Puneet Ahuja, New Delhi V. ITO, Rohtak

ITA 1774/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53303 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 17-11-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Assessee Lawyers: SAURAV ROHTAGI AR S
• Keywords: Gift; Additional evidence; Onus to prove
• Section: 234B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `F : NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.1774/DEL./2011 (ASSESSMENT YEAR : 2007-08) PUNEET AHUJA, VS. ITO, WARD 2, C/O RAJ KUMAR & ASSOCIATES, CA ROHTAK. 4453/7, ANSARI ROAD, DARYA GANJ, NEW DELHI. (PAN/GIR NO.AHNPA7996H) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI RAJ KUMAR & SAURAV ROHTAGI, AR S REVENUE BY : SMT. PRATIMA KAUSHIK, SR.DR ORDER PER R.P. TOLANI: JM THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 200 7-08. THE FOLLOWING GROUNDS ARE RAISED: 1. THAT UNDER THE FACTS AND CIRCUMSTANCES AND IN V IEW OF DOCUMENTS AND EXPLANATIONS FILED BEFORE THE CIT(A) UNDER RULE 46A , THE SOURCE OF DEPOSIT OF RS.16,47,500/- IN AXIS BANK OF THE ASSES SEE NEEDS TO BE ACCEPTED, CONSEQUENTIALLY THE ADDITION MADE AND SUS TAINED DESERVES TO BE DELETED IN LAW AS WELL AS ON MERITS. 2. THAT WITHOUT PREJUDICE, IN THE ABSENCE OF RAISIN G ANY QUERY FOR EXPLAINING THE SOURCE OF DEPOSIT OF RS.16,47,500/- IN AXIS BANK, T HE ASSESSING OFFICER WAS JUSTIFIED IN LAW AS WELL AS ON MERITS IN MAKING ADD ITION FOR THE SAME. 3. THAT WITHOUT PREJUDICE IN THE ABSENCE OF MANDATO RY SHOW CAUSE NOTICE AS AND IN THE MANNER PROVIDED U/S 144(A), THE ASSESSMENT F ARMED U/S 144 IS UNSUSTAINABLE IN LAW. 4. THAT WITHOUT PREJUDICE, WITHOUT ALLOWING PROPER AND REASONABLE OPPORTUNITY OF HEARING, ASSESSMENT FRAMED U/S 144 IS UNSUSTAINABLE IN LAW. 5. THAT NO INTEREST U/S 234A AND 234B SHOULD HAVE B EEN LEVIED. I.T.A. NO.1774/DEL./2011 (A.Y. : 2007-08) 2 2. THE BRIEF FACTS ARE THAT THE CASE OF THE ASSESSE E WAS PICKED UP FOR SCRUTINY ON THE BASIS OF CASS INFORMATION THAT ASSESSEE HAD DEPOSI TED AN AMOUNT OF RS.16,47,500/- IN THE AXIS BANK A/C. THE ASSESSMENT WAS FRAMED EX-PA RTE DUE TO REASON THAT THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS. ASSESSEE BEFORE CI T(A) CONTENDED THAT HE WAS EMPLOYED AT NOIDA AND THE NOTICES WERE ISSUED FROM ROHTAK AND THE MOTHERS ACCOUNT OUT OF WHICH THE AMOUNT WAS DEPOSITED WAS AT ROHTAK . THE ASSESSEE WAS NOT ABLE TO GET ALL THE BANK ACCOUNT STATEMENTS AS ASKED BY THE ASS ESSING OFFICER. DUE TO THESE CIRCUMSTANCES, THE EX-PARTE ASSESSMENT U/S 144 WAS MADE. THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE EX PLAINING THE DIFFICULTIES AND FILED NECESSARY BANK STATEMENTS. THE ADDITIONAL EVIDENCE WAS ADMITTED BY THE CIT(A). ACCORDINGLY, THE ASSESSING OFFICER WAS DIRECTED TO FILE A REMAND REPORT WHICH ALSO WAS DULY COMPLIED WITH BY THE ASSESSING OFFICER ON 6.12 .2010. 