ACCOUNT IN CASE OF MANISHBHAI, COPY OF ACKNOWLEDGEM ENT OF RETURN OF INCOME, P&L ACCOUNT AND BALANCE SHEET, COPY OF CAPITAL ACCO UNT, COPY OF GIFT DEED IN CASE OF SHILPABEN, KANCHANBEN, SACHIN, SURESHCHAND, ABHISHEK, MANUBHAI & MANUBHAI HUF. COPY OF STATEMENT RECORDED U/S. 131 , COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME, COPY OF P&L AC COUNT, BALANCE SHEET ACCOUNT, COPY OF BANK STATEMENT IN CASE OF MANUBHAI AND MANISHBHAI WERE FILED. IN CASE OF KANTIBHAI P. PATEL COPY OF PAY O RDER, DECLARATION OF GIFT, PASSPORT AND BANK STATEMENT WERE ENCLOSED IN THE PA PER BOOK. IN CASE OF VIJAY SINGHVI ONLY COPY OF DECLARATION OF GIFT DEED IS FILED. THE LD. A.R. ARGUED THAT THE ASSESSEE HAD PROVED, PRIMA FACIE, HIS CASE AND ONUS HAS BEEN SHIFTED ON REVENUE TO PROVE THAT THE GIFT OF AMOUNT BELONGED TO THE ASSESSEE AND ALSO REQUESTED THAT WHATEVER EVIDENCE FILED BY THE ASSESSEE BEFORE THE CIT(A) HAS NOT BEEN CONSIDERED FULLY. THUS, HE REQ UESTED TO SEND BACK THE CASE TO THE CIT(A) FOR READJUDICATION, IN THE INTER EST OF JUSTICE. AT THE OUTSET, LD. SR. D.R. VEHEMENTLY RELIED UPON THE ORDER OF TH E CIT(A) AND ARGUED THAT EACH DONORS ON ALL ASPECT HAD BEEN EXAMINED BY THE CIT(A). HE HAD MADE INQUIRY ALSO AND ALSO ISSUED SUMMONS TO THESE DONOR S BUT SOME WERE PRESENTED BEFORE HIM, SOME HAD NOT BEEN RESPONDED I N RESPONSE TO NOTICE ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 10 ISSUED U/S. 131. WHATEVER EVIDENCE FILED BY THE AS SESSEE HAD BEEN CONSIDERED BY THE LD. CIT(A) WHO HAS DEALT ALL THE ASPECTS BY DELIVERING A LENGTHY DECISION IN PAGE NO.46 AND DECIDED THE CASE AGAINST THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IT IS TRUE THAT LD. CIT(A) HAD GIVEN DETAI LED FINDINGS WITH REFERENCE TO EACH DONOR, GENUINENESS OF THE TRANSACTION, CREDITW ORTHINESS OF THE TRANSACTION AND LOVE & AFFECTION WITH ASSESSEE. HE ALSO CONSIDERED VARIOUS CASE LAWS. HOWEVER, PAPER BOOK FILED BY A.R. BEFOR E US REQUIRED TO RE- EXAMINE IN THE INTEREST OF JUSTICE AND GIVE ONE MOR E CHANCE TO EXPLAIN THE GIFT. ACCORDINGLY, WE SET ASIDE THE CASE OF THE CIT(A) FO R DE NOVO. 6. THE SECOND GROUND OF APPEAL IS AGAINST CONFIRMIN G THE ADDITION OF RS.50,400/- ON ACCOUNT OF HOUSE PROPERTY INCOME. T HE LD. A.O. OBSERVED THAT ASSESSEE OWNED A FLAT IN GANGOTRI TOWERS, SURAT. H E ASKED THE ASSESSEE IN WRITING TO FURNISH THE RELEVANT DETAILS INCLUDING T HE ANNUAL LETTING VALUE (ALV) OF THE PROPERTY. THERE WAS NO REPLY FROM THE ASSES SEE. THEREFORE, HE GAVE SHOW CAUSE NOTICE ON THE BASIS OF ALV AT RS.72,000/ - FOR THE YEAR UNDER CONSIDERATION. THE ASSESSEE SUBMITTED BEFORE THE A .O. THAT THIS FLAT WAS GIVEN TO IS CONTRACTOR FOR DOING CUTTING AND POLISH ING OF DIAMONDS ON JOB-WORK BASIS. THE PROPERTY WAS THUS USED FOR THE BUSINESS PURPOSES. THE ASSESSEE WAS HAVING ONLY ONE CONTRACTOR, NAMELY, SHRI VALLAB HBHAI S. PATEL. THE ASSESSEE HAD NOT PROVIDED EITHER HIS POSTAL ADDRESS OR HIS PAN, TO ENABLE HIM TO ASCERTAIN THAT PROPERTY WAS USED FOR BUSINESS PU RPOSES. THUS, HE MADE ADDITION OF RS.72,000/-. BEFORE CIT(A), THE ASSESS EE DID NOT SUBMIT ANY REPLY ITA NO. 1654/AHD/2009 A.Y. 05-06 PAGE 11 ON THIS ISSUE. IT WAS HELD BY THE CIT(A) THAT THE ASSESSEE DID NOT WANT TO PURSUE THE MATTER IN APPEAL. THUS, HE CONFIRMED TH E ADDITION. LD. COUNSEL FOR THE APPELLANT SIMPLY ARGUED THAT THIS PREMISE WAS U SED BY THE LABOURERS OF ASSESSEE WHO COME FROM THE NEARBY AREA OF SURAT AND STAY IN CASE OF ANY EMERGENCY. THE LD. SR. D.R. ARGUED THAT THERE IS N O EVIDENCE WHETHER THIS FLAT WAS USED FOR BUSINESS PURPOSES. AFTER CONSIDERING BOTH THE SIDES, THE ASSESSEE HAD NOT PROVIDED ANY EVIDENCE FOR USING OF FLAT FOR BUSINESS PURPOSES EITHER BEFORE THE LOWER AUTHORITIES OR BEF ORE US. THUS, WE UPHOLD THE ORDER OF THE CIT(A). 6. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13.11.2013 SD/- SD/- (G.C.GUPTA) (T.R. MEENA) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY S.K.SINHA $3 $3 $3 $3 * ** * ,/4 ,/4 ,/4 ,/4 5$42/ 5$42/ 5$42/ 5$42/ / COPY OF ORDER FORWARDED TO:- 1. () / APPELLANT 2. ,-() / RESPONDENT 3. 99 / : / CONCERNED CIT 4. :- / CIT (A) 5. 4> ,/ , , / DR, ITAT, AHMEDABAD 6. @ AB / GUARD FILE. BY ORDER/ $3 $, / 9 , '