Smt. Kiran Devi Gehlot, SUMERPUR V. ITO, SUMERPUR

ITA 182/JODH/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54413 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-12-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 26-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R H GOHEL
• Keywords: Gift

Judgement Text

1 ITA 182-10 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 182/JODH/2010 ASSTT. YEAR : 2003-04. SMT. KIRAN DEVI GEHLOT, VS. THE INCOME-TAX OFFICE R, NEAR MAHAVEER COLONY, SUMERPUR. SUMERPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMIT KOTHARI RESPONDENT BY : SHRI R.H. GOHEL DATE OF HEARING : 09.12.2011. DATE OF PRONOUNCEMENT : 15.12.2011 ORDER DATED : 15/12/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2003-04. 2. THE ASSESSEE IS OBJECTING IN CONFIRMING THE ADDI TION OF RS. 4,01,000/- ON ACCOUNT OF GIFT RECEIVED BY ASSESSEE FROM HER REAL SISTER. 3. THIS IS THE SECOND ROUND BEFORE THE TRIBUNAL AS ON EARLIER OCCASION THE TRIBUNAL HAD DECIDED THE APPEAL IN ITA NO. 163/JU/2007 VIDE ORDER DATED 1.10.2008 REMANDED THE MATTER BACK TO THE ASSESSING OFFICER FOR GIVING TIM E TO PRODUCE THE DONOR BEFORE HIM AS ON EARLIER OCCASION THE ASSESSING OFFICER WAS NOT I NCLINED TO GRANT SUFFICIENT TIME FOR PRODUCTION OF DONOR BEFORE THE ASSESSING OFFICER. THESE OBSERVATIONS HAVE BEEN OBSERVED BY TRIBUNAL VIDE PARA 6 OF ITS ORDER. SINC E ASSESSEE COULD NOT PRODUCE THE DONOR 2 AGAIN BEFORE THE ASSESSING OFFICER, THE ASSESSING O FFICER MADE THE ADDITION OF GIFTED AMOUNT BY OBSERVING THAT ASSESSEE FAILED TO PRODUCE THE DONOR AND TO EXPLAIN SOURCE OF AMOUNT. BEFORE LD. CIT (A), THE DONOR WAS PRODUCED. HOWEVER, THE LD. CIT (A) AGAIN DISALLOWED THE CLAIM OF THE ASSESSEE BY OBSERVING T HAT SOURCE OF GIFT REMAINED UNEXPLAINED. 4. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 5. THE LD. COUNSEL OF THE ASSESSEE REITERATED HIS C ONTENTION RAISED BEFORE THE LOWER AUTHORITIES. 6. ON THE OTHER HAND, THE LD. D/R STRONGLY PLACED R ELIANCE ON THE ORDERS OF ASSESSING OFFICER AND LD. CIT (A). PORTION OF ORDER OF ASSES SING OFFICER WAS READ ALSO. 7. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT ASSESSEE SHOULD SUCCEED IN HER APPEAL ON THIS ISSUE. IT IS NOTICED THAT AFFIDAVIT OF THE DONOR WAS SUBMITTED DURING THE ASS ESSMENT PROCEEDINGS. DECLARATION OF GIFT IN RELATION TO GIFT RECEIVED FROM DONOR WAS AL SO SUBMITTED. HOWEVER, THE DONOR COULD NOT BE PRODUCED. THEREFORE, THE ASSESSING OFFICER M ADE THE ADDITION BUT LD. CIT (A) BEFORE WHOM THE DONOR WAS PRODUCED HAS ALSO CONFIRM ED THE ADDITION BY OBSERVING THAT DONOR COULD NOT EXPLAIN THE SOURCE OF GIFTED AMOUNT . IT IS SEEN THAT ABOUT RS. 1,50,000/- WAS WITHDRAWN FROM NRI ACCOUNT BY THE SISTER OF THE ASSESSEE WHO GIFTED THE AMOUNT OF RS. 4,01,000/- AND REMAINING AMOUNT WAS WITHDRAWN F ROM HER BANK ACCOUNT WHICH WAS RECEIVED ON ACCOUNT OF RENTED PROPERTY GIVEN BY HER . AFFIDAVIT TO THIS ASPECT WAS GIVEN AND THE CONTENT OF THE AFFIDAVIT WERE NOT FOUND INC ORRECT. THE DONOR HAS CATEGORICALLY ADMITTED IN HAVING GIFTED THE AMOUNT TO THE ASSESSE E. DECLARATION OF GIFT IS PLACED AT PAGE 12 OF PAPER BOOK. THE AMOUNT OF GIFT WAS GIVEN THR OUGH ACCOUNT PAYEE CHEQUE. THE 3 DONOR IS INDIAN CITIZEN WHO HAS BEEN EMPLOYED IN U. K SINCE 1987 AND SHE WAS IN INDIA FROM 1.2.2003 TO 8.03.2003 AND GIFT WAS GIVEN ON 28 .2.2003. IT MEANS THE DONOR WAS IN INDIA WHEN THE AMOUNT WAS GIFTED TO THE ASSESSEE. COPY OF PASSPORT WAS ALSO FILED BEFORE THE LOWER AUTHORITIES WHICH IS MENTIONED IN THE AFF IDAVIT. THEREFORE, IN OUR VIEW THE ASSESSEE HAS DISCHARGED ITS ONUS FOR PROVING THE GI FT AS GENUINE, AND DEPARTMENT SHOULD NOT HAVE DOUBTED THE SAME. THE SOURCE OF GIFT IS A LSO EXPLAINED IN THE AFFIDAVIT AND AS STATED ABOVE CONTENTS OF AFFIDAVIT WAS NOT FOUND FA LSE. VARIOUS CASE LAWS RELIED UPON BY LD. COUNSEL REPORTED IN 269 ITR 429 (DEL.), 280 ITR 512, 204 CTR 9, 47 ITD 58 ARE IN SUPPORT OF THE CASE OF THE ASSESSEE. IN VIEW OF TH E ABOVE FACTS AND CIRCUMSTANCES, WE DELETE THE ADDITION OF RS. 4,01,000/- MADE AND SUST AINED BY LOWER AUTHORITIES. 8. CHARGING OF INTEREST UNDER SECTION 234AB & D ARE CONSEQUENTIAL IN NATURE. THE ASSESSING OFFICER IS DIRECTED TO ALLOW CONSEQUENTIA L RELIEF TO THE ASSESSEE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 10. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 .12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- SMT. KIRAN DEVI GEHLOT, SUMERPUR. THE ITO, SUMERPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 182/JODH/2010) BY ORDER, AR ITAT JODHPUR. 4