3. THE ASSESSEE EXPLAINED THE SOURCES OF THE DEP OSIT IN BANK ACCOUNT BY WAY OF GIFTED AMOUNT WITHDRAWN FROM MOTHERS ACCOUNT. THE ASSESSING OFFICER, HOWEVER, HAS OBJECTED TO THE ASSESSEES CLAIM ONLY ON ASSUMPTION S AND PRESUMPTIONS. THE AFFIDAVIT OF THE MOTHER CONFIRMING GIFTS AND WITHDRAWAL FROM HER BANK ACCOUNT WHICH IS THE SOURCE OF THE ASSESSEES FUND HAS BEEN HELD TO BE SELF-SERVIN G DOCUMENT. APART FROM THE BANK ACCOUNT, THE ASSESSEE SUPPORTED ITS CLAIM ON THE BA SIS OF RE-CONCILIATION OF CASH WITHDRAWN FROM MOTHERS ACCOUNT. THE ASSESSEES MO THER GOT A LOAN AGAINST PROPERTY OF RS.14,22,700/- WHICH WAS TRANSFERRED TO HER HDFC A/ C AND OUT OF THIS AMOUNT SHE MADE GIFTS ON VARIOUS DATES AND THE AMOUNTS WERE DEPOSI TED IN ASSESSEES ACCOUNT. THE SAID LOAN OF MOTHER WAS RECEIVED FROM ICICI BANK AGAIN ST HER PROPERTY AND NOT A HOUSING CONSTRUCTION LOAN AS CLAIMED BY THE DEPARTMENT. IN ANY CASE, IT IS CLEAR THAT THIS AMOUNT CAME FROM MOTHERS ACCOUNT FROM ICICI BANK AND SHE HAD THE CAPACITY. 4. LD. AUTHORISED REPRESENTATIVES FOR THE ASSESSEE NOW MAKES THE FOLLOWING PROPOSITIONS: (I) THAT THERE IS NO BAN ON ANY GIFTS BEING GIVEN B Y THE MOTHER TO HER SON AND THE GIFTS CAN BE GIVEN FROM FUNDS WHICH WERE RAISED BY HER BY LOAN. (II) THE ADVERSE INFERENCE DRAWN BY AUTHORITIES THA T THE CASH AMOUNT WAS WITHDRAWN FROM MOTHERS BANK ACCOUNT AND DEPOSITED IN ASSESSEES AXISS BANK ACCOUNT HAS NO BASIS AS THERE IS NO LAW WHICH PROHIBITS SUCH TRANSACTIONS. I.T.A. NO.1774/DEL./2011 (A.Y. : 2007-08) 3 (III) THE ASSESSEE WANTED TO BUY HOUSE, THEREFORE, THE GIFTS WERE GIVEN BY MOTHER WHICH WERE PAID BY ASSESSEE TO OMEX CONSTRU CTION LTD. IT IS BUT NATURAL THAT A MOTHER WOULD LIKE HER SON TO PURCHAS E A PROPERTY. IF SHE RECEIVES LOAN AGAINST HER PROPERTY AND GIFTS THE A MOUNT TO SON, THE SAME CANNOT BE DENIED ON THE BASIS OF ASSUMPTION WHICH H AS BEEN DONE BY ASSESSING OFFICER. (IV) THE AVAILABILITY OF CASH WITH MOTHER IS NOT IN DOUBT. THE ONLY ISSUES RAISED ARE WHY THE GIFTS ARE GIVEN BY WITHDRAWING C ASH. SUCH IFS AND BUTS HAVE NO BASIS WHEN THE TRANSACTIONS ARE CONFIRMED B Y MOTHER IN FAVOUR OF HER SON. 5. THE ASSESSEE HAS FILED COMPLETE DETAILS AND REC ONCILIATION OF DATES OF WITHDRAWAL FROM MOTHERS BANK ACCOUNT AND DEPOSIT IN HIS AXIS BANK ACCOUNT. THE ASSESSEE HAS FILED A SYNOPSIS ON THE BASIS OF MATERIAL FILED BEFORE TH E CIT(A) IN RESPECT OF THESE DEPOSITS AS UNDER : 13.06.2006 RS.4,95,000 02.09.2006 RS.1,00,000/- 05.09.2006 RS.4,42,500 15.01.2007 RS.6,00,000 RS.16,47,500 RELIANCE IS PLACED ON THE FOLLOWING JUDGMENTS: 1. CIT VS. SURESH KUMAR KAKKAR, 221 TAXATION 182 (D EL.). 2. CIT VS. KULWANT RAI 291 I.T.R. 36 (DEL.). 3. ITO VS. HARI SHANKAR, IN I.T.A. NO.4183/D/2010 D ATED 12.11.2010 OF ITAT, DELHI. 4. CIT VS. SHRI KAMAL KUMAR BHOLA IN I.T.A. NO.5781 OF 2010, BOMBAY HIGH COURT. 5. CIT VS. BHAWANI OIL MILLS (P) LTD. (2011) 49 DTR (RAJ.) 212. 6. CIT VS. SHIV PRAKASH AGARWAL, 306 I.T.R. 324 (DE L.) 6. LD.DR, ON THE OTHER HAND, CONTENDS AS UNDER: (A) THAT THERE IS CONFUSION ABOUT THE MONSTER HAVIN G RECEIVED THE LOAN FOR CONSTRUCTION OF A HOUSE WHEREAS ASSESSEES CLAI M IS TO THE EFFECT THAT THE LOAN WAS OBTAINED AGAINST PROPERTY. (B) THAT THERE WAS NOTHING WITH MOTHER TO WITHDRAW CASH FORM HER ACCOUNT AND GIVE TO HIS SON. THIS SHOULD BE DONE B Y BY WAY OF ISSUING CHEQUE AND NOT BY CASH WITHDRAWALS. (C) THAT THE MOTHERS AFFIDAVIT IS SELF-SERVING DOC UMENT. I.T.A. NO.1774/DEL./2011 (A.Y. : 2007-08) 4 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FOLLOWING FACTS HAVE EMERGED FROM THE RECORD: (I) THE FACT THAT THE MOTHER GOT A LOAN OF RS.14,22 ,700/- FROM ICICI BANK IS NOT DISPUTED WHETHER IT WAS AGAINST THE PROPERTY OR FOR CONSTRUCTION OF PROPERTY IS NOT VERY SIGNIFICANT SO LONG AS THE AMO UNT IS AVAILABLE WITH MOTHER. (II) THERE CAN BE NO OBJECTION TO MOTHER GIVING GIF TS TO HER SON. (III) THERE CAN BE NO ADVERSE INFERENCE DRAWN ON AC COUNT OF MOTHER WITHDRAWING CASH FROM HER ACCOUNT AND GIVING GIFT T O HER SON. THE WITHDRAWALS ARE SUPPORTED BY MOTHERS BANK ACCOUNT AND THE AFFIDAVIT CANNOT BE TERMED AS SELF-SERVING AS IT CORROBORATES THE FACTS MENTIONING BANK STATEMENTS AND GIVING THE CASH GIFT TO THE A SSESSEE. THEREFORE, THE AFFIDAVIT CANNOT BE BRUSHED AWAY AS SELF-SERVING. 8. THE CASH IN THE MOTHERS HAND IS APPARENT FROM R ECORD AND THE SAME CANNOT BE WISHED AWAY ON ASSUMPTION. ONCE, THE ASSESSEE HAS DISCHARGED HIS BURDEN, I.E., THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE D ONOR, IN OUR CONSIDERED VIEW, THE ASSESSEES BURDEN IS DISCHARGED. IN VIEW THEREOF, RESPECTFULLY FOLLOWING THE HONBLE DELHI HIGH COURT JUDGMENT IN THE CASE OF CIT VS. SU RESH KUMAR KAKKAR AND OTHER CITATIONS, REFERRED TO ABOVE, WE HOLD THAT THE ASSE SSEE HAS DISCHARGED HIS BURDEN OF PROOF. SINCE THERE IS NO FINDING EITHER IN THE ASSESSING O FFICERS REMAND REPORT OR CIT(A) OBSERVATIONS THAT THE AMOUNT AVAILABLE TO MOTHER WA S UTILIZED ANYWHERE ELSE, AVAILABILITY OF FUNDS IN THE MOTHERS HAND CANNOT BE QUESTIONED. THE ASSESSEE HAS PROPERLY RE- CONCILED THE WITHDRAWALS FROM MOTHERS ACCOUNT AND DEPOSIT IN HIS ACCOUNT. 9. IN VIEW OF THE OBSERVATIONS AS MADE ABOVE, WE S EE NO BASIS THAT THE IMPUGNED ADDITION IS JUSTIFIED IN THE HANDS OF THE ASSESSEE WHICH IS DELETED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 09.12.2011. SD/- SD/- (K.D. RANJAN) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, DEC. 09, 2011. SKB I.T.A. NO.1774/DEL./2011 (A.Y. : 2007-08) 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), ROHTAK. 5.CIT(ITAT), NEW DELHI. AR/ITAT