VINOD KUMAR AGARWAL, Jaipur V. ACIT, Jaipur

ITA 237/JPR/2011

• Counselvise Citation: 23723114 RSA 2011
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-11-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 17-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Keywords: Gift
• Section: 148

Judgement Text

1 ITA 237-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER ITA NO. 237/JP/2011 ASSTT. YEAR : 2000-01. SHRI VINOD KUMAR AGARWAL, VS. THE ACIT, CIRCLE-4, C/O GUPTA GARG & CO., (C.A) JAIPUR. H-1/35, RAM VIHAR BUILDING, OPP. GPO, M.I. ROAD, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SATISH GUPTA RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING : 21.11.2011 DATE OF PRONOUNCEMENT : 09.01.2012. ORDER DATE OF ORDER : 09.01.2012. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2000-01. 2. FIRST GROUND IS AGAINST INITIATION OF PROCEEDING S UNDER SECTION 148 WAS NOT PRESSED. THEREFORE, THE SAME IS DISMISSED AS NOT PR ESSED. 3. REMAINING GROUND IS AGAINST CONFIRMING THE ADDIT ION OF RS. 2,50,000/- UNDER SECTION 68. 4. THE ASSESSMENT IN THIS CASE WAS COMPLETED ORIGIN ALLY UNDER SECTION 143(1). THEREAFTER ON INFORMATION RECEIVED FROM INVESTIGATI ON WING, DELHI, IT WAS FOUND THAT A DEMAND DRAFT OF RS. 2.5 LACS WAS ISSUED IN THE NAME OF THE ASSESSEE FROM THE BANK 2 ACCOUNT OF M/S. ABHISHEK TEXTILES. ACCORDINGLY, NO TICE UNDER SECTION 148 WAS ISSUED AND ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF DEPOSIT. IT WAS EXPLAINED THAT THE ASSESSEE RECEIVED A GIFT OF RS. 2.5 LACS FROM SHRI RAVISION MOHAN S/O SHRI CHANDRA MOHAN BY DEMAND DRAFT. COPY OF GIFT DEED , COPY OF CONFIRMATION ALONG WITH AFFIDAVIT OF THE DONOR, COPY OF RETURN OF INCOME ALONG WITH C OPY OF ASSESSMENT ORDER WERE FILED. DETAILS OF DEMAND DRAFT AND COPY OF BALANCE SHEET O F THE DONOR WAS ALSO FILED. IT WAS FURTHER SUBMITTED THAT THE ADVERSE INFERENCE HAS BE EN DRAWN ON THE BASIS OF STATEMENT OF ONE SHRI SANDEEP GUPTA. THE AO WAS REQUESTED TO AL LOW CROSS EXAMINATION OF SHRI SANDEEP GUPTA. IT WAS ALSO REQUESTED THAT THE DONOR MAY BE CALLED BY ISSUING NOTICE UNDER SECTION 131. HOWEVER, THE AO WAS NOT SATISFI ED WITH THE EXPLANATION AND REPLY. HE WAS OF THE VIEW THAT THE ASSESSEE HAS INVESTED H IS OWN MONEY UNDER THE GARB OF GIFT. ACCORDINGLY HE MADE AN ADDITION OF RS. 2.5 LACS UND ER SECTION 68. THE LD. CIT (A) CONFIRMED THE REOPENING OF THE ASSESSMENT ORDER AS WELL AS THE ADDITION. 5. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 6. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, I FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND. I FIN D THAT ASSESSEE HAS FILED COMPLETE DETAILS RELATING TO GIFTED AMOUNT AS DETAILS OF DEMAND DRAF T, COPY OF CONFIRMATION ALONG WITH AFFIDAVIT OF DONOR, COPY OF BALANCE SHEET, COPY OF RETURN ALONG WITH COPY OF ASSESSMENT ORDER WAS FILED. THESE DETAILS WERE NOT FOUND INCO RRECT, NEITHER THE DONOR WAS CALLED INSPITE OF REQUEST MADE BY ASSESSEE NOR THE STATEME NT OF SHRI SANDEEP GUPTA ON WHOSE BASIS THE ADVERSE INFERENCE HAS BEEN DRAWN AGAINST THE ASSESSEE WAS ALLOWED TO BE CROSS EXAMINED. THE HONBLE SUPREME COURT IN THE CASE OF KISHINCHAND CHELLA RAM, 125 ITR 713 (SC) HAS HELD THAT WITHOUT ALLOWING CROSS EXAMI NATION ADVERSE INFERENCE CANNOT BE 3 DRAWN ON THE BASIS OF STATEMENT OF A THIRD PARTY. THE ASSESSEE HAS DULY DISCHARGED HIS ONUS BY FILING ALL THE REQUIRED DETAILS. THEY WERE NOT FOUND IN-GENUINE OR INCORRECT AS STATED ABOVE. THEREFORE, IN MY VIEW, ADVERSE INFER ENCE DRAWN BY AO WHICH IS CONFIRMED BY LD. CIT (A) WAS NOT JUSTIFIED. ACCORDINGLY, I DE LETE THE ADDITION OF RS. 2.5 LACS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. 8. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09. 01.2012. SD/- ( R.K. GUPTA ) JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SHRI VINOD KUMAR AGARWAL, JAIPUR. THE ACIT, CIRCLE-4, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 237/JP/2011) BY ORDER, AR ITAT JAIPUR.