Appeal Details
Counselvise Citation
[2009] 129 COUNSELVISE.COM (IT) 9913 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
3 year(s) 10 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
10-12-2009
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
C
Next Hearing Date
10-12-2009
Assessment Year
2002-2003
Appeal Filed On
24-01-2006
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER DATE OF HEARING 12.12.09: DRAFTED ON:11.12.200 9 ITA NO.198/AHD/2006 ASSESSMENT YEAR : 2002-2003 VATSALBHAI RAVJIBHAI VASANI 311 & 312, SHILP-II, NR.SALES INDIA, ASHRAM ROAD, AHMEDABAD. VS. THE ITO, WARD 9(3), VASUPUJYA CHAMBERS, ASHRAM ROAD, AHMEDABAD. PAN/GIR NO. : AALPV 3112 D (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI A.C.SHAH RESPONDENT BY: SHRI SHELLEY JINDAL CIT D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD.CIT(APPEALS)-XV, AHMEDABAD, DATED 29.11.2005 IN APPEAL NO.CIT(A)- XV/ITO.WD.9(3)/63/05-06. 2. THE SOLE ISSUE INVOLVED IN THE GORUNDS OF APPEAL TAKEN BY THE ASSESSEE IT THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS ) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER OF RS.5,00,642/- TREATING THE GIFTS RECEIVED FROM TWO CLOSE FRIENDS OF THE ASSESS EE AS INCOME FROM UNDISCLOSED SOURCES. 3. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS DECIDED THIS ISSUE AS UNDER:- 3. THE SECOND GROUND OF APPEAL IS AGAINST ADDITION OF RS. 5,00,642/- BEING GIFTS RECEIVED FROM VERY CLOSE FRIENDS AS INC OME FROM UNDISCLOSED SOURCES. THE ASSESSING OFFICER OBSERVED THAT THE AP PELLANT HAD CREDITED IN HIS CAPITAL ACCOUNT AMOUNTS OF RS. 1,66,444/- AN D RS. 3,34,198/- WHICH REPRESENTED FOREIGN GIFTS. THE APPELLANT HAD CLAIME D TO HAVE RECEIVED GIFT OF US $ 7,000 FROM SHRI NAVINCHANDRA N. SHAH A ND OF US $ 3,500 FROM SMT. KAMINI G. PATEL AND SHRI GAUTAMBHAI C. PA TEL. WHEN ASKED TO ITA NO .198/AHD/2006 M/S.VATSALBHAI RAVJIBHAI VASANI ASST.YEAR -2002-03 - 2 - PROVE THE GENUINENESS OF THE SAID FOREIGN GIFTS BY ADDUCING COGENT EVIDENCE THE APPELLANT REPLIED THAT HE WAS PRACTISI NG AS AYURVEDIC CONSULTANT AND WAS WRITING ARTICLES AND IS A REGULA R CONTRIBUTOR IN DAILY NEWSPAPERS LIKE GUJARAT SAMACHAR ETC. HE IS HAVING MANY FRIENDS LIKE SHRI NAVINCHANDRA N. SHAH AND KAMINI G. PATEL AND S HRI GAUTAM C. PATEL WHO WERE RESIDING IN USA. THE SAID FOREIGN GIFTS WE RE DEPOSITED IN THE SAVING BANK ACCOUNT NO. 11064 WITH STATE BANK OF IN DIA, ASHRAM ROAD, AHMEDABAD BY THE APPELLANT AND ON CLEARANCE OF THE CHEQUES, THE BANK HAS CREDITED THE SAID GIFTS IN THE ACCOUNT OF THE A PPELLANT. THE APPELLANT FILED XEROX COPIES OF PAY-IN-SLIPS AND CREDIT ADVIC E/CERTIFICATE DATED 9/2/2005 OF STATE BANK OF INDIA. ASHRAM ROAD BRANCH , AHMEDABAD. THE STATEMENT OF THE APPELLANT WAS RECORDED BY THE ASSE SSING OFFICER WHEREIN HE STATED THAT SOME OF THE NRIS WERE INFLUE NCED BY HIS AYURVEDIC TREATMENT AND IMPRESSED UPON BY READING H IS ARTICLES AS WELL AS THEY WERE TAKING AYURVEDIC TREATMENT FROM THE AP PELLANT WHENEVER THEY VISITED INDIA. SO THE SAID PERSONS HAVE GIFTED THE ABOVE AMOUNTS OUT OF LOVE AND AFFECTION AND THE DONORS HAVE CONFI RMED THAT THEY HAVE MADE GIFTS TO THE APPELLANT. THE DONORS WERE INITIA LLY READERS OF THE APPELLANT'S ARTICLES AND SUBSEQUENTLY THEY BECAME C LOSE FRIENDS OF THE APPELLANT AND THEY INSISTED THE APPELLANT TO BUY NE W OFFICE WITH BETTER FACILITIES AND THEY OFFERED MONETARY HELP BY SENDIN G MONEY AS GIFTS FOR BUYING NEW OFFICE. THE DONORS HAVE CONFIRMED THE GI FTS IN WRITING AND THE TRANSACTIONS ARE THROUGH AUTHORISED BANK CHANNE L AS CERTIFIED BY STATE BANK OF INDIA, ASHRAM ROAD BRANCH, AHMEDABAD. 3.1 THE SUBMISSIONS OF THE APPELLANT WERE NOT ACCEP TED BY THE ASSESSING OFFICER ON THE GROUND THAT THE DONORS ARE NOT CLOSE RELATIVES NOR CLOSELY ASSOCIATED WITH THE APPELLANT AND IT WAS UNBELIEVAB LE THAT A STRANGER CAN MAKE GIFT OF SUCH HUGE AMOUNT TO AN UNKNOWN PERSON. THE IDENTITY AND GENUINENESS OF THE DONORS HAS NOT BEEN ESTABLISHED BY THE APPELLANT BY GIVING ADDUCING COGENT EVIDENCE SUCH AS GIFT DEED. THE DONORS HAVE NOT BEEN PRODUCED FOR CROSS EXAMINATION TO VERIFY THE G ENUINENESS OF THE SO-CALLED FOREIGN GIFTS AND THE SAID GIFTS WERE NOT SUPPORTED BY ANY COGENT AND VALID GIFT DEED. MERE FILING OF CONFIRMA TION CANNOT BE SAID TO BE COGENT EVIDENCE FOR RECEIPT OF GIFT AND IT WAS N OT UNDERSTOOD AS TO HOW THE DONORS WERE INFLUENCED BY-READING ARTICLES AND AYURVEDIC TREATMENT OF THE APPELLANT AND VENTURED TO MAKE THE ABOVE GIFTS. THE APPELLANT HAD NOT STATED THE REASONS AND THE OCCASI ON ON WHICH THE ALLEGED GIFTS WERE RECEIVED BY HIM FROM THE RESPECT IVE DONORS. THE ASSESSING OFFICER RELIED UPON THE DECISION OF PUNJA B & HARYANA HIGH COURT IN THE CASE OF LALL CHAND KABRA VS. CIT REPOR TED IN 22 CTR 135 AND DECISION OF ITAT, AMRITSAR BENCH IN THE CASE OF ITO VS. DR. A.K. SHARMA REPORTED IN 63 TTJ 380 WHEREIN GIFTS FROM DONORS WH O WERE NOT RELATIVES OR FRIENDS OF THE ASSESSEE AND THERE WAS NO REASON OR OCCASION TO SHOW ITA NO .198/AHD/2006 M/S.VATSALBHAI RAVJIBHAI VASANI ASST.YEAR -2002-03 - 3 - FOR GIVING SUCH GIFTS, WERE TREATED AS UNEXPLAINED INVESTMENT. ACCORDINGLY AS THE APPELLANT FAILED TO ESTABLISH TH E IDENTITY AND CAPACITY OF THE DONORS AS WELL AS THE OCCASIONS ON WHICH THE APPELLANT HAD RECEIVED THE GIFTS, THE ASSESSING OFFICER ADDED THE SAME AS INCOME FROM UNDISCLOSED SOURCES OF THE APPELLANT AND MADE ADDIT ION OF RS. 5,00,642/- . 3.2 DISPUTING THE SAID ADDITION, THE AUTHORISED REP RESENTATIVE OF THE APPELLANT SUBMITTED A COPY OF LETTER DATED 16/2/200 5 SUBMITTED BY THE APPELLANT BEFORE THE ASSESSING OFFICER AND COPY OF LETTER DATED 18 TH MARCH, 2005 GIVING FULL DETAILS OF THE REMITTANCE O F GIFT AMOUNTS AND ALSO HAD FILED A CERTIFICATE DATED 9/2/2005 ISSUED BY ST ATE BANK OF INDIA, ASHRAM ROAD BRANCH CONFIRMING THE INWARD REMITTANCE THROUGH THE AUTHORISED BANKING ROUTE. THE AUTHORISED REPRESENTA TIVE HAS FILED BEFORE THE ASSESSING OFFICER THE XEROX COPIES OF BA NK PAY IN SLIPS THROUGH WHICH THE GIFT CHEQUES WERE DEPOSITED IN SAVING BAN K ACCOUNT OF THE APPELLANT. THE CONFIRMATION DATED 9.10.2001 OF THE DONOR SHRI NAVINCHANDRA NATHALAL SHAH WITH HIS FOREIGN ADDRESS AND CONFIRMATION DATED 14 TH AUGUST, 2005 OF MRS. KAMINI GAUTAM PATEL WHO GIFTE D US $ 3500 TO THE APPELLANT AND XEROX COPIES OF THE TWO O RIGINAL CHEQUES OF US $ 7000 AND US $ 3500 HAD BEEN FILED BEFORE THE ASSE SSING OFFICER. IT WAS SUBMITTED THAT THE ASSESSING OFFICER HAD RECORDED T HE STATEMENT FROM THE APPELLANT ON OATH WHICH ITSELF REVEALS CLOSE RE LATIONSHIP/ FRIENDSHIP JUSTIFYING THE OCCASION FOR GIFT AND OVERALL GENUIN ENESS OF GIFT TRANSACTIONS. HENCE IN VIEW OF THE ABOVE FACTS AND DETAILS SUBMITTED, IT WAS SUBMITTED BY THE AUTHORISED REPRESENTATIVE THAT THE GIFT TRANSACTIONS BE TREATED AS GENUINE AND THE ADDITION MADE BY THE ASSESSING OFFICER BE DELETED. 3.3 HAVE CONSIDERED THE SUBMISSIONS OF THE AUTHOR ISED REPRESENTATIVE CAREFULLY. AS IT HAS BEEN HELD IN THE CASE OF CIT VS. DURGA PRASAD MORE REPORTED IN 82 ITR 540 THAT THE TAXING AUTHORITIES ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY AND THE MATTER HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABILITIES. FURTHER IN THE CASE OF SUMATI DAYAL VS.CIT REPORTED IN 214 ITR 801(S.C.) IT HAS BEEN HELD THAT CONSIDERATION OF SURROUNDING CIR CUMSTANCES AND APPLICATION OF THE TEST OF HUMAN PROBABILITIES IS M UST. IT IS FOUND THAT DONORS HAVE NOT GIVEN GIFTS IN EARLIER YEARS OR IN SUBSEQUENT YEARS TO THE APPELLANT NOR THEY HAVE GIVEN GIFTS TO ANY OTHER RE LATIVES DURING THE YEAR OR IN OTHER YEARS. THEREFORE, THE GENUINENESS OF GI FT TRANSACTIONS IS DOUBTFUL. THE DONORS ARE NOT RELATIVES OF THE APPE LLANT BUT THEY HAVE ONLY TAKEN TREATMENT FROM THE APPELLANT AND THEY AR E READERS OF ARTICLES WRITTEN BY THE APPELLANT. IT IS FOUND THAT NO OTH ER READERS OF THE APPELLANT RESIDENT OR NON RESIDENT HAVE GIVEN GIFTS TO THE APPELLANT ITA NO .198/AHD/2006 M/S.VATSALBHAI RAVJIBHAI VASANI ASST.YEAR -2002-03 - 4 - DURING THIS YEAR OR EARLIER YEARS. TO PART WITH SUC H HUGE MONEY BY THE DONORS WHEN THEY HAVE NOT MADE ANY SUCH GIFTS TO TH EIR RELATIVES DURING THE YEAR APPEARS TO BE A STRANGE COINCIDENCE. THE A PPELLANT HAD NOT STATED THE REASONS AND THE OCCASION ON WHICH THE AL LEGED GIFTS WERE RECEIVED BY HIM FROM THE RESPECTIVE DONORS. THE CAP ACITY OF THE DONORS HAS ALSO NOT BEEN PROVED. IT HAS NOT BEEN STATED AS TO WHAT ARE THE ANNUAL EARNINGS OF THE DONORS. IN VIEW OF THE ABOVE FACTS THE TRANSACTIONS OF GIFTS CLAIMED BY THE APPELLANT ARE NOT ACCEPTED AND THE ASSESSING OFFICER'S FINDINGS THAT THE ALLEGED GIFTS REPRESENT NOTHING BUT UNDISCLOSED INCOME OF THE APPELLANT IS CONFIRMED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE RECEIVED FOREIGN GIFTS OF US $ 7000 FROM SHRI NAVIN CHANDRA N. SHAH AND US $ 3500 FROM SMT. KAMINIJI G. PATEL AND GAUTAMBHAI C. PATEL EQUIVALENT TO RS.3,34,198/- AND RS.1,66,444/- IN INDIAN CURRENCY . THE LEARNED ASSESSING OFFICER DID NOT ACCEPT THE GIFTS AS GENUINE ON THE GROUND THAT THE DONORS WERE NOT CLOSE RELATIVES NOR CLOSELY ASSOCIATED WITH THE ASS ESSEE AND A STRANGER CANNOT MAKE GIFT OF SUCH A HUGE AMOUNT TO UNKNOWN PERSONS AND THAT IDENTITY AND GENUINENESS OF THE DONORS WAS NOT ESTABLISHED BY TH E ASSESSEE BY FILING EVIDENCE SUCH AS GIFT DEED AND THAT THE DONORS WERE NOT PROD UCED FOR CROSS EXAMINATION. THE LEARNED ASSESSING OFFICER RELIED ON THE DECISIO N OF THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF LALL CHAND KABRA VS.CIT 22 CTR 135 AND THE DECISION OF AMRITSAR BENCH OF THE TRIBUNAL IN T HE CASE OF ITO VS. DR.A.K.SHARMA 63 TTJ 380 WHEREIN GIFTS FROM DONORS WHO WERE NOT RELATIVES OR FRIENDS OF THE ASSESSEE AND THERE WAS NO OCCASION T O GIFTS SUCH GIFT WERE TREATED AS UNEXPLAINED INVESTMENT. THEREFORE, HE MADE ADDITION OF RS. 5,00,642/- BY TREATING THE GIFTS AS THE INCOME OF THE ASSESSEE FR OM UNDISCLOSED SOURCES. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) CONFIRMED THE ADDITION OBSERVING THAT THE DONORS HAVE NOT GIVEN G IFTS IN EARLIER YEARS OR IN SUBSEQUENT YEARS TO THE ASSESSEE OR TO ANY OTHER RE LATIVES DURING THE YEAR OR IN OTHER YEARS AND THEREFORE, GENUINENESS OF THE GIFTS IS DOUBTFUL. THE CAPACITY OF THE DONORS WHO HAS GIVEN THE GIFTS HAS NOT BEEN PRO VED. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS FILED XEROX COPY OF THE CHEQUES ITA NO .198/AHD/2006 M/S.VATSALBHAI RAVJIBHAI VASANI ASST.YEAR -2002-03 - 5 - RECEIVED AS GIFT AT PAGES 11 AND 13 OF THE PAPER BO OK AND THE CONFIRMATION OF THE DONORS AT PAGES 10 AND 12 OF THE PAPER BOOK. THE LE ARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE POINTED OUT FROM THE SE DOCUMENTS THAT THE CHEQUES CONTAINED THE ADDRESS OF THE DONORS AND THU S, THE IDENTITY OF THE DONOR AND THE CREDITWORTHINESS OF THE DONOR WERE ESTABLIS HED. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT CONFI RMATION OF THE DONORS WAS ALSO FILED. THE LEARNED ASSESSING OFFICER AND THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS MERELY STATED THAT THERE W AS NO OCCASION TO GIFT THE GIFT TO THE ASSESSEE BY THE DONORS AND THAT THE DON ORS ARE NOT THE CLOSE RELATIVES OR FRIENDS OF THE ASSESSEE. ON THE OTHER HAND, THE ASS ESSEE HAS FILED ALL THE EVIDENCE TO PROVE THE GENUINENESS OF THE GIFT RECEIVED BY TH E ASSESSEE. THE LEARNED ASSESSING OFFICER AND THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) HAS TREATED THE GIFT AS NOT GENUINE MERELY ON SUSPICION AND DOUBTS. THEREFORE, THE ADDITION MADE SHOULD BE DELETED. IN THE ABOVE FACT S AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASS ESSEE FILED THE CONFIRMATION OF THE DONORS, XEROX COPY OF THE CHEQUES RECEIVED FROM THE DONORS WHICH CONTAINS THE ADDRESS OF THE DONOR AND THUS, HAS PROVED THE I DENTITY OF THE DONOR GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE DONOR. THE ASSESSEE ALSO FILED CERTIFICATE OF STATE BANK OF INDIA PLACE D AT PAGE 14 OF THE PAPER BOOK CERTIFYING THE CREDIT OF THE GIFTS IN THE ACCOUNT O F THE ASSESSEE. THE ASSESSEE CLAIMED BEFORE THE LOWER AUTHORITIES THAT THE DONOR S WERE CLOSE FRIENDS OF THE ASSESSEE AND WERE IN TOUCH WITH THE ASSESSEE SINCE QUITE A LONG TIME. THE ASSESSEE IS AN AYURVEDIC DOCTOR AND DONOR USED TO T AKE CONSULTATION FROM HIM AND WAS READER OF HIS ARTICLES. THE DONORS WHEN CAM E TO KNOW ABOUT THE INTENTION OF THE ASSESSEE TO PURCHASE AN OFFICE THEY OUT OF N ATURAL LOVE AND AFFECTION GIFTED THE AMOUNT IN QUESTION TO THE ASSESSEE. THE LEARNE D AUTHORISED REPRESENTATIVE OF THE ASSESSEE CLAIMED BEFORE US THAT THE DECISION S RELIED UPON BY THE LEARNED ASSESSING OFFICER ARE NOT APPLICABLE IN THE INSTANT CASE AS THEY ARE DISTINGUISHABLE IN AS MUCH AS THE DONORS WERE OLD FRIENDS AND KNOWI NG EACH OTHER SINCE QUITE A LONG TIME. THE REVENUE COULD NOT BRING ANY MATERIAL ON RECORD AFTER EXAMINING THE ABOVE STATED DOCUMENTS FILED BY THE ASSESSEE TO SHOW THAT THE GIFT IN QUESTION WERE NOT GENUINE OR THAT THE DONORS DID NOT HAVE TH E CAPACITY TO GIVE THE GIFT TO ITA NO .198/AHD/2006 M/S.VATSALBHAI RAVJIBHAI VASANI ASST.YEAR -2002-03 - 6 - THE ASSESSEE. IN ABSENCE OF ANY SUCH EVIDENCE BROUG HT ON RECORD, IN OUR CONSIDERED OPINION, THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN TREATING THE GIFTS RECEIVED BY THE ASSESSEE OF RS.3,34,198/- AND RS.1 ,66,444/- AS UNDISCLOSED INCOME OF THE ASSESSEE, THEREBY, MAKING ADDITION T O THE INCOME OF THE ASSESSEE. WE THEREFORE, SET ASIDE THE ORDER OF THE LOWER AUTH ORITIES AND DELETE THE ADDITION OF RS.5,00,642/- AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 10.12.2009. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 10.12.2009 PREPARED AND COMPARED BY : PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD
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Expert Summary
Assessee, being an ayurvedic practitioner, had written many articles and was a regular contributor to a daily newspaper. Assessee had received gifts from two close friends residing in the U.S of US$10,500,i.e.. Rs 5,00,642/- account of donors being impressed by reading the appellant's articles as well as taking his treatment whenever they visited India, and also out of love and affection. However, the Assessing Officer made an addition on account of the amount received as a gift treated as income from undisclosed sources for donors not being any relatives or being closely associated. Ld. Cit(a) upheld the addition of the Assessing Officer. The AR of the assessee submitted complete details of remittance of gift amounts through the authorised Banking route. The AR proved the creditworthiness and identity of the donors by pointing out the documents which contained the addresses of the donors and had also filed a certificate of SBI Bank certifying the credit of gifts in the account of the assessee. Thus, the Ld. AR of the assessee claimed that decisions relied upon by the Ld. Assessing Officers are not applicable as the donors were old friends and had known each other for quite a long time. Tribunal held that as the AR of the assessee proved the identity, genuineness and creditworthiness of the donors and in the absence of incriminating evidence with the Assessing Officer, the lower authorities were not justified in treating the gifts as undisclosed income of the assessee and thus, the order of the authorities was set aside and the assessee's appeal was allowed.
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