Sh. Balbir Sharma, Delhi V. ITO, New Delhi

ITA 223/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2927 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-06-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 18-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Salary income
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.S. SYAL, VICE-PRESIDENT ITA NO.223/DEL/2016 ASSESSMENT YEAR : 2002-03 BALBIR SHARMA, C-67A, YADAV NAGAR, SAMEYPUR, DELHI. PAN: ACCPS4257P VS. ITO, WARD 40(2), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATYAJEET GOEL, CA DEPTT. BY : MS BEDOBANI, DR DATE OF HEARING : 01.06.2017 DATE OF PRONOUNCEMENT: 02.06.2017 ORDER THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE CIT(A) ON 27.11.2015 IN RELATION TO THE ASSESSMENT YEAR 2002-03. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE APPEAL IS AGAINST THE CONFIRMATION OF ADDITION OF RS.5 LAC MADE BY THE AS SESSING OFFICER ON ACCOUNT OF UNEXPLAINED GIFT U/S 68 OF THE ACT. ITA NO.223/DEL/2016 2 3. SUCCINCTLY, THE FACTS OF THE CASE ARE THAT THE A SSESSEE DEPOSITED A SUM OF RS.5 LAC IN HIS BANK ACCOUNT. ON BEING CALLED U PON TO FURNISH THE SOURCE OF SUCH DEPOSIT, THE ASSESSEE FILED A LETTER ON THE DAK COUNTER OF THE DEPARTMENT STATING THAT HIS GRAND MATERNAL MOTHER G AVE HIM A GIFT OF RS.5 LAC IN CASH BEFORE HER DEATH WHICH WAS KEPT BY HIM WITH HIS FATHER, NAMELY, SHRI JAI NARAIN SHARMA AND, LATER ON, HE RECEIVED B ACK THE SAME FROM HIS FATHER AND DEPOSITED IN HIS BANK ACCOUNT. SUBSTANT IATING THE CLAIM, THE ASSESSEE FILED A COPY OF THE GIFT DEED, AGAIN, ON T HE DAK COUNTER. THE ASSESSING OFFICER FOUND THAT THE COPY OF THE ALLEGE D GIFT DEED WAS NOT LEGIBLE AND THE ALLEGED DONOR HAD ONLY PUT HER THUM B IMPRESSION. THE ASSESSING OFFICER FURTHER NOTICED THAT THE ASSESSEE WAS IN RECEIPT OF SALARY INCOME FROM MINISTRY OF SPORTS AND YOUTH AFFAIRS A ND THE INFORMATION PASSED ON TO HIM BY DGIT (INV.) SHOWED THAT SEARCH WAS CONDUCTED BY CBI AUTHORITIES ON THE ASSESSEE ON 10.07.2006. IT WAS FURTHER OBSERVED THAT BEING A GOVERNMENT SERVANT, THE ASSESSEE, AS PER TH E CONDUCT RULES, WAS UNDER AN OBLIGATION TO INTIMATE THE RECEIPT OF THE GIFT TAKEN FROM HIS RELATIVE AND NOTHING WAS PLACED ON RECORD TO SHOW THAT INTIM ATION OF SUCH GIFT WAS EVER GIVEN BY THE ASSESSEE TO HIS DEPARTMENT. AS TH E ASSESSEE FAILED TO PROVE THE CREDIT WORTHINESS OF THE DONOR WHO WAS CL AIMED TO HAVE EXPIRED ITA NO.223/DEL/2016 3 IN THE YEAR 2000, THE ASSESSING OFFICER DID NOT ACC EPT THE GENUINENESS OF THE CREDIT. HE, THEREFORE, MADE ADDITION FOR THE EQ UAL SUM, WHICH CAME TO BE CONFIRMED BY THE LD. CIT(A), GIVING THE FOLLOWING REASONS:- A) NO RETURN OF INCOME WAS FILED BY THE ASSESSEE; B) THE APPELLANT SPECIFICALLY OPENED NEW BANK ACCOUNT AND ON THE SAME DAY MADE THE CASH DEPOSIT IN QUESTION; C) ASSESSEE BEING A GOVERNMENT SERVANT REQUIRES TO INT IMATE ANY GIFT RECEIVED ABOVE CERTAIN AMOUNT. NO SUCH INTIMATION WAS GIVEN; D) ON 2.12.2009, THE APPELLANT APPEARED BUT FAILED TO GIVE ANY EXPLANATION ABOUT THE SOURCE OF THE DEPOSIT; E) ON THE NEXT DATE THERE WAS NON-COMPLIANCE AND SUBSE QUENTLY A LETTER EXPLAINING THE SOURCE WAS FILED IN THE DAK COUNTER; F) THE ORIGINAL COPY OF THE SUPPORTING DOCUMENTS WERE NOT PRODUCED FOR VERIFICATION; AND G) ASSESSEE EVEN AFTER BEING GIVEN REASONABLE OPPORTUN ITY, FAILED TO PROVE THE GENUINENESS OF THE GIFT CLAIMED TO HAVE B EEN RECEIVED FROM A PERSON WHO NO MORE TO CONFIRM OR DENY. 4. THE ASSESSEE IS AGGRIEVED AGAINST THE SUSTENA NCE OF THE ADDITION. ITA NO.223/DEL/2016 4 5. HAVING HEARD THE RIVAL CONTENTIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD, IT IS NOTICED THAT THE ASSESSEE HAS MADE OUT A CASE OF HAVING RECEIVED A GIFT FROM HIS MATERNAL GRANDMOTHER IN TH E YEAR 2000 WHICH WAS KEPT BY HIM WITH HIS FATHER AND, SUBSEQUENTLY, RECE IVED THE SAME AMOUNT BACK IN INSTALMENTS. IT CAN BE SEEN THAT THE ASSES SEE SIMPLY FILED HIS REPLIES BEFORE THE ASSESSING OFFICER ON THE DAK COUNTER A ND DID NOT PARTICIPATE BY PERSONALLY APPEARING. SIMPLY A COPY OF THE GIFT DEE D WAS FILED WITHOUT SHOWING THE ACTUAL GIFT DEED TO THE ASSESSING OFFIC ER. THE ASSESSEE HAS CLAIMED THAT HE WAS ADOPTED BY HIS MATERNAL GRANDMO THER. ON GOING THROUGH THE GIFT DEED, IT IS SEEN THAT THERE IS A M ENTION OF ADOPTION DEED THEREIN. ON A SPECIFIC QUERY, THE LD. AR DID NOT HA VE A COPY OF SUCH ADOPTION DEED. THE LD. AR HAS FILED DETAILS OF THE ALLEGED REPAYMENTS MADE BY THE FATHER TO THE ASSESSEE ON SEVERAL DATES , WHICH AMOUNT IN TOTAL WAS CLAIMED TO HAVE BEEN DEPOSITED IN HIS BANK ACCO UNT ON A SINGLE DATE. SUCH DETAILS WERE ALSO NOT FILED BEFORE THE ASSESSI NG OFFICER. IN MY CONSIDERED OPINION, ALL THE ABOVE FACTS AND THE REA SONS RECORDED BY THE LD. CIT(A) AS NOTED ABOVE HAVE AN IMPORTANT BEARING ON THE GENUINENESS OR OTHERWISE OF THE GIFT OF RS.5 LAC. SINCE IMPORTANT DETAILS IN THIS REGARD WERE NOT FILED BEFORE THE AUTHORITIES BELOW, I AM OF THE CONSIDERED OPINION THAT ITA NO.223/DEL/2016 5 THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IM PUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSES SING OFFICER. I ORDER ACCORDINGLY AND DIRECT HIM TO DECIDE THIS ISSUE AFR ESH AFTER ALLOWING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO CO-OPERATE THE ASSESSING OFFICER BY PUTTING IN A PPEARANCE AS AND WHEN REQUIRED. IN CASE, THE ASSESSEE AGAIN DOES NOT PAR TICIPATE IN THE FRESH PROCEEDINGS, THE AO WILL BE ENTITLED TO DRAW ADVERS E INFERENCE. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 2 ND JUNE, 2017. SD/- (R.S. SYAL) VICE-P RESIDENT DATED: 02 ND JUNE, 2017. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI