Sunil Kumar Gupta, New Delhi V. ITO, New Delhi

ITA 2467/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65284 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 08-08-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 13-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: K SAMPATH ADV V RAJA KUMAR
• Keywords: Gift; Search and seizure; Period of limitation; Question of law; Wrong claim; Accommodation entries; Time period of passing order; Reason to believe; Reassessment proceedings
• Section: 143(3); 147; 68; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER ITA NO. 2464/DEL/2011 ASSESSMENT YEAR: 2001-2002 ASHISH GUPTA, 4/2, JAIDEV PARK, ROHTAK ROAD, NEW DELHI. PAN NO. AESPG3458G VS. ITO, WARD 25(3), NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO. 2465/DEL/2011 ASSESSMENT YEAR: 2001-2002 ANIL KUMAR GUPTA, 4/2, JAIDEV PARK, ROHTAK ROAD, NEW DELHI. PAN NO. AAIPG1236A VS. ITO, WARD 25(3), NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO. 2466/DEL/2011 ASSESSMENT YEAR: 2001-2002 ANIL KUMAR GUPTA & SONS HUF, 4/2, JAIDEV PARK, ROHTAK ROAD, NEW DELHI. PAN NO. AAAHA5498L VS. ITO, WARD 25(3), NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS. 2464 TO 2467/D/2011 2 ITA NO. 2467/DEL/2011 ASSESSMENT YEAR: 2001-2002 SUNIL KUMAR GUPTA, 4/2, JAIDEV PARK, ROHTAK ROAD, NEW DELHI. PAN NO. AAIPG1237B VS. ITO, WARD 25(3), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. K. SAMPATH, ADV./ V. RAJA KUMAR RESPONDENT BY : SATPAL SINGH, SR. DR DATE OF HEARING : 07/08/2012 DATE OF PRONOUNCEMENT : 30/08/2012 O R D E R ALL THESE APPEALS ARE FILED BY FOUR DIFFERENT ASSE SSEES AND THEY ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LD. CIT(A) DATED 10/02/2011 FOR A.Y. 2001-02. THE FACTS ARE IDENTICAL IN ALL THE FOUR A PPEALS. THEREFORE, FOR THE SAKE OF CONVENIENCE ALL THE FOUR APPEALS ARE BEING DISPOSED OF BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE WE REFER TO THE FACTS IN DETAIL OBTAINING IN ITA NO. 2464/D/11 (ASHISH GUPTA) . 2. BRIEF FACTS OF THE CASE ARE THAT THE AO HAS OBSE RVED IN THE ASSESSMENT ORDER THAT INFORMATION ABOUT ACCOMMODATI ON ENTRY WAS RECEIVED IN THE FORM OF CD FROM DIT(INV.)-1, NEW DE LHI THROUGH CIT-IX, NEW DELHI WHICH INCLUDED THE NAME OF THE ASSESSEE R EGARDING ACCOMMODATION ENTRY TO THE TUNE OF RS. 2,50,000/- R ECEIVED FROM NARENDRA KUMAR GUPTA VIDE INSTRUMENT NO. 15285 THROUGH INNOV ATIVE, WAZIRPUR, DELHI ON 04/01/2001 AND THE SAID AMOUNT HAD BEEN CR EDITED INTO THE ASSESSEES BANK ACCOUNT NO. 11917 IN INDIAN OVERSEA S BANK, PUNJABI ITA NOS. 2464 TO 2467/D/2011 3 BAGH, NEW DELHI. THEREFORE, THE AO ISSUED NOTICE U /S 148 RECORDING FOLLOWING REASONS: - SHRI ASHISH GUPTA A.Y. 2001-02 AN INFORMATION ABOUT ACCOMMODATION ENTRIES TAKEN BY DIFFERENT PERSONS/ASSESSES HAS BEEN RECEIV ED IN THE FORM OF CD FROM THE DIT(INV.)-1, NEW DELHI THRO UGH THE CIT DELHI-IX VIDE F.NO. CIT-IX/HQRS/2006-07/257 6 DATED 22.03.2007 DULY FORWARDED BY THE ADDL. CIT RANGE-25 VIDE F.NO. ADDL. CIT/R-25/06-07/1368 DATED 22.03.2007 WHICH ALSO INCLUDE THE NAME OF THE ASSES SEE IN QUESTION. THE ASSESSEE HAS TAKEN ACCOMMODATION ENTRY TO THE TUNE OF RS. 250000/-, VIDE INSTRUMENT NO. 15285 ON 04.01.2001, FROM NARINDER KUMAR GUPTA DRAWN ON INNOVATIVE, WAZIR PUR DELHI (A/C NO. 809) AND THE S AID AMOUNT HAS BEEN CREDITED INTO ASSESSEES BANK ACCOU NT NO. 11917 IN INDIAN OVERSEAS BANK, PUNJABI BAGH, NE W DELHI. I HAVE, THEREFORE, REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX TO THE EXTENT MENTIONED ABOVE HAS ESCAPED ASSESSMENT, HENCE, NOTICE U/S 148 OF I.T. A CT IS PROPOSED TO BE ISSUED. 3. IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSE E SUBMITTED THAT RS. 2,50,000/- WAS RECEIVED FROM SHRI NARENDER KUMA R GUPTA AS GIFT. THE AO REQUIRED THE ASSESSEE TO PRODUCE SHRI NARENDER K UMAR GUPTA FOR VERIFICATION AND ESTABLISHING GENUINENESS OF GIFT G IVEN BY HIM. THE CASE WAS ADJOURNED FROM TIME TO TIME ON 25/11/08 AGAIN T HE CASE WAS ADJOURNED TO 2/12/08. IN THE MEAN TIME THE AO ALSO ISSUED SU MMON TO SHRI NARENDER KUMAR GUPTA FOR ATTENDING HIS OFFICE. HOWEVER, SUM MON WAS RECEIVED BACK WITH THE POSTAL REMARK NO SUCH PERSON. THE AO HAS OBSERVED THAT ON 2/12/08, THE AR OF THE ASSESSEE WAS AGAIN ASKED TO PRODUCE THE DONOR FOR CROSS VERIFICATION AND CASE WAS ADJOURNED FOR 1 0/12/08. ON 10/12/08 AGAIN THE CASE WAS ADJOURNED TO 22/12/08 ON THE REQ UEST OF THE ASSESSEE. HOWEVER, ON 22/12/08 NONE ATTENDED NOR THE DONOR WA S PRODUCED FOR CROSS VERIFICATION. IN THE BACKDROP OF THESE FACTS, THE AO MADE AN ADDITION OF RS. 2,50,000/- FOR THE FOLLOWING REASONS: - ITA NOS. 2464 TO 2467/D/2011 4 I) THE GIFT HAD BEEN ALLEGEDLY GIVEN BY SH. NAREND ER KUMAR GUPTA OUT OF NATURAL LOVE AND AFFECTION. HOWEVER, SINCE ASSE SSEE FAILED TO PRODUCE THE DONOR, THE RELATIONSHIP OF THE ASSESSEE WITH THE DONOR COULD NOT BE ASCERTAINED. II) THERE WAS NO REASON/PURPOSE/MOTIVE FOR MAKING G IFT TO THE ASSESSEE. III) THE DONOR HAD FILED ITS RETURN OF INCOME SHOWI NG TOTAL INCOME AT RS. 1,03,330/- ONLY FROM ALL SOURCES. THEREFORE, IT WA S NOT CLEAR AS TO HOW ONE PERSON WHO IS HAVING MEAGER INCOME WHICH IS NOT SUFFICIENT FOR LIVELIHOOD COULD MAKE A GIFT OF LARG E AMOUNT OF RS. 2,50,000/- TO ANOTHER UNKNOWN PERSON. IV) OTHER FAMILY MEMBERS ALSO RECEIVED GIFTS FROM T HE PERSONS AS MENTIONED BELOW: - 1. SHRI ANIL KUMAR GUPTA RECEIVED GIFT OF RS. 200 000/- FROM SH. AJAY BANSAL. 2. SLHRI SUNIL KUMAR GUPTA RECEIVED A GIFT OF RS. 100000/- FROM SHRI ASHOK KUMAR SINGHAL AND RS. 100000/- FROM SHRI BRAHAM DUTT. 3. M/S ANIL KUMAR GUPTA & SONS (HUF) THOUGH ITS KAR TA SHRI ANIL KUMAR GUPTA RECEIVED A GIFT OF RS. 100000/- FROM SHRI KESO RAM GUPTA. V) THE AO CONCLUDED THAT GIFTS WERE NOT GENUINE AND WERE BOGUS FOR INTRODUCING ASSESSES OWN UNDISCLOSED INCOME IN THE BOOKS OF ACCOUNT IN THE SHAPE OF GIFT. VI) THE ASSESSEE FAILED TO DISCHARGE ITS ONUS OF EX PLAINING CREDIT APPEARING IN ITS BOOKS AND, THEREFORE, HE MADE ADDI TION UNDER SECTION 68. 4. BEFORE LD. CIT(A), THE ASSESSEE HAD ASSAILED INI TIATION OF REASSESSMENT PROCEEDINGS AND ALSO DISPUTED THE FIND INGS OF AO ON MERITS. LD. CIT(A), AFTER DETAILED DISCUSSION ON BOTH THE I SSUES, DISMISSED THE ASSESSEES APPEAL. ITA NOS. 2464 TO 2467/D/2011 5 5. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFOR E ME AND HAS TAKEN FOLLOWING GROUNDS OF APPEAL: - 1. THAT ACTION OF THE ASSESSING AUTHORITY FOR INI TIATION OF RE ASSESSMENT PROCEEDING U/S 147/148 HAS BEEN AGAINST THE LAW AND FACTS OF THE CASE AND ACTION HA S BEEN BEYOND THE LIMITATION PERIOD AND LEARNED COMMISSIONER OF THE INCOME TAX APPEAL XXIV NEW DELHI HAS ERRED IN DISMISSING OUR GROUND OF APPEAL. 2. THAT ASSESSING AUTHORITY HAS ERRED IN MAKING AN ADDITION OF RS. 250000/- (RS. TWO LACS FIFTY THOUSAND ONLY) U/S 68 OF THE INCOME TAX 1961 IN RESPECT OF A GIFT OF RS. 2,50,000/- RECEIVED BY THE ASSESSEE FROM SH. NARENDER KUMAR GUPTA AND LEARNED CIT APPEALS XXIV NEW DELHI HAS ERRED IN CONFIRMING THE ADDITION. 6. APROPOS GROUND NO. 1, LD. COUNSEL SUBMITTED THAT AO ISSUED NOTICE U/S 148 ONLY ON THE BASIS OF INFORMATION WHICH TRIC KLED DOWN TO HIM THROUGH THREE HANDS WITHOUT VERIFICATION OF THE SAME. THER EFORE, THERE WAS NO BELIEF OF THE AO REGARDING ESCAPEMENT OF INCOME BEFORE REC ORDING OF REASONS. LD. COUNSEL SUBMITTED THAT DIT ONLY COMMUNICATED HI S OPINION IN THE FORM OF INFORMATION BUT THE SAME COULD NOT BE A BASIS FO R COMING TO A CONCLUSION THAT THE GIFT WAS ACTUALLY ASSESSEES INCOME. HE S UBMITTED THAT GIFT/PER SE IS NOT INCOME. HE SUBMITTED THAT FOR ACCOMMODATION ENTRY THERE HAS TO BE EVIDENCE BEFORE THE AO THAT ASSESSEE HAD GIVEN THE AMOUNT IN LIEU OF WHICH IT TOOK CHEQUE IN THE GARB OF GIFT. HE SUBMI TTED THAT INCIDENCE OF ACCOMMODATION ENTRY REMAINED UNVERIFIED BEFORE RECO RDING OF REASONS. HE SUBMITTED THAT AO ARBITRARILY JUMPED TO THE CONCLUS ION THAT THE AMOUNT RECEIVED AS GIFT WAS ASSESSEES INCOME WITHOUT PROP ER VERIFICATION. THUS, IN SUM AND SUBSTANCE THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE IS THAT THE REASONS WERE RECORDED MECHANICALLY BY AO ON THE BASIS OF INFORMATION WITHOUT FULFILLING THE CONDITION OF VERIFYING THE I NFORMATION FOR FORMING REQUISITE BELIEF REGARDING ESCAPEMENT OF INCOME. I N SUPPORT OF HIS CONTENTION, LD. COUNSEL RELIED ON THE DECISION OF H ONBLE DELHI HIGH COURT IN ITA NOS. 2464 TO 2467/D/2011 6 THE CASE OF CIT VS. VALUE CAPITAL SERVICES PVT. LTD ., 307 ITR 334 AND POINTED OUT THAT AT PAGE 336 HONBLE DELHI HIGH COU RT HAS OBSERVED AS UNDER: - 7. IN ANY CASE, WHAT IS CLINCHING IS THE ADDITIONAL BURDEN ON THE REVENUE. IT MUST SHOW THAT EVEN IF T HE APPLICANT DOES NOT HAVE THE MEANS TO MAKE THE INVESTMENT, THE INVESTMENT MADE BY THE APPLICANT AC TUALLY EMANATED FROM THE COFFERS OF THE ASSESSEE SO AS TO ENABLE IT TO BE TREATED AS THE UNDISCLOSED INCOME OF THE A SSESSEE. THIS HAS NOT BEEN DONE IN SO FAR AS THE PRESENT CAS E IS CONCERNED AND THAT HAS BEEN NOTED BY THE TRIBUNAL A LSO. 7. HE SUBMITTED THAT IN THE PRESENT CASE ALSO THE A O HAS NOT ESTABLISHED THAT THE MONEY WAS GIVEN BY ASSESSEE FR OM ITS OWN COFFERS. LD. COUNSEL FURTHER REFERRED TO THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SFIL STOCK BROKING LTD., 325 IT R 285, WHEREIN IT WAS HELD THAT WHERE ON BASIS OF INFORMATION GIVEN BY DE PUTY DIRECTOR OF INCOME TAX (INV.), THE AO REOPENED ASSESSMENT AND FROM SO CALLED REASONS, IT WAS NOT AT ALL DISCERNIBLE AS TO WHETHER AO HAD APPLIED HIS MIND TO INFORMATION AND INDEPENDENTLY ARRIVED AT A BELIEF THAT, ON BASI S OF MATERIAL WHICH HE HAD BEFORE HIM, INCOME HAD ESCAPED ASSESSMENT, REOP ENING OF ASSESSMENT WAS NOT JUSTIFIED. LD. COUNSEL SUBMITTE D THAT IN THE PRESENT CASE ALSO THE AO DID NOT APPLY HIS MIND TO INFORMAT ION FOR INDEPENDENTLY ARRIVING AT A CONCLUSION THAT INCOME HAD ESCAPED AS SESSMENT. LD. COUNSEL FURTHER REFERRED TO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF SARTHAK SECURITIES COMPANY PVT. LTD. VS. IT O, 329 ITR 110, WHEREIN IT HAS BEEN HELD THAT FOR INITIATION OF PRO CEEDINGS U/S 147, THERE MUST BY RELEVANT MATERIAL ON RECORD, ON WHICH A REA SONABLE PERSON CAN FORM REQUISITE BELIEF, REGARDING ESCAPEMENT OF INCO ME. IN THIS CASE, THE AO ISSUED A NOTICE U/S 148 ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING THAT ASSESSEE HAD RECEIVED ACCOM MODATION ENTRIES FROM FOUR COMPANIES AS SHARE APPLICATION MONEY. HONBLE DELHI HIGH COURT HAS, INTER-ALIA, OBSERVED AS UNDER: - ITA NOS. 2464 TO 2467/D/2011 7 23. THE OBTAINING FACTUAL MATRIX HAS TO BE TESTED ON THE ANVIL OF THE AFORESAID PRONOUNCEMENT OF LAW. I N THE CASE AT HAND, AS IS EVINCIBLE, THE ASSESSING OFFICE R WAS AWARE OF THE EXISTENCE OF FOUR COMPANIES WITH WHOM THE ASSESSEE HAD ENTERED INTO TRANSACTION. BOTH THE OR DERS CLEARLY EXPOSIT THAT THE AO WAS MADE AWARE OF THE SITUATION BY THE INVESTIGATION WING AND THERE IS NO MENTION THAT THESE COMPANIES ARE FICTITIOUS COMPANI ES. NEITHER THE REASON IN THE INITIAL NOTICE NOR THE COMMUNICATION PROVIDING REASONS REMOTELY INDICATE INDEPENDENT APPLICATION OF MIND. TRUE IT IS, AT TH AT STAGE, IT IS NOT NECESSARY TO HAVE THE ESTABLISHED FACT OF ESCAPEMENT OF INCOME, BUT WHAT IS NECESSARY IS THAT THERE IS RELEVANT MATERIAL ON WHICH A REASONABLE PERSON C OULD HAVE FORMED THE REQUISITE BELIEF. TO ELABORATE, TH E CONCLUSIVE PROOF IS NOT GERMANE AT THIS STAGE BUT T HE FORMATION OF BELIEF MUST BE ON THE BASE OR FOUNDATI ON OR PLATFORM OF PRUDENCE WHICH A REASONABLE PERSON IS REQUIRED TO APPLY. AS IS MANIFEST FROM THE PERUSAL OF THE SUPPLY OF REASONS AND THE ORDER OF REJECTION OF OBJECTIONS, THE NAMES OF THE COMPANIES WERE AVAILAB LE WITH THE AUTHORITY. THEIR EXISTENCE IS NOT DISPUTE D. WHAT IS MENTIONED IS THAT THESE COMPANIES WERE USED A CONDUITS. IN THAT VIEW OF THE MATTER, THE PRINCIPL E LAID DOWN IN LOVELY EXPORTS (P) LTD.S CASE (SUPRA) GETS SQUARELY ATTRACTED. THE SAME HAS NOT BEEN REFERRED TO WHILE PASSING THE ORDER OF REJECTION. THE ASSESSEE IN HIS OBJECTIONS HAD CLEARLY STATED THAT THE COMPANIES HA D BANK ACCOUNTS AND PAYMENTS WERE MADE TO THE ASSESSE E COMPANY THROUGH BANKING CHANNEL. THE IDENTITY OF T HE COMPANIES WAS NOT DISPUTED. UNDER THESE CIRCUMSTAN CES, IT WOULD NOT BE APPROPRIATE TO REQUIRE THE ASSESSE TO GO THROUGH THE ENTIRE GAMUT OF PROCEEDINGS. IT IS TOT ALLY UNWARRANTED. 8. LD. COUNSEL FURTHER SUBMITTED THAT LD. CIT(A) HA S RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF AC IT VS. RAJESH JHAWERI STOCK BROKERS P. LTD., 291 ITR 500 BUT IN THE SAID CASE ALSO IT HAS BEEN HELD THAT THERE HAS TO BE REASON FOR FORMING BELIEF REGARDING ESCAPEMENT OF INCOME. ITA NOS. 2464 TO 2467/D/2011 8 9. LD. DR SUBMITTED THAT THERE WAS NOTHING WRONG IN INTIMATING OF INFORMATION TO THE AO THROUGH PROPER CHANNEL. HE S UBMITTED THAT THERE WAS NO OTHER WAY OF BRINGING THE INFORMATION TO THE AO S NOTICE. HE FURTHER SUBMITTED THAT REASONS WERE PROPERLY RECORDED AFTER DUE APPLICATION OF MIND. LD. DR SUBMITTED THAT IN CASE OF ACCOMMODATI ON ENTRY IT IS NOT PRACTICABLE TO ESTABLISH THAT ASSESSEE HAD GIVEN CA SH IN LIEU OF AMOUNT RECEIVED IN THE GARB OF GIFT UNLESS THE DONOR WAS E XAMINED. HE SUBMITTED THAT DECISION IN THE CASE OF RAJESH JHAWERI (SUPRA) IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE. 10. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE RECORD OF THE CASE. 11. THE MAIN THRUST OF ARGUMENT OF LD. COUNSEL FOR THE ASSESSEE IS THAT THE AO DID NOT APPLY HIS MIND TO THE INFORMATION RE CEIVED BY HIM. SUBMISSION OF LD. COUNSEL IS THAT BEFORE CONSTITUTI NG THE REQUISITE BELIEF, AS CONTEMPLATED U/S 147 FOR RECORDING REASONS AO SHOUL D HAVE APPLIED HIS MIND TO THE INFORMATION AND SHOULD NOT HAVE ACTED M ECHANICALLY ON THE BASIS OF INFORMATION RECEIVED BY HIM. THE SUBMISSI ON IS THAT MERE GIFT PER SE IS NOT INCOME AND IF THE DEPARTMENT ALLEGED A PA RTICULAR ENTRY IN THE NATURE OF ACCOMMODATION ENTRY THEN THE ONUS WAS ON THE DEPARTMENT TO ESTABLISH THAT THE FUNDS EMANATED FROM THE COFFERS OF THE ASSESSEE FOR TAKING ACCOMMODATION ENTRIES. IN ORDER TO EXAMINE THE SUBMISSIONS OF LD. COUNSEL FOR THE ASSESSEE, IT IS NECESSARY TO EXAMIN E THE REASONS RECORDED BY AO WHICH HAVE BEEN REPRODUCED EARLIER. 12. IN THE FIRST PARA THE AO HAS REFERRED TO THE SO URCE FROM WHICH HE RECEIVED THE INFORMATION. ADMITTEDLY, UPTO THIS ST AGE IT CANNOT BE SAID THAT MERELY ON THE BASIS OF THIS INFORMATION, THE AO COU LD CONSTITUTE THE REQUISITE BELIEF ON WHICH A REASONABLE PERSON COULD REACH THE CONCLUSION THAT THERE WAS ESCAPEMENT OF INCOME. HOWEVER, THE SECOND PARA OF THE REASONS REFERS TO THE FACTS ON THE BASIS OF WHICH A O FORMED THE REQUISITE ITA NOS. 2464 TO 2467/D/2011 9 BELIEF REGARDING ESCAPEMENT OF INCOME. IT IS TRUE THAT ALL THESE FACTS CAME TO HIS KNOWLEDGE FROM THE INFORMATION WHICH HE RECE IVED BUT HE HAS RECORDED A POSITIVE FINDING THAT THE ASSESSEE HAD T AKEN ACCOMMODATION ENTRIES TO THE TUNE OF RS. 2,50,000/- AND HAS GIVEN ALL THE DETAILS WHERE THIS AMOUNT WAS DEPOSITED. THESE AVERMENTS CLEARLY SHOW THAT AO HAD APPLIED HIS MIND TO THE INFORMATION, WHICH HE RECEI VED, BEFORE RECORDING REASONS. THE AO SPEAKS HIS MIND THROUGH REASONS RE CORDED BY HIM AS WAS HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF HINDUSTAN LIVER LTD. VS. R.B. VADEKAR, 26 ITR 332. IN THE CASE OF RAJESH JHAWERI 291 ITR 500 HONBLE SUPREME COURT, INTER-ALIA, OBSERVED THA T THERE MUST BE A BELIEF WHICH MUST BE ARRIVED AT BY THE AO AND THAT THERE M UST BE SOME MATERIAL BEFORE THE AO SO AS TO ARRIVE AT SUCH A BELIEF IN O RDER THAT THE EXPRESSION REASON TO BELIEVE IS TRIGGERED. IN THE PRESENT MA TERIAL WAS IN THE FORM OF INFORMATION BEFORE AO ON WHICH AO APPLIED HIS MIND FOR CONSTITUTING REQUISITE BELIEF. 13. LD. COUNSEL HAS RELIED ON THE DECISION OF HONB LE DELHI HIGH COURT IN CIT VS. SFIL STOCK BROKING LTD. IN THAT CASE THE R EASONS RECORDED READ AS UNDER: - INFORMATION RECEIVED FROM DEPUTY DIRECTOR OF INCOM E- TAX (INV.) 107, SUSHANT LOK, GURGAON VIDE HIS LETTE R NO. DDIT (INV)/GGN/02-03/271 DATED MARCH 17, 2003 RECEIVED IN MY OFFICE ON MARCH 25, 2003, THAT ONE O F MY ASSESSES M/S SFIL STOCK BROKING LIMITED HAD MADE BOGUS CLAIM OF LONG-TERM GAINS SHOWN AS EARNED ON ACCOUNT OF SALE/PURCHASE OF SHARES TAKEN THROUGH BA NK ACCOUNT NO. CA-3097, CORPORATION BANK, KAROL BAGH, NEW DELHI IN THE NAME OF R.K. AGGARWAL & COMPANY BY OBTAINING ENTRIES FOR RS. 6,00,000, RS. 7,00,000 AN D RS. 7,70,000 ON FEBRUARY 28, 1998, FEBRUARY 28, 1998 AN D MARCH 1, 1998 RESPECTIVELY. HE AHS DIRECTED THE ASSESSING OFFICER TO GET NOTICES ISSUED U/S 148. SUBSEQUENTLY, I HAVE BEEN DIRECTED BY THE ADDL. CIT -R8, NEW DELHI VIDE HIS LETTER NO. ADDL. CIT R-8/2002-03 /572 ITA NOS. 2464 TO 2467/D/2011 10 DATED AUGUST 26, 2003 TO INITIATE PROCEEDINGS U/S 1 48 IN RESPECT OF CASES PERTAINING TO THIS WARD. THUS, I HAVE SUFFICIENT INFORMATION IN MY POSSESSIO N TO ISSUE NOTICE U/S 148 IN THE CASE OF M/S SFIL STOCK BROKING LTD. ON THE BASIS OF REASONS RECORDED AS AB OVE. 14. AFTER CONSIDERING THESE REASONS HONBLE DELHI H IGH COURT OBSERVED IN PARA 9 & 10 AS UNDER: - 9. IN THE PRESENT CASE, WE FIND THAT THE FIRST SENTEN CE OF THE SO-CALLED REASONS RECORDED BY THE ASSESSING OFFICER IS MERE INFORMATION RECEIVED FROM THE DEPUT Y DIRECTOR OF INCOME-TAX (INVESTIGATION). THE SECOND SENTENCE IS A DIRECTION GIVEN BY THE VERY SAME DEPU TY DIRECTOR OF INCOME-TAX (INVESTIGATION) TO ISSUE A N OTICE UNDER SECTION 148 AND THE THIRD SENTENCE AGAIN COMP RISES OF A DIRECTION GIVEN BY THE ADDITIONAL COMMISSIONER OF INCOME-TAX TO INITIATE PROCEEDINGS U/S 148 IN RESPE CT OF CASES PERTAINING TO THE RELEVANT WARD. THESE THREE SENTENCES ARE FOLLOWED BY THE FOLLOWING SENTENCE, W HICH IS THE PORTION OF THE SO-CALLED REASONS: THUS, I HAVE SUFFICIENT INFORMATION IN MY POSSESSION TO ISSUE NOTICE U/S 148 IN THE CASE OF M/S SFIL STOCK BROKING LTD. ON THE BASIS OF REASONS RECORDED AS ABOVE. 10. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSING OFFICER REFERRED TO THE INFORMATION AND THE TWO DIR ECTIONS AS REASONS ON THE BASIS OF WHICH HE WAS PROCEEDIN G TO ISSUE NOTICE U/S 148. WE ARE AFRAID THAT THESE CAN NOT BE THE REASONS FOR PROCEEDING U/S 147/148 OF THE SAID ACT. THE FIRST PART IS ONLY AN INFORMATION AND THE SECON D AND THE THIRD PARTS OF THE BEGINNING PARAGRAPH OF THE S O- CALLED REASONS ARE MERE DIRECTIONS. FROM THE SO-CA LLED REASONS, IT IS NOT AT ALL DISCERNIBLE AS TO WHETHER THE AO HAD APPLIED HIS MIND TO THE INFORMATION AND INDEPENDENTLY ARRIVED AT A BELIEF THAT, ON THE BASI S OF THE MATERIAL WHICH HE HAD BEFORE HIM, INCOME HAD ESCAPE D ASSESSMENT. CONSEQUENTLY, WE FIND THAT THE TRIBUNA L HAS ARRIVED AT THE CORRECT CONCLUSION ON THE FACTS. TH E LAW IS WELL SETTLED. THERE IS NO SUBSTANTIAL QUESTION OF LAW WHICH ARISES FOR OUR CONSIDERATION. ITA NOS. 2464 TO 2467/D/2011 11 15. HOWEVER, IN THE PRESENT CASE, AS NOTED EARLIER, THE AO HAS RECORDED SPECIFIC REASONS FOR CONSTITUTING REQUISITE BELIEF REGARDING ESCAPEMENT OF INCOME. THE SECOND DECISION RELIED UPON BY LD. COU NSEL IS IN THE CASE OF SARTHAK SECURITIES COMPANY PVT. LTD. VS. ITO, 329 I TR 110, WHEREIN THE REASONS RECORDED READ AS UNDER: - M/S SARTHAK SECURITIES (P) LTD. ASSESSMENT YEAR 2003-04 19.3.2000 INFORMATION WAS RECEIVED FROM THE OFFICE OF THE ADDL. DIT (INV.) UNIT-V THAT M/S SARTHAK SECURITIES (P) LTD. HAD RECEIVED BOGUS ACCOMMODATION ENTRIES DURING THE F.Y. 2002-03 RELEVANT TO AY 2003-04 AS PER DETAILS PLACED CONTRA . BENEFICIARY NAME BENEFICIARY BANK BENEFICIARY BRANCH VALUE OF ENTRY INSTRUMENT NO. BY WHICH ENTRY TAKEN DATE ON WHICH ENTRY TAKEN NAME OF A/C HOLDER OF ENTRY GIVING A/C BANK FROM WHICH ENTRY GIVEN BRANCH OF ENTRY GIVING BANK SARTHAK SECURITIES P. LTD. OBC SAKET 25,00,000 17.12.02 NISHANT FINVEST SBBJ NRR DO DO DO 25,00,000 18.9.02 DINANATH LUHHARI WAL SPINNING MILL SBP DG DO DO DO 25,00,000 16.12.02 K.R. FINCAP P. LTD. SBBJ NRR DO DO DO 3,00,000 12.3.03 DIVISION TRADING P. LTD. BOR ROHTAK ROAD ACCORDING TO THE INFORMATION RECEIVED FROM THE DIT(INV.) THE ACCOMMODATION ENTRIES ARE RECEIVED AS SHARE APPLICATION MONEY OR AS UNSECURED LOAN. THE ASSESSEES BALANCE SHEET AS ON 31.03.2003 SHOWED THAT THERE IS INTRODUCTION OF SHARE CAPITAL OF RS. 2,84,800 AND SHARE PREMIUM OF RS. 8,65,000. IN THIS CASE RETURN OF INCOME FOR THE AY 2003-04 WA S FILED ON DECLARING INCOME OF RS. 15,360 AND AS PER RECORDS ASSESSMENT HAS NOT BEEN COMPLETED U/S 143(3) OF THE INCOME-TAX ACT. AS THE ASSESSEE HAD RECEIVED BOGUS ACCOMMODATION ENTRY OF RS. 10,50,000 DURING THE AY 2003-04, I HAV E REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. ITA NOS. 2464 TO 2467/D/2011 12 16. AFTER CONSIDERING THE AFORESAID REASONS, THE HO NBLE DELHI HIGH COURT QUASHED THE REASSESSMENT PROCEEDINGS BECAUSE THE OR DER OF THE AO DID NOT REFLECT ANY INDEPENDENT APPLICATION OF MIND TO THE INFORMATION RECEIVED. HONBLE DELHI HIGH COURT OBSERVED THAT FROM THE INF ORMATION RECEIVED FROM THE INVESTIGATION WING, IT WAS CLEAR THAT THERE WAS NO MENTION THAT THE ALLEGED COMPANIES USED AS CONDUIT WERE FICTITIOUS C OMPANIES. HONBLE DELHI HIGH COURT OBSERVED THAT SINCE THE EXISTENCE OF COMPANIES WAS NOT DISPUTED, THE PRINCIPLE LAID DOWN IN LOVELY EXPORTS PVT. LTD. CASE GOT SQUARELY ATTRACTED. THE SAID DECISION HAD NOT BEEN REFERRED TO WHILE PASSING THE ORDER OF REJECTION BY AO TO THE OBJECTI ONS RAISED BY ASSESSEE AGAINST THE REASONS RECORDED. THUS, THE AO HAD NOT APPLIED HIS MIND BEFORE CONSTITUTING THE REQUISITE BELIEF TO THE LAW APPLICABLE TO THE FACTS OF THE CASE. HOWEVER, IN THE PRESENT CASE, AS NOTED E ARLIER, THE AO HAS RECORDED A POSITIVE FINDING REGARDING AN ACCOMMODAT ION ENTRY BEING RECEIVED BY ASSESSEE. THEREFORE, THE DECISIONS REL IED UPON BY THE LD. COUNSEL FOR THE ASSESSEES ARE NOT APPLICABLE TO THE FACTS OF THE CASE. IN MY OPINION, LD. CIT(A) HAS RIGHTLY RELIED ON THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAWERI, WHEREIN IT HAS BEEN, INTER-ALIA, HELD THAT THE SCOPE AND EFFECT OF SECTION 147 AS SUBSTIT UTED W.E.F. APRIL 1, 1989, AS ALSO SECTIONS 148 TO 152 ARE SUBSTANTIALLY DIFFE RENT FROM THE PROVISIONS AS THEY STOOD PRIOR TO SUCH SUBSTITUTION. IT WAS, INTER-ALIA, HELD THAT AFTER THE SUBSTITUTION OF SECTION 147 W.E.F. APRIL 1, 1989, I F THE AO, FOR WHATEVER REASON, HAS REASON TO BELIEVE THAT INCOME HAS ESCAP ED ASSESSMENT, IT CONFERS JURISDICTION TO REOPEN THE ASSESSMENT. CLA USE (C) TO EXPLANATION 2 TO SEC. 147 REFERS TO DEEMED ESCAPEMENT, WHERE INCO ME CHARGEABLE TO TAX HAS BEEN UNDER ASSESSED. LD. COUNSEL HAS SUBMITTED THAT MERE RECEIPT OF GIFT IS NOT INCOME UNLESS IT IS ESTABLISHED THAT TH E GIFT HAS BEEN TAKEN BY ASSESSEE BY USING ITS OWN FUNDS. THE SUBMISSION IS THAT IT MUST BE FIRST ESTABLISHED THAT AMOUNT ORIGINATED FROM THE COFFERS OF THE ASSESSEE AND WAS RECEIVED BACK IN THE GARB OF GIFT. HOWEVER, GI FTS SIMPLICITER CANNOT BE ITA NOS. 2464 TO 2467/D/2011 13 TREATED AS INCOME. THE SUBMISSION IS THAT REASONS R ECORDED SHOULD INDICATE REGARDING ESCAPEMENT OF INCOME AND UNLESS AO ESTABLISHES THAT THE TRANSACTION IS IN THE FORM OF ACCOMMODATION ENT RY, THE REASSESSMENT PROCEEDINGS CANNOT BE INITIATED. IN THIS REGARD, I MAY OBSERVE THAT AO HAD RECEIVED INFORMATION REGARDING ACCOMMODATION ENTRY BEING RECEIVED BY THE ASSESSEE AND HE HAD APPLIED HIS MIND TO THE SAID IN FORMATION. IT IS WELL SETTLED LAW THAT AT THE STAGE OF RECORDING REASONS, THE AO HAS TO FORM A PRIMA-FACIE BELIEF REGARDING ESCAPEMENT OF INCOME A ND IS NOT REQUIRED TO REACH A CONCLUSIVE FINDING REGARDING ESCAPEMENT OF INCOME. AFTER RECORDING REASONS, AO REOPENS THE ASSESSMENT AND AF TER MAKING DETAILED ENQUIRY ARRIVES AT A CONCLUSION. THEREFORE, THIS P LEA OF ASSESSEE THAT BEFORE RECORDING REASONS, AO SHOULD HAVE REACHED A FINDING THAT AMOUNT ORIGINATED FROM THE COFFERS OF THE ASSESSEE CANNOT BE ACCEPTED. THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF VALUE SERVICES PVT. LTD. IS DISTINGUISHABLE ON FACTS WHICH I WILL DISCUSS IN SUBSEQUENT PARAS, WHILE CONSIDERING MERITS OF THE CASE. THE SUFFICIENCY OF REASONS CANNOT BE QUESTIONED BY THE COURT AND IT IS ONLY TO BE EXAMIN ED WHETHER THERE WAS PRIMA-FACIE REASON FOR CONSTITUTION OF REQUISITE BE LIEF REGARDING ESCAPEMENT OF INCOME. I, THEREFORE, UPHOLD THE ORDER OF LD. C IT(A) IN HOLDING THAT THE REASSESSMENT PROCEEDINGS WERE VALID AND IN ACCORDAN CE WITH LAW. 17. NOW COMING TO THE MERITS OF THE CASE, THE FIRST PLEA OF ASSESSEE IS THAT AO ARBITRARILY JUMPED TO THE CONCLUSION THAT A SSESSEE HAD TAKEN ACCOMMODATION ENTRY BECAUSE OTHER FAMILY MEMBERS AL SO RECEIVED GIFTS FROM DIFFERENT PERSONS. LD. COUNSEL SUBMITTED THAT AO DID NOT DISCHARGE THE ONUS OF PROVING THAT AMOUNT ACTUALLY EMANATED F ROM COFFERS OF ASSESSEE FOR OBTAINING GIFT BEFORE CONSIDERING THE IMPUGNED AMOUNT AS UNDISCLOSED INCOME. IN THIS REGARD, LD. COUNSEL RE LIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. VAL UE CAPITAL SERVICES PVT. LTD., 307 ITR 334. ITA NOS. 2464 TO 2467/D/2011 14 18. LD. COUNSELS NEXT SUBMISSION IS THAT THE AO WR ONGLY INVOKED SECTION 68 BECAUSE ASSESSEE WAS NOT MAINTAINING ANY BOOKS O F ACCOUNT. HE SUBMITTED THAT BANK STATEMENT IS NOT BOOKS OF ACCOU NT AND, THEREFORE, DEPOSITS IN THE SAID BANK STATEMENT CANNOT BE ADDED U/S 68. IN THIS REGARD, LD. COUNSEL RELIED ON THE DECISION OF HONBLE BOMBA Y HIGH COURT IN THE CASE OF CIT VS. BHAI CHAND H. GANDHI, 141 ITR 67 AN D ALSO ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CB I VS. V.C. SHUKLA (1998) SCC 410. 19. THE NEXT LIMB OF LD. COUNSELS ARGUMENT IS THAT NO PROPER OPPORTUNITY WAS AFFORDED TO THE ASSESSEE FOR PRODUCING SH. NARE NDER KUMAR GUPTA. LD. COUNSEL SUBMITTED THAT WHEN THE SUMMONS SENT TO NARENDER KUMAR GUPTA WERE RECEIVED BACK WITH THE POSTAL REMARK NO SUCH PERSON, THE AO SHOULD HAVE INQUIRED ABOUT THE NEW ADDRESS OF SH. N ARENDER KUMAR GUPTA FOR SENDING THE SUMMONS. 20. LD. DR SUBMITTED THAT AO DISCHARGED ITS ONUS BY GIVING SUFFICIENT OPPORTUNITY TO ASSESSEE TO PRODUCE SH. NARENDER KUM AR GUPTA. HE SUBMITTED THAT PASS BOOK COMES WITHIN THE AMBIT OF BOOKS OF ACCOUNT BECAUSE BANK MAINTAINS THE ACCOUNT ON BEHALF OF ASS ESSEE. HE SUBMITTED THAT WHEN GIFT HAD BEEN ALLEGEDLY GIVEN OUT OF NATU RAL LOVE AND AFFECTION, THE ASSESSEE WAS REQUIRED TO PRODUCE THE DONOR. 21. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORD OF THE CASE. 22. THE FIRST PLEA OF ASSESSEE IS THAT THE ONUS WAS NOT DISCHARGED BY THE DEPARTMENT RELYING ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF VALUE CAPITAL SERVICES PVT. LTD. (SUPRA) IS CONC ERNED. I FIND THAT THE SAID ITA NOS. 2464 TO 2467/D/2011 15 DECISION HAS BEEN RENDERED WITH REFERENCE TO SHARE APPLICATION MONEY AND NOT WITH REFERENCE TO ACCOMMODATION ENTRIES. THE H ONBLE DELHI HIGH COURT TOOK NOTE OF THE FACT THAT THE ASSESSEE HAD P RODUCED THE INCOME TAX RETURNS, SHARE APPLICATION FORMS, CONFIRMATION, PAN LETTER, RATION CARD AND/OR BANK STATEMENT IN RESPECT OF THE SHARE APPLI CANTS. UNDER SUCH CIRCUMSTANCES, WHEN THE PRIMARY ONUS WAS DULY DISCH ARGED BY THE ASSESSEE, HONBLE DELHI HIGH COURT UPHELD THE FINDI NGS OF TRIBUNAL RELYING ON VARIOUS DECISIONS THAT SINCE THE EXISTENCE OF TH E APPLICANT WAS PROVED NORMALLY NO FURTHER ENQUIRY IS NECESSARY. HONBLE DELHI HIGH COURT IN THIS REGARD REFERRED TO THE DECISION IN THE CASE OF CIT VS. STELLER INVESTMENT LTD., 192 ITR 287 AND A FULL BENCH DECISION IN CIT VS. SOPHIA FINANCE LTD., 205 ITR 98. IN THE BACKDROP OF THESE FACTS HONBLE DELHI HIGH COURT HELD THAT THE DEPARTMENT WAS REQUIRED TO SHOW THAT INVES TMENT MADE BY SUBSCRIBERS ACTUALLY EMANATED FROM COFFERS OF ASSES SEE TO BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. HOWEVER, IN TH E PRESENT CASE, INVESTIGATION WING HAD CARRIED OUT DETAILED INVESTI GATION IN REGARD TO ACCOMMODATION ENTRY AND, THEREFORE, THE ONUS IS SQU ARELY ON ASSESSEE TO ESTABLISH THAT IT HAD NOT GIVEN MONEY TO TAKE BACK THE SAME IN THE GARB OF GIFT. THIS COULD BE DONE ONLY BY PRODUCING THE DON OR BECAUSE AS PER GIFT DEED, THE AMOUNT WAS GIFTED OUT OF LOVE AND AFFECTI ON. THE AO COULD SHOW THAT THE AMOUNT EMANATED FROM THE COFFERS OF ASSESS EE ONLY WHEN DETAILED ENQUIRY IN THAT REGARD WAS CARRIED OUT INCLUDING RE CORDING STATEMENT OF DONOR. THE AO COULD EXAMINE THE CREDITWORTHINESS O F DONOR ONLY WHEN HE WAS PRODUCED. MERELY BECAUSE PAN NUMBER WAS GIVEN IN THE AFFIDAVIT FILED BY DONOR IT CANNOT BE INFERRED THAT THE DONOR HAD C REDITWORTHINESS TO GIFT THE AMOUNT. THE AO HAS TO TAKE INTO THE CONSIDERATION ALL THE CIRCUMSTANCES INTO CONSIDERATION BEFORE ARRIVING AT THE CONCLUSIO N. 23. IN VIEW OF ABOVE, DISCUSSION, THE ASSESSEES PL EA THAT ONUS WAS NOT DISCHARGED BY THE DEPARTMENT IS NOT ACCEPTABLE. ITA NOS. 2464 TO 2467/D/2011 16 24. THE NEXT PLEA OF THE ASSESSEE IS THAT ADDITION COULD NOT BE MADE U/S 68 BECAUSE BANK STATEMENT DOES NOT CONSTITUTE BOOKS OF ACCOUNT AND ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT. IN THIS REGARD, I MAY REFER TO THE FINDINGS OF LD. CIT(A) IN PARA 5.14 WH ICH ARE AS UNDER: - 5.14 THE APPELLANTS ARGUMENT THAT THE BANK DEPOSITS CANNOT BE TAXED U/S 68 OF THE ACT THOUGH H E HAS FAILED TO OFFER EXPLANATION REGARDING GENUINENESS OF DEPOSITS, ARE ACADEMIC IN NATURE. I N PRINCIPLE, THERE IS NO TWO POSSIBLE VIEW REGARDING TAXABILITY OF THE SUM UNDER REFERENCE THOUGH THERE MAY BE TWO OPINION ABOUT SECTION UNDER WHICH IT IS CHARGEABLE TO TAX EITHER U/S 68 OR 69 OF THE ACT. THE ARGUMENTS, BEING ACADEMIC IN NATURE, ARE NOT BEING DEALT HERE. IN NUTSHELL, UNDER THE PREVAILING CIRCUMSTANCES AND IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF P. MOHAN KALA AND OBSERVATIONS TO DECIDE THE ISSUE IN LIGHT OF DECISION IN THE CASE OF SUMATI DAYAL, IT EMERGES TH AT THE ASSESSEE HAS GROSSLY FAILED TO PROVE THAT THE G IFT HAVE BEEN MADE FOR NATURAL LOVE AND AFFECTION. THE ADDITION OF RS. 2.00 LAKHS MADE BY THE AO THEREFORE , IS SUSTAINED. 25. LD. COUNSEL HAS RELIED ON THE DECISION OF HONB LE BOMBAY HIGH COURT IN THE CASE OF BHAI CHAND H. GANDHI (SUPRA), WHEREI N IT HAS BEEN HELD THAT SECTION 68 IS NOT APPLICABLE IN CASE OF AMOUNTS CRE DITED TO BANK PASS BOOK. HOWEVER, AS RIGHTLY POINTED OUT BY LD. CIT(A), THE ADDITION COULD BE MADE U/S 69 AND, THEREFORE, MERELY ON THIS TECHNICAL GRO UND IT CANNOT BE HELD THAT AMOUNTS FOUND CREDITED IN BANK STATEMENTS CANNOT BE TAXED. MERE INVOCATION OF WRONG SECTION DOES NOT PRECLUDE THE D EPARTMENT FROM TAXING THE AMOUNT UNDER CORRECT SECTION. MOREOVER, THE FI NDINGS OF AO STAND MERGED WITH THE ORDER OF LD. CIT(A) WHO HAS CONFIRM ED THE ACTION U/S 69. THIS FINDING OF LD. CIT(A) HAS NOT BEEN ASSAILED BY ASSESSEE. I FULLY CONCUR WITH THE FINDINGS OF LD. CIT(A). ITA NOS. 2464 TO 2467/D/2011 17 26. NOW COMING TO THE NEXT PLEA OF THE ASSESSEE REG ARDING NO PROPER OPPORTUNITY, I FIND THAT AO HAS, INTER-ALIA, OBSERV ED AS UNDER: - AGAIN ON 25/11/2008 A REQUEST WAS RECEIVED AND CASE WAS ADJOURNED TO 2/12/2008. IN THE MEAN TIME SUMMONS WERE SENT TO SHRI NARINDER KUMAR GUPTA FOR ATTENDING THIS OFFICE. THE SUMMONS SENT RECEIV ED BACK UNSERVED THE REMARK OF POSTAL AUTHORITY NO SUCH PERSON. ON 2.12.2008 AR OF THE ASSESSEE WAS AGAIN ASKED TO PRODUCE THE DONOR FOR CROSS VERIFICATION AND CAS E WAS ADJOURNED FOR 10.12.2008. ON 10.12.2008 ON THE REQUEST OF THE ASSESSEE CASE WAS ADJOURNED TO 22.12.2008. ON 22.12.2008 NONE ATTENDED NOR THE DONOR WERE PRODUCED FOR CROSS VERIFICATION. 27. FROM THE ABOVE OBSERVATIONS, IT IS EVIDENT THAT ON 02/12/2008, THE ASSESSEES REPRESENTATIVE WAS AGAIN ASKED TO PRODUC E THE DONOR FOR CROSS VERIFICATION AS THE SUMMONS WERE RECEIVED BACK UN-S ERVED. THEREFORE, THE ASSESSEE COULD PROVIDE THE NEW ADDRESS OF DONOR, IF THERE WAS ANY CHANGE IN THE SAME BETWEEN 2/12/08 TO 22/12/08. UNDER SUC H CIRCUMSTANCES, I AM OF THE OPINION THAT ASSESSEE WAS AFFORDED FULL OPPO RTUNITY TO SUBSTANTIATE ITS CLAIM BUT FAILED TO DO SO. 28. IN VIEW OF ABOVE DISCUSSION, THE ASSESSEES APP EAL IS DISMISSED. 29. ITA NOS. 2465, 2466 & 2467/DEL/2011 : THE FACTS ARE IDENTICAL IN ALL THE THREE APPEALS EX CEPT THAT THE DONORS AND THE AMOUNT OF ALLEGED GIFT WERE AS UNDER: - 1. SHRI ANIL KUMAR GUPTA RECEIVED GIFT OF RS. 200 000/- FROM SH. AJAY BANSAL. 2. SLHRI SUNIL KUMAR GUPTA RECEIVED A GIFT OF RS. 100000/- FROM SHRI ASHOK KUMAR SINGHAL AND RS. 100000/- FROM SHRI BRAHAM DUTT. 3. M/S ANIL KUMAR GUPTA & SONS (HUF) THOUGH ITS KAR TA SHRI ANIL KUMAR GUPTA RECEIVED A GIFT OF RS. 100000/- FROM SHRI KESO RAM GUPTA. ITA NOS. 2464 TO 2467/D/2011 18 THEREFORE, FOR THE REASONS GIVEN IN RESPECT OF ASHI SH GUPTA, I CONFIRM THE ORDER OF LD. CIT(A). 30. IN THE RESULT, THE APPEALS OF ALL THE FOUR ASSE SSEES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/08/2012 SD/- (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 30.8.12 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR