Appeal details
Counselvise Citation
231920114 RSA 2012
Assessee PAN
Bench
Appeal Number
Duration Of Justice
7 month(s) 1 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
17-12-2012
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
SMC
Next Hearing Date
03-10-2012
Assessment Year
2003-2004
Appeal Filed On
16-05-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC: NEW DELHI BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI A. N. PAHUJA, ACCOU NTANT MEMBER ITA NO. 2319/DEL/2012 ASSESSMENT YEAR: 2003-04 SMT. SUNITA SETIA VS. ITO 28, NISHANT KUNJ, WARD-25(1) PITAMPURA NEW DELHI. NEW DELHI. ABKPS4962Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL SHARMA, ADVOCATE RESPONDENT BY : MRS. Y. KAKKAR SR. DR DATE OF HEARING : 04.10.2012 DATE OF PRONOUNCEMENT : ORDER PER I.C. SUDHIR, JUDICIAL MEMBER THE FIRST APPELLATE ORDER HAS BEEN IMPU GNED BY THE ASSESSEE ON SEVERAL GROUNDS. SHE HAS QUESTIONED THE VALIDITY OF NOTICE ISSUED U/S 148 OF THE ACT AND THE ADDITIONS OF RS. 1,50,000/- U/S 68 AND RS. 7,5 00/- U/S 69C SUSTAINED BY THE LD. CIT(A). 2. THE FACTS IN BRIEF ARE THAT ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING OF THE DEPARTMENT REGARDING A HU GE RACKET INVOLVING IN ACCOMMODATION ENTRY OPERATION, THE AO WAS HAVING RE ASONS TO BELIEF THAT INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT IN THE PRESENT CASE. THE LIST OF ITA NO. 2319/DEL/2012 2 BENEFICIARIES WHO HAD TAKEN ACCOMMODATION ENTRY FRO M SUCH PERSONS INCLUDED THE NAME OF SHRI RAJEEV AGGARWAL WHO WAS ALSO DONOR IN THE CASE OF PRESENT ASSESSEE. THE AO ISSUED NOTICE U/S 148 OF THE ACT. IN RESPONSE THERETO THE ASSESSEE SUBMITTED THE COPY OF RETURN FOR THE ASSES SMENT YEAR UNDER CONSIDERATION ALREADY FILED DECLARING AN INCOME OF RS. 82,60,000/- ON ACCOUNT OF INCOME FROM HOUSE PROPERTY. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS / NATURE OF TRANSACTIONS WITH SHRI RAJEEV AGGARWAL AL ONGWITH DOCUMENTARY EVIDENCE IN SUPPORT THEREOF, COPIES OF PASS BOOK / BANK STATEMENT ALONGWITH NARRATION OF ENTRIES OF THE ASSESSEE, DETAILS OF LO ANS / GIFTS RECEIVED FROM THE DONOR WITH DULY VERIFIED DOCUMENTS PROVING THE GENU INENESS OF THE TRANSACTIONS, DETAILS OF INVESTMENT MADE DURING THE YEAR AND THE PROOF OF SOURCE OF FUNDS, ETC. IN REPLY THE ASSESSEE OBJECTED THE INITIATION OF RE OPENING PROCEEDING ON THE BASIS THAT REASONS GIVEN ARE VAGUE, IRRELEVANT AND NON SP ECIFIC. IT WAS SUBMITTED THAT THE ASSESSEE HAD RECEIVED A GIFT OF RS. 1,50,000/- OUT OF NATURAL LOVE AND AFFECTION FROM SHRI RAJEEV AGGARWAL ON 25.4.2002 VI DE CHEQUE NO. 504829 DRAWN ON OBC, MINTO ROAD, NEW DELHI. AFFIDAVITE OF THE DONOR AND MEMORANDUM OF GIFT WERE ALSO FILED. THE AO WAS NOT SATISFIED W ITH THE REPLY OF THE ASSESSEE. HE REJECTED THE OBJECTION RAISED AGAINST THE NOTICE ISSUED U/S 148 OF THE ACT, ON THE BASIS THAT THERE WAS MATERIAL INFORMATION AS PE R THE INQUIRES CONDUCTED BY THE INVESTIGATION WING OF THE DEPARTMENT THAT SHRI RAJEEV AGGARWAL HAS GIVEN ACCOMMODATION ENTRIES TO THE ASSESSEE ALONG WITH SE VERAL OTHER PERSONS. SINCE THE ASSESSEE FAILED TO PRODUCE SHRI RAJEEV AGARWAL, THE DONOR ALONGWITH HIS BANK ITA NO. 2319/DEL/2012 3 PASS BOOK, THE AO DOUBTED THE GENUINENESS OF THE CL AIMED GIFT. THE ASSESSEE REQUESTED FOR ISSUING SUMMONS U/S 131 OF THE ACT TO THE DONOR TO SECURE HIS PRESENCE BEFORE THE AO. THE AO ISSUED THE SUMMONS W HICH WAS RETURNED UNSERVED WITH THIS POSTAL REMARK AS LEFT WITHOUT ADDRESS. THE AO ACCORDINGLY MADE ADDITION OF RS. 1,50,000/- U/S 68 OF THE ACT A S INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCE. HE MADE FURTHER ADDITION O F RS. 7500/- U/S 69 C OF THE ACT ON ACCOUNT OF UNEXPLAINED EXPENDITURE (5% COMMI SSION SPENT ON PROCURING RS. 1,50,000/- ) BY THE ASSESSEE FOR MAKING SHAM TR ANSACTION. THE SAME HAS BEEN UPHELD BY THE LD. CIT(A) AGAINST WHICH ASSESSE E IS IN APPEAL BEFORE US. 3. IN SUPPORT OF THE GROUNDS THE LD. AR REIT ERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. ON THE QUESTION OF VA LIDITY OF NOTICE ISSUED U/S 148 OF THE ACT, HE SUBMITTED THAT THE AO INSTEAD OF APP LICATION OF HIS MIND TO FORM HIS REASONS TO BELIEVE THAT TAXABLE INCOME HAD ESCA PED ASSESSMENT, HE HAS SIMPLY RELIED UPON THE REPORT OF INVESTIGATION WING OF THE DEPARTMENT. ON THE GENUINENESS OF CLAIMED GIFT HE SUBMITTED THAT ALL THE PRIMARY EVIDENCE AS REQUIRED BY THE AO WERE FURNISHED BEFORE HIM AND TH E AO WITHOUT EXAMINING THE SAME HAS COME TO THE CONCLUSION THAT THE CLAIMED GI FT IS NOTHING BUT AN ACCOMMODATION ENTRY. NEITHER THE DONOR NOR THE ASSE SSEE WAS EXAMINED BY HIM. HE SUBMITTED THAT GIFT AMOUNT WAS INVESTED IN THE F IRM. THE DONOR IS A FRIEND OF ASSESSEES HUSBAND . HE PLACED RELIANCE ON THE FOLL OWING DECISIONS :- 1. ITO VS. KABUL TRADING CO. ITA NO. 4415 /D/2009 (ASSTT. YEAR 2005-06) AND CO NO. 13/DE/20 10 (ASSTT. YEAR 2001-02) ORDER DATED 31.3.3010 ITA NO. 2319/DEL/2012 4 2. ITO VS. M/S EXCELLENCE TOWN PL ANNER P. LTD. ITA NO. 871/DEL/2010 (ASSTT. YEAR 20 03-04) 3. CIT VS. EXPO GLOBE INDIA LTD. ITA NO. 1257/2011 (DELHI HIGH COURT) JUDGMENT DATED 20.7 .2012 4. S.K. BOTHRA AND SONS, HUF VS . ITO 347 ITR 347 (CALCUTTA) 4. IN ALTERNATIVE THE LD. AR SUBMITTED THAT THE MATTER MAY BE SET ASIDE TO THE AO FOR AFFORDING OPPORTUNITY TO THE ASSESSEE TO ESTABLISH THE GENUINENESS OF THE CLAIMED GIFT, AFTER EXAMINING THE DONOR AND PRI MARY EVIDENCE FILED IN SUPPORT OF THE CLAIMED GIFT BY THE ASSESSEE. 5. THE LD. DR ON THE OTHER TRIED TO JUSTIFY T HE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE. SHE SUBMITTED THAT THE ASSESSEE HAS T HOROUGHLY FAILED TO DISCHARGE HER ONUS TO ESTABLISH THE GENUINENESS OF THE CLAIME D GIFT. SHE FAILED TO ESTABLISH THE LOVE AND AFFECTION ON THE BASIS OF WHICH DONOR HAS GIVEN THE GIFT OF RS. 1,50,000/-. IT IS SURPRISING THAT DESPITE THIS LOVE AND AFFECTION AS CLAIMED BY THE ASSESSEE WITH THE DONOR, THE DONOR HAS LEFT HIS ADD RESS WITHOUT INTIMATING NEW ADDRESS TO THE ASSESSEE. THE LD. DR SUBMITTED THAT IN FORM NO. 2D, ITS 2D, (SAREL) FURNISHED TO THE DEPARTMENT FOR THE ASSESSM ENT YEAR 2002-03 A DIFFERENT ADDRESS OF SHRI RAJEEV AGGARWAL HAS BEEN GIVEN THAN THE ADDRESS SHOWN IN HIS AFFIDAVIT AND MEMORANDUM OF GIFT ETC. SHE SUBMITTED THAT THERE WAS NO PROCEEDINGS U/S 143 (3) OF ACT IN THE PRESENT CASE ON EARLIER OCCASION BEFORE ISSUANCE OF NOTICE U/S 148 OF THE ACT. SHE SUBMITTE D FURTHER THAT THE DECISIONS RELIED UPON THE LD. AR HAVING DISTINGUISHABLE FACTS ARE NOT RELEVANT IN THE PRESENT CASE. SHE PLACED RELIANCE ON THE FOLLOWING DECISIONS :- ITA NO. 2319/DEL/2012 5 1. CIT VS HAZARI LAL 310 ITR 24 (P & H) 2. BALBIR SINGH VS. CIT 334 ITR 287 (P&H) 3. TIRATH RAM GUPTA VS. CIT 304 ITR 145 (P & H) 4. DIRECTOR OF INCOME TAX (EXEMPTIONS) VS UMA MAH ESHWAR PARMARTH TRUST 292 ITR 352 (DELHI) 5. JASPAL SINGH VS. CIT 290 ITR 306 (P & H) 6. LD. DR SUBMITTED FURTHER THAT ON THE BASI S OF INFORMATION RECEIVED FROM INVESTIGATION WING OF THE DEPARTMENT PROCEEDINGS U/ S 147 / 148 OF THE ACT CAN BE VALIDLY INITIATED. IN SUPPORT SHE PLACED RELIANC E ON THE FOLLOWING DECISIONS :- 1. AGR INVESTMENT LTD. VS ACIT AND ANOTHER 333 ITR 146 (DELHI) 2. CIT VS. SAFETAG INTERNATIONAL INDIA P. LTD. 332 ITR 622 (DELHI) 3. STERLITE INDUSTRIES (INDIA) LTD. VS ACIT AN D ANOTHER 302 ITR 275 (MADRAS) ETC. 7. CONSIDERING THE ABOVE SUBMISSIONS AND GOIN G THROUGH THE DECISIONS RELIED UPON WE DO NOT FIND SUBSTANCE IN THE CONTENTION OF THE LD. AR THAT THERE WAS NO MATERIAL ON RECORD BEFORE THE AO TO FORM HIS REASON S TO BELIEVE THAT TAXABLE INCOME HAS ESCAPED ASSESSMENT TO INITIATE PROCEEDIN GS U/S 148 OF THE ACT. WE FIND THAT THERE WAS SPECIFIC INFORMATION BEFORE THE AO FROM INVESTIGATION WING OF THE DEPARTMENT THAT SHRI RAJEEV AGGARWAL FROM WHOM THE ASSESSEE HAS TAKEN GIFT WAS INVOLVED IN GIVING ACCOMMODATION ENTRIES I N THE FORM OF BOGUS GIFTS / LOANS / SHARE APPLICATION MONEY / CAPITAL GAIN ETC. BY CHEQUES / DDS IN LIEU OF CASH RECEIPT FROM INTENDING BENEFICIARIES. THE OBJE CTION RAISED AGAINST THE ITA NO. 2319/DEL/2012 6 VALIDITY OF NOTICE ISSUED U/S 148 OF THE ACT IN THE PRESENT CASE IS THUS NOT TENABLE. THE GROUND INVOLVING THE ISSUE IS THUS REJ ECTED. SO FAR AS VALIDITY OF ADDITION OF RS. 1,50,000/- MADE U/S 68 AND RS. 7,50 0/- MADE U/S 69C OF THE ACT IS CONCERNED WE ARE OF THE VIEW THAT UNDER THE FACT S AND CIRCUMSTANCES OF THE CASE THAT THE DONOR SHRI RAJEEV AGGARWAL WAS FOUND INVOLVED IN PROVIDING ACCOMMODATION ENTRIES, THE ONUS WAS VERY HEAVY ON T HE ASSESSEE TO ESTABLISH THE GENUINENESS OF THE CLAIMED GIFT FROM THE SAID S HRI RAJEEV AGGARWAL ON THE CONSIDERATION OF ALLEGED LOVE AND AFFECTION WITH TH E HUSBAND OF THE ASSESSEE. NO INSTANCES OR OCCASION HAS BEEN CITED TO ESTABLISH L OVE AND AFFECTION WITH THE DONOR FOR THE CONSIDERATION OF DONATING THE GIFT BY HIM TO THE ASSESSE. OF COURSE THE ASSESSEE HAD FURNISHED THE AFFIDAVIT OF THE DON OR ALONGWITH HIS INCOME TAX RETURN FOR THE ASSESSMENT YEARS 2001-02, ACKNOWLEDG MENT OF RETURN FOR THE ASSESSMENT YEAR 1999-2000, RATION CARD, RETURN OF B ILL, RETURN OF INCOME FOR ASSTT. YEAR 2002-03 AND THE MEMORANDUM OF GIFT WITH THE SU BMISSION THAT THE AMOUNT GIFTED THROUGH CHEQUE BUT NOTHING HAS BEEN EXPLAINE D TO REFLECT LOVE AND AFFECTION WITH THE DONOR ON THE CONSIDERATION OF W HICH THE AMOUNT IN QUESTION WAS GIFTED. NON PRODUCTION OF THE DONOR BY THE ASSE SSEE BEFORE THE AO OR NON AWARENESS OF HIS CHANGED ADDRESS TO THE ASSESSEE AL SO STRENGTHENS THE DOUBT OF THE AO ABOUT THE CLAIMED LOVE AND AFFECTION TO JUST IFY THE DONATION OF GIFT. BEFORE THE AO THE ASSESSEE HAD SUBMITTED ON 6.9.2010 THAT INSPITE OF HER REPEATED REQUEST TO THE DONOR SHRI RAJEEV AGGARWAL TO ATTEND THE OFFICE OF THE AO HE WAS NOT WILLING TO ATTEND OR COOPERATE THE ASSESSEE. AD DRESS OF THE DONOR AS 1-69, ITA NO. 2319/DEL/2012 7 GALI NO. 11 BRAMPURI, DELHI WAS ALSO FURNISHED BEF ORE THE AO. ON THE BASIS OF THIS SUBMISSION THE AO HAD ISSUED SUMMONS U/S 131 O F THE ACT TO THE ASSESSEE ON THE GIVEN ADDRESS BUT THE SAME WAS RETURNED UNSE RVED WITH THE POSTAL REMARK AS LEFT WITHOUT ADDRESS. ALL THESE FACTS W HEN IT IS SEEN IN TOTALITY THE GENUINENESS OF THE CLAIMED GIFT CANNOT BE HELD EST ABLISHED. WE THUS DO NOT FIND REASON TO INTERFERE WITH THE FIRST APPELLATE ORDER SUSTAINING THE ADDITIONS IN QUESTION. THE GROUNDS ARE THUS REJECTED. 8. IN THE RESULT APPEAL IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 7.12.2012. SD/- SD/- (A.N. PAHUJA) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 17.12.2012 *VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER DEPUTY REGISTRAR, ITAT
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