Smt. Daljit Kaur, Chandigarh V. ITO, Chandigarh

ITA 228/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81028 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 06-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 228/CHD/2014 ASSESSMENT YEAR: 2008-09 SMT. DALJIT KAUR, V THE ITO, H.NO. 2808, WARD 3(3), SECTOR 22-C, CHANDIGARH. CHANDIGARH. PAN: ABCPK2277N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL BATRA RESPONDENT BY : SHRI RAJIV KUMAR DATE OF HEARING : 10.11.2014 DATE OF PRONOUNCEMENT : 18.11.2014 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) CHANDIGARH DATED 27.12.2013 FOR ASSESS MENT YEAR 2008-09 ON THE FOLLOWING GROUNDS : 1. THE ORDER OF THE LD. CIT(APPEALS) IS BAD, AGAINST FACTS AND LAW. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEAL), WITHOUT APPRECIATING THE FACTS, SUBMISSIONS AND EVIDENCE PLACED ON RECORD, ERRED IN SUSTAINING THE ADDITION OF RS. 9,00,000/- (RUPEES NINE LACS ONLY) RECEIVED BY THE APPELLANT AS GIFT FROM HER NON- RESIDENT SISTER. THE CLAIM OF APPELLANT BE ACCEPTED AND THE ADDITION BE DELETED. 2. THE BRIEF FACTS OF THE ISSUE ARE THAT THE ASSES SING OFFICER NOTICED CREDITS OF RS. 9,00,000/- IN THE BANK ACCOU NT OF THE APPELLANT AND WHEN QUESTIONED ABOUT THE SOURCE OF T HESE CREDITS, 2 THE APPELLANT HAD SUBMITTED THAT THE AMOUNTS WERE R ECEIVED AS GIFTS FROM HER SISTER MS. SURINDER KAUR AS UNDER: 3. THE APPELLANT HAD SUBMITTED THAT HER SISTER WAS A NON- RESIDENT AND HAD FILED HER CONFIRMATION. IT WAS ALS O SUBMITTED BY THE APPELLANT THAT OUT OF THE AMOUNT RECEIVED, AN A MOUNT OF RS. 4,00,000/- WAS RETURNED BY WAY OF INVESTMENT IN A F LAT IN KHARAR. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EX PLANATION OF THE APPELLANT AND MADE ADDITION OF THE ENTIRE AMOUN T WITH THE FOLLOWING OBSERVATIONS: (I) THE CERTIFICATE GIVEN BY MS. SURINDER KAUR WA S ON A PLAIN PAPER. NO DETAILS OF THE GIFTS WERE MENTIONED ON THIS CERTIFICATE. (II) REGARDING PURCHASE OF FLAT, NO DATE IS MENTIO NED ON THE AGREEMENT TO SELL. (III) IT IS NOT KNOWN AS TO WHO HAS MADE PAYMENT OF RS. 4,00,000/- FOR PURCHASE OF FIAT AND WHETHER IT WAS IN CASH OR BY CHEQUES. (IV) THE CASH DEPOSITS WERE MADE IN THE BANK ACCOU NT OF MS. SURINDER KAUR JUST BEFORE THE CHEQUES OF RS. 1,20,0 00/- AND RS. 1,00,000/-WERE ISSUED ON 08.02.2008 AND 03.03.2008 RESPECTIVELY. 4. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE LD. COUNSEL FOR THE APPELLANT HAS LARGELY REITERATED THE S UBMISSION FILED BEFORE THE ASSESSING OFFICER. 5. THE LD. CIT(APPEALS), CONSIDERING EXPLANATION OF THE ASSESSEE IN THE LIGHT OF THE MATERIAL ON RECORD CONFIRMED TH E ADDITION AND DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. HIS FINDINGS IN 20.08.2007 RS. 6,00,000/- CASH 07.02.2008 RS. 1,20,000/- CHEQUE 29.02.2008 RS. 10,000/- CASH 01.03.2008 RS. 1,00,000/- CHEQUEE 01.03.2008 RS. 70,000/ - CHEQUE TOTAL RS. 9,00,000/- 3 PARA 3.3 TO 3.3.1 ARE REPRODUCED AS UNDER : 3.3 I HAVE CONSIDERED THE SUBMISSION OF THE LD. C OUNSEL. MS. SURINDER KAUR, THE SISTER OF THE APPELLANT, IS A NON- RESIDENT LIVING IN ITALY. SHE HAD GIVEN RS. 6,00,00 0/- TO THE APPELLANT IN CASH AND HAD DEPOSITED ANOTHER RS. 2,20,000/- IN HER OWN BANK ACCOUNT ON SEVERAL DATES AND HAD SUBSEQUENTLY ISSUED CHEQUES OF RS. 1,20,000/- A ND RS. 1,00,000/- IN FAVOUR OF THE APPELLANT. THE CLAI M OF THE APPELLANT IS THAT THE ENTIRE AMOUNT OF RS. 9,00,000 /- WAS GIFT FROM MS. SURINDER KAUR. AT THE OUTSET, IT MAY BE MENTIONED THAT IT IS NOT UNDERSTOOD AS TO HOW MS. SURINDER KAUR COULD VISIT INDIA WITH SO MUCH INDIAN CURRENCY, WHICH HAS BEEN GIVEN TO THE APPELLANT AND DEPOSITED IN THE BANK ACCOUNT. IT IS ALSO WORTH NOT ING THAT THE APPELLANT HAD FILED A LETTER DATED 25.08.2010 B EFORE THE ASSESSING OFFICER THAT THE AMOUNTS WERE RECEIVE D AS GIFT FROM HER SISTER, WHEREAS MS. SURINDER KAUR HAS MENTIONED AS UNDER IN HER CONFIRMATION LETTER: 'THAT DURING THE FINANCIAL YEAR 2007-08, I HAD ADVANCED A TOTAL SUM OF RS. 8,90,000 ON DIFFERENT DATES, BY WAY OF CHEQUES, TO MY SISTER SMT. DALJIT KAUR FOR HER PERSONAL NECESSITY. OUT OF THE SAID AMOUNT SHE FIO6 REPAID RS. 4 LACS, BY WAY OF INVESTMENT IN FLAT NO. 117, 1 ST FLOOR OF BLOCK B-L OF ACME HEIGHTS APARTMENTS, KHARAR. THUS, THERE IS CONTRADICTION BETWEEN WHAT IS STATED BY THE APPELLANT AND WHAT IS MENTIONED IN THE CONFIRMATION OF HER SISTER ON THE FOLLOWING COUNTS : (A) MS. SURINDER KAUR HAS MENTIONED THAT THE AMOUNT WAS GIVEN BY WAY OF CHEQUES WHEREAS THE AMOUNT OF RS. 6,00,OOO/- WAS GIVEN IN CASH. (B) MS.SURINDER KAUR HAS MENTIONED IN THE CONFIRMATION THAT THE AMOUNT WAS GIVEN FOR PERSONAL NECESSITY WHEREAS THE APPELLANT SAYS THAT IT IS GIFT. (C) IF THE CLAIM OF THE APPELLANT IS THAT THE AMOUNT RECEIVED WAS GIFT THEN WHY RS. 4,00,000/- HAS BEEN RETURNED BACK AS INVESTMENT IN THE FLAT. 3.3.1 IN VIEW OF THE ABOVE, IT IS EVIDENT THAT THE EXPLANATION GIVEN IN RESPECT OF DEPOSITS IN THE BAN K ACCOUNT IS NOT SATISFACTORY AND SO THE ADDITION MAD E ON THIS ACCOUNT IS CONFIRMED. GROUND OF APPEAL NO. 2 I S DISMISSED. 6. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDING OF AUTHORITIES BELOW AND CONSID ERED THE MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE 4 REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORIT IES BELOW AND REFERRED TO THE BANK STATEMENT OF THE ASSESSEE, COP Y OF THE LETTER SENT BY THE DONOR AND COPY OF THE BANK STATEMENTS O F THE DONOR MS. SURINDER KAUR AND SUBMITTED THAT ASSESSEE HAD D ISCHARGED INITIAL ONUS TO PROVE GENUINE GIFT IN THE MATTER AN D ASSESSEE NEED NOT TO PROVE SOURCE OF SOURCE I.E. CASH DEPOSITED I N THE ACCOUNT OF THE DONOR BEFORE ISSUING TWO CHEQUES IN FAVOUR OF T HE ASSESSEE OR GIVING CASH GIFT. 7. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS O F THE AUTHORITIES BELOW. 8. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, W E DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. THE ASSESSEE CLAIMED GENUINE GIFT IN THE MATTER, THEREFORE ONUS WOULD BE UPON THE ASSESSEE TO PROVE IDENTITY OF THE DONOR, HER CR EDIT WORTHINESS TO MAKE GIFT AND GENUINENESS OF THE GIFT IN THE MAT TER. THE GIFT IS DEFINED IN SECTION 122 OF THE TRANSFER OF PROPERTY ACT WHICH PROVIDES GIFT IS THE TRANSFER OF CERTAIN EXISTING MOVEABLE OR IMMOVEABLE PROPERTY MADE VOLUNTARILY AND WITHOUT CO NSIDERATION BY ONE PERSON CALLED THE DONOR TO ANOTHER CALLED TH E DONEE AND ACCEPTED BY OR ON BEHALF OF THE DONEE. THE ASSESSEE HAS FILED A COPY OF THE LETTER STATED TO BE ISSUED BY DONOR MS. SURINDER KAUR WHICH IS REPRODUCED IN THE FINDINGS OF THE LD. CIT( APPEALS) AS WELL AS IN THE ASSESSMENT ORDER. IN THIS LETTER, MS. SU RINDER KAUR HAS MENTIONED THAT AMOUNT WAS GIVEN BY WAY OF CHEQUES W HEREAS THE AMOUNT OF RS. 6 LACS AND RS. 10,000/- ARE STATED TO BE GIVEN IN CASH. MS. SURINDER KAUR HAS MENTIONED IN THIS LETT ER THAT AMOUNT WAS GIVEN FOR PERSONAL NECESSITY WHEREAS THE ASSESSEE CLAIMED THE AMOUNT IN QUESTION TO BE GIFT. THUS, T HE BASIC 5 INGREDIENTS OF GIFT HAVE NOT BEEN ESTABLISHED BY TH E ASSESSEE ON THE MATTER IN ISSUE. FURTHER, THE GENUINENESS OF T HE LETTER ISSUED BY THE DONOR IS NOT PROVED TO THE SATISFACTION OF T HE AUTHORITIES BELOW. NO EVIDENCE, WHAT-SO-EVER HAS BEEN FILED TO SUPPORT THE SAID LETTER WHICH IS MERELY ON PLAIN PAPER AND DOES NOT CONTAIN THE DETAILS OF THE GIFT. THE SAID LETTER STATED TO BE SENT FROM ITALY HAS NOT BEEN ENDORSED BY ANY INDIAN AUTHORITIES TO CERTIFY THAT SAME WAS A GENUINE PAPER SENT BY THE DONOR FROM ITA LY. THEREFORE, GENUINENESS OF THE LETTER ITSELF IS IN D OUBT AND HAVE BEEN RIGHTLY REJECTED BY THE AUTHORITIES BELOW. FU RTHER, THE COPIES OF THE BANK ACCOUNT OF THE DONOR HAVE BEEN F ILED ON RECORD BUT LD. COUNSEL FOR THE ASSESSEE WAS NOT ABLE TO PO INT OUT AS TO HOW RS. 6 LACS IN CASH WAS AVAILABLE TO THE DONOR O N 20.08.2007 FOR THE PURPOSE OF GIVING ALLEGED GIFT TO THE ASSES SEE. THE COPIES OF THE BANK ACCOUNT OF MS. SURINDER KAUR, DONOR DID NOT REVEAL ANYTHING AS TO HOW SHE MADE WITHDRAWALS FROM THE BA NK ACCOUNT TO GIVE ANY CASH GIFT TO THE ASSESSEE. 9. FURTHER, ANOTHER TWO SUMS OF RS. 1,20,000/- AND RS. 1 LAC ARE STATED TO BE GIVEN THROUGH CHEQUES ON 07.02.200 8 AND 01.03.2008. THE COPY OF THE BANK ACCOUNT OF THE DO NOR IS FILED IN THE PAPER BOOK WHICH IS ALSO REPRODUCED AT PAGE 13 OF THE ASSESSMENT ORDER AND REVEALED THAT THE DONOR WAS H AVING OPENING BALANCE OF RS. 290.20 AND THERE IS A CASH D EPOSIT OF RS. 40,000/- EACH ON THREE DATES I.E. 16.01.2008, 17.01 .008 AND 22.01.2008 AND THEREAFTER, CHEQUES OF RS.1,20,000/- WAS CLEARED FROM THE ACCOUNT OF THE DONOR ON 08.02.2008. SIMIL ARLY, CASH OF RS. 40,000/-, RS. 40,000/- AND RS. 20,000/- WERE DE POSITED IN THE ACCOUNT OF THE DONOR ON 12.02.2008, 18.02.2008 AND 6 22.02.2008 AND THEREAFTER THE CHEQUES OF RS. 1 LAC WAS CLEARED ON 03.03.2008. THE BALANCE REMAINED IN THE ACCOUNT OF THE DONOR AT RS. 290.20. THUS, THE DONOR WAS NOT HAVING ANY SUF FICIENT MEANS TO MAKE ANY GIFT TO THE ASSESSEE OF THE AFORESAID A MOUNTS. IT IS NOT EXPLAINED AS TO WHY CASH OF THE EQUIVALENT AMOU NT OF GIFTS HAVE BEEN DEPOSITED IN THE ACCOUNT OF THE DONOR BEF ORE GIVING THE ALLEGED GIFT TO THE ASSESSEE. SUCH A COURSE WAS NO T FOUND ACCEPTABLE BY ITAT AGRA BENCH IN THE CASE OF SMT. S UMAN GUPTA VS ITO 138 ITD 153 AND CREDIT WAS HELD TO BE BOGUS. THE ORDER OF THE TRIBUNAL HAS BEEN CONFIRMED BY HON'BLE ALLAH ABAD HIGH COURT IN THE CASE OF SMT. SUMAN GUPTA VS CIT IN ITA 680/2012 DATED 07.08.2012. SIMILARLY, HON'BLE GUJRAT HIGH C OURT IN THE CASE OF BLESSINGS CONSTRUCTION VS ITO 32 TXMAN.COM 366 HELD WHERE SIZEABLE AMOUNTS WERE DEPOSITED IN CASH IN T HE ACCOUNT OF THE DEPOSITORS ONLY BEFORE THEIR WITHDRAWALS THROUG H CHEQUES IN FAVOUR OF THE ASSESSEE, ADDITION WAS JUSTIFIED. 10. CONSIDERING TOTALITY OF THE FACTS AND CIRCU MSTANCES, IT IS CLEAR THAT ASSESSEE HAS FAILED TO PROVE THE CREDIT WORTHINESS OF THE DONOR FOR GIVING GIFTS TO THE ASSESSEE BECAUSE NO EVIDENCE OF AVAILABILITY OF CASH OF RS. 6 LACS WAS PROVED BEFOR E THE AUTHORITIES BELOW AND FOR TWO CHEQUES GIVEN TO THE ASSESSEE, AS SESSEE FAILED TO PROVE SOURCE OF CASH DEPOSITS IN THE ACCOUNT OF THE DONOR BEFORE GIVING THE GIFT TO THE ASSESSEE. THE ASSESS EE HAS THUS, FAILED TO PROVE GENUINENESS OF THE GIFT IN THE MATT ER. MERELY BECAUSE TWO GIFTS WERE GIVEN BY CHEQUES IS NOT SACR OSANCT TO MAKE A NON GENUINE TRANSACTION AS GENUINE TRANSACTI ON. THE ASSESSEE FURTHER CLAIMED TO HAVE REPAID RS. 4 LACS TO THE DONOR BUT IT WOULD NOT ABSOLVE THE ASSESSEE FROM PROVING THE CREDIT 7 WORTHINESS OF THE DONOR AND GENUINENESS OF THE TRAN SACTION IN THE MATTER. MERE REPAYMENT OF RS. 4 LACS WOULD NOT BE A GROUND TO PLEAD THE NON-GENUINE GIFT AS GENUINE AND WOULD NOT BE REDUCED FROM THE ADDITION MADE BY THE AUTHORITIES BELOW. T HE LD. CIT(APPEALS) ALSO SPECIFICALLY NOTED IN HIS FINDING S THAT HOW THE DONOR COULD COME WITH SO MUCH INDIAN CURRENCY WHICH WAS NOT DEPOSITED IN HER BANK ACCOUNT. THUS, THE CONTRADIC TION IN THE STORY OF THE ASSESSEE IS NOT EXPLAINED AT ALL. THE ASSESSEE, THEREFORE, FAILS TO EXPLAIN DEPOSITS IN HER BANK AC COUNT TO THE SATISFACTION OF THE AUTHORITIES BELOW. AUTHORITIES BELOW WERE THEREFORE, JUSTIFIED IN MAKING AND CONFIRMING THE A DDITION OF RS. 9 LACS IN THE HANDS OF THE ASSESSEE. 11. CONSIDERING THE ABOVE DISCUSSION, WE ARE O F THE VIEW THAT ASSESSEE HAS FAILED TO PROVE GENUINENESS OF THE GIF TS IN THE MATTER AND ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN TH E ORDER OF THE LD. CIT(APPEALS) IN CONFIRMING THE ADDITION. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH NOVEMBER,2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH NOVEMBER,2014. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH