The ITO, Ward-1(2), Bhavnagar V. Shri Devangbhai H.Vyas, Bhavnagar

ITA 2465/AHD/2010

• Counselvise Citation: 246520514 RSA 2010
• Duration Of Justice: 3 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-11-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 06-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: ANKIT TALSANIA
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO.2465/AHD/2010 A.Y. 2007-08 ITO, WARD-1(2), BHAVANAGAR VS DEVANGBHAI H. VYAS, PLOT NO.6, SANTOSHI, ANJALI SOCIETY, HILLDRIVE, BHAVNAGAR. PAN: ACAPV 877OA. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI P.L. KUREEL, SR.D.R. ASSESSEE(S) BY : SHRI ANKIT TALSANIA, A.R. / DATE OF HEARING : 21/11/2013 / DATE OF PRONOUNCEMENT: 29/11/2013 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE ARISING FRO M THE ORDER OF LEARNED CIT(A)-XX, DATED 26.05.2010. THE MAIN GROUN D OF THE REVENUE, AS CHALLENGED BEFORE US, IS REPRODUCED BELOW: THE LD. CIT(A)-XX, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.8,41,000/- MADE BY THE AO TOWARDS GI FTS, RECEIVED BY ASSESSEE, TREATING THEM AS NON GENUINE & NOT SATISFACTORILY E XPLAINED U/S. 68 OF THE IT ACT, WITHOUT APPRECIATING THE FACTS OF THE CASE AND THE MATERIALS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3), DATED 29.12.2009 WERE THAT THE A SSESSEE IN INDIVIDUAL ITA NO.2465/ AHD/2010 ITO BHAVNAGAR VS. DEVANGBHAI H. VYAS. FOR A.Y. 2007-08 - 2 - CAPACITY IS IN THE BUSINESS OF BROKERAGE AND COMMIS SION. DURING THE COURSE OF SCRUTINY, THE AO NOTICED THAT THE APPELLA NT HAS CREDITED HIS CAPITAL ACCOUNT WITH THE AGGREGATE AMOUNTS OF RS.8, 41,000/- AS RECEIPT OF GIFTS IN CASH FROM HIS GRAND FATHER, GRAND MOTHER A ND MOTHER AND SAID GIFT AMOUNTS RECEIVED IN CASH WAS ALSO DEPOSITED IN HIS BANK ACCOUNT. ON BEING ASKED, THE APPELLANT FURNISHED (1) PHOTOCOPY OF DECLARATION OF GIFTS MADE BY THE RESPECTIVE DONORS; (2) PHOTOCOPY OF PAN / VOTER I.D. OF RESPECTIVE DONORS; AND (3) CASH RECEIPTS OF JEWE LLERY SOLD BY THE LADY DONORS IN SUPPORT OF FULFILLING THE THREE CONDITION S LAID DOWN UNDER THE PROVISIONS OF SECTION 68 OF THE ACT BEFORE THE AO. THE APPELLANT HAS, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, FILED REVISED COPY OF ACCOUNT I.E. BALANCE SHEET, PROFIT & LOSS ACCOUNT A ND CAPITAL ACCOUNT AND THEREBY THE DECLARED FURTHER INCOME OF RS.81,55 0/-. THUS, THE APPELLANT DISCLOSED REVISED TOTAL INCOME OF RS.1,80 ,910/- AFTER CLAIMING DEDUCTION UNDER CHAPTER-VIA OF THE ACT. THE AO HAS NOT CONSIDERED THE AFFIDAVITS FILED BY THE LADY DONORS AND AFFIDAVIT F ILED BY THE APPELLANT OF HAVING RECEIVED GIFT OF RS.4,00,000/- FROM HIS LATE GRAND FATHER AS SATISFACTORY EVIDENCE AND MADE ADDITION OF RS.8,41, 000/- AS NON GENUINE GIFTS TO THE TOTAL INCOME. 3. WHEN THE MATTER WAS CARRIED BEFORE LEARNED CIT(A ), IT WAS HELD AS UNDER: I HAVE CAREFULLY PERUSED THE ARGUMENTS AND WRITTEN SUBMISSIONS FILED BY THE APPELLANT AS WELL AS JUDGMENTS CITED AND RELIED UPO N BY THE APPELLANT AS ALSO ASSESSMENT ORDER OF THE ASSESSING OFFICER. IN THIS CASE THOUGH THE GIFT SHOWN TO HAVE BEEN GIVEN AND RECEIVED IS IN CASH BUT AS P ER PREPONDERANCE OF HUMAN PROBABILITIES, THE TRANSACTIONS OF GIFT SEEM TO BE GENUINE BECAUSE DEVANG HASMUKHBHAI VYAS, THE APPELLANT, IS THE ONLY SON OF HIS PARENTS AND HIS FATHER HASMUKHBHAI K VYAS, IS THE ONLY SON OF HIS GRAND PA RENTS. HIS GRAND FATHER IS THE RETIRED POLICE INSPECTOR AND HE HAS GIVEN GIFT OF RS.2.50 LACS OUT OF GOD JEWELLERY SOLD TO ONE RAJENDRASINH OF SAME VILLAGE WHOSE STATEMENT WAS ITA NO.2465/ AHD/2010 ITO BHAVNAGAR VS. DEVANGBHAI H. VYAS. FOR A.Y. 2007-08 - 3 - RECORDED BY THE AO AND THE PERSON ADMITTED THAT HE HAD PURCHASED GOLD ORNAMENTS FOR RS.2,50,000/- FROM KANTIBHAI P VYAS, THE GRAND FATHER OF THE APPELLANT, ON 01.06.2006. THE GRAND FATHER ALSO GAV E RS.1,50,000/- CASH GIFT OUT OF HIS OWN SAVINGS. NO OTHER GIFTS HAVE BEEN GI VEN IN HIS LIFETIME TO ANYONE TILL HE DIED ON 28.12.2007 AS CLARIFIED BY THE LD. AR. HE IS GETTING HIS RETIREMENT PENSION FROM STATE GOVERNMENT OF GUJARAT . THE GRAND MOTHER OF THE APPELLANT HAS GIFTED RS.2,7 0,000/- OUT OF CASH RECEIVED ON SALE OF HER GOLD ORNAMENTS TO ONE JAGDI SHSINH OF SAME VILLAGE, WHOSE STATEMENT WAS RECORDED BY THE AO AND WHO ADMI TTED THAT HE HAD PURCHASED GOLD ORNAMENTS FOR RS.2,70,000/- FROM KAN CHANBEN K. VYAS, THE GRANDMOTHER OF THE APPELLANT, ON 03.03.2007. CONSID ERING ALL FAMILY HISTORY AND THE PREPONDERANCE OF HUMAN PROBABILITIES THE FA CTS NARRATED CANNOT BE DENIED. THE AMOUNT OF RS.2,70,000/- CASH GIVEN BY W AY OF GIFT APPEARS TO BE GENUINE. SINCE THE APPELLANT IS THE ONLY GRAND SON OF GRAND PARENTS THEIR NATURAL LOVE AND AFFECTION INSPIRING THEM TO GIFT IN CASH HAS TO BE CONSIDERED WITH THAT ANGLE. THE MOTHER OF THE ASSESSEE HAS GIFTED RS.1,71,000/- ON 16.07.2006 OUT OF HER OWN CASH BALANCE ON HAND. SHE HAS BEEN FILING HER R ETURN OF INCOME. SHE IS RS.49,562/- DURING A.Y.2004-05. THE MOTHER OF THE A PPELLANT HAD HER OWN SAVINGS AND OUT OF IT SHE HAS GIVEN A CASH GIFT TO HER ONLY SON DEVANG HASMUKHBHAI VYAS TO COMMENCE BUSINESS ACTIVITIES OF CAR ACCESSORIES OUT OF NATURAL LOVE AND AFFECTION. CONSIDERING ALL FAMILY HISTORY AND THE PREPONDERANCE OF HUMAN PROBABILITIES THE CLAIM OF T HE APPELLANT CANNOT BE DENIED. THE AMOUNT OF RS.1,71,000/- CASH GIVEN BY W AY OF GIFT APPEARS TO BE GENUINE. THUS TAKING INTO CONSIDERATION THE ENTIRETY OF FACT S, I HOLD THAT ADDITION MADE BY THE A.O. TOWARDS GIFTS TREATING THEM AS NON GENU INE IS NOT JUSTIFIED. THE GIFTS ARE THEREFORE, TREATED AS EXPLAINED AND THE A DDITION OF RS.8,41,000/- IS HEREBY DELETED. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES A ND IN THE LIGHT OF COMPILATION FILED BEFORE US, ESPECIALLY THE AFFIDAV ITS, GIFTS DEED, ETC., WE ARE OF THE CONSIDERED OPINION THAT THERE WAS NO FAL LACY IN THE VIEW TAKEN BY LEARNED CIT(A). WE HAVE ALSO NOTED THAT SEVERAL CASE LAWS HAVE BEEN CITED BEFORE LEARNED CIT(A). EVEN BEFORE US RELIANC E HAS BEEN PLACED ON THOSE CASE LAWS. THUS, UNDER THE TOTALITY OF THE FA CTS AND CIRCUMSTANCES OF ITA NO.2465/ AHD/2010 ITO BHAVNAGAR VS. DEVANGBHAI H. VYAS. FOR A.Y. 2007-08 - 4 - THE CASE, WE HEREBY CONFIRM THE FINDINGS OF LEARNED CIT(A) ON FACTS AS WELL AS ON LAW AND DISMISS THIS GROUND OF THE REVEN UE. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 29/11/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD