Vandana Gupta, New Delhi V. ITO, New Delhi

ITA 2400/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97865 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 29-10-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 23-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: NAVEEN GUPTA
• Keywords: Gift; Onus to prove
• Section: 143(3); 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : H : NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, AM AND SHRI SUDHANSHU SRIVASTAVA, JM ITA NO.2400/DEL/2013 ASSESSMENT YEAR : 2003-04 VANDANA GUPTA, RZ-5, RAJDHANI PARK, ROHTAK ROAD, MUNDKA, NEW DELHI. PAN: AFMPG2291N VS. ITO, WARD-25(4), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NAVEEN GUPTA, ADVOCATE, DEPARTMENT BY : SHRI O.P. MEENA, SR. DR DATE OF HEARING : 29.10.2015 DATE OF PRONOUNCEMENT : 17.11.2015 ORDER PER J. SUDHAKAR REDDY, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER PASSED BY THE CIT(A)-XXIV, NEW DELHI, DATED 14.2.2013, FOR TH E ASSESSMENT YEAR 2003-04. ITA NO.2400/DEL/2013 2 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN I NDIVIDUAL ENGAGED IN THE BUSINESS OF TRANSPORT AS PROPRIETOR OF NEW BHAG WATI TRANSPORT SERVICES AND SHARE TRADING. RETURN OF INCOME FOR TH E ASSESSMENT YEAR 2003-04 WAS FILED ON 24.9.2004, DECLARING TOTAL INC OME AT RS.1,40,670/-. THE AO, AFTER RECORDING REASONS, ISSUED NOTICE U/S 148 OF THE IT ACT, 1961 DATED 26.3.2010. THEREAFTER, HE COMPLETED THE ASSESSMENT U/S 143(3) READ WITH SECTION 147 ON 3.12.2010 DETERMINI NG THE TOTAL INCOME AT RS.5,40,470 /-, INTER ALIA , MAKING AN ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSIT IN BANK OF RS.4 LAC. ON APPEAL , THE FIRST APPELLATE AUTHORITY UPHELD THE SAME. FURTHER AGGRIEVED, THE ASSESSEE IS BEFORE US. 3. THE LD. COUNSEL FOR THE ASSESSEE, SHRI NAVEEN GU PTA, SUBMITTED THAT THE REOPENING IS BAD IN LAW FOR THE REASON THAT REA SONS FOR REOPENING WAS NOT COMMUNICATED BY THE AO. ON A QUERY FROM THE BE NCH, HE SUBMITTED THAT THE ASSESSEE DID NOT ASK FOR THE REASON, BUT, NEVERTHELESS, NON- FURNISHING OF REASONS MAKES THE ASSESSMENT BAD IN L AW IN THE LIGHT OF THE FOLLOWING:- 133 ITD 111 (KOL) (TM); AND ITA NO.2400/DEL/2013 3 370 ITR 107 (GUJ) 4. ON MERITS, HE SUBMITTED THAT THE IDENTITY OF THE CREDITOR WAS NOT IN DOUBT AND THE CAPACITY OF THE CREDITOR WAS GOOD BEC AUSE SHRI MANOJ KUMAR BATRA IS ASSESSED BOTH TO INCOME-TAX AS WELL AS WEALTH-TAX. ON GENUINENESS OF THE TRANSACTION, HE POINTED OUT THAT THE PAYMENT HAS BEEN MADE THROUGH BANKING CHANNELS AND MEMORANDUM OF GIF T AS WELL AS AFFIDAVIT WERE FILED BY SHRI MANOJ KUMAR BATRA IN S UPPORT OF THE IMPUGNED TRANSACTION. 5. THE LD. SR. DR, SHRI O.P. MEENA, ON THE OTHER HA ND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT WHEN THE ASSESSEE DID NOT ASK FOR ANY REASONS, THE QUESTION OF COMMUNICATING THE SAME DOES NOT ARISE. 6. ON MERITS, HE RELIED ON PARA 3 OF THE LD.CIT(A) S ORDER AND SUBMITTED THAT IT IS STRANGE THAT A 43 YEAR OLD MAR RIED WOMAN GOT A GIFT FROM A 41 YEAR OLD MAN WHO IS NOT RELATED TO HER. 7. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE RELEVANT MATERIAL ON RECORD, WE HOLD AS FOLLOWS. THE HONBL E GUJARAT HIGH COURT ITA NO.2400/DEL/2013 4 IN THE CASE REPORTED IN 370 ITR 107 (GUJ) WAS GIVIN G DIRECTIONS FOR FUTURE COMPLIANCE BY THE AOS. THIS JUDGEMENT WAS N OT AVAILABLE TO THE AO AS ON THE DATE OF COMPLETION OF ASSESSMENT ON 3. 12.2010. VIDE THE THIRD MEMBER DECISION OF THE KOLKATA BENCH REPORTED IN 133 ITR 111, THE ASSESSMENT WAS SET ASIDE TO THE AO FOR FURNISHI NG REASONS FOR REOPENING. THIS CASE LAW DOES NOT SUPPORT THE ARGU MENT OF THE ASSESSEE THAT NON-FURNISHING OF REASONS FOR REOPENING MAKES THE ASSESSMENT BAD IN LAW. THUS, THIS ARGUMENT OF THE ASSESSEE IS DISM ISSED. 8. ON MERITS, WE FIND THAT THE DONOR HAS GIVEN AN A FFIDAVIT AS WELL AS A MEMORANDUM OF GIFT. HE IS ASSESSED BOTH TO INCOM E-TAX AS WELL AS WEALTH-TAX. THE AO HAS NOT CONDUCTED ANY INQUIRY NO R EXAMINED THE DONOR AND MADE THE ADDITION U/S 68 ON SURMISES AND CONJECTURES. THE THEORY OF PREPONDERANCE OF PROBABILITIES CAN BE INV OKED WHEN THE FACTS AND EVIDENCES FILED BY THE ASSESSEE ARE NOT VERIFIA BLE. IN OUR VIEW, THE ASSESSEE HAS DISCHARGED THE BURDEN OF PROOF THAT LA Y ON HER, WHEREAS THE AO HAS NOT DISCHARGED THE ONUS THAT SHIFTED TO HIM. THE ADDITION OF RS.4 LAC IS, THEREFORE, HEREBY DELETED. ITA NO.2400/DEL/2013 5 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED IN PART. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.11.201 5. SD/- SD/- [SUDHANSHU SRIVASTAVA] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 17 TH NOVEMBER, 2015. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.