Sh. Nitesh Gupta, Delhi V. ITO, New Delhi

ITA 2618/DEL/2010

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9969 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 26-03-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 01-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Keywords: Gift; Income from undisclosed sources; Earning of tax free income; Additional evidence
• Section: 147; 68; 148; 6

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO.2618/DEL/2010 (ASSESSMENT YEAR: 2002 - 03) NITESH KUMAR GUPTA, 27/23 SHAKTI NAGAR, NEW DELHI, PANNOAETPG6186L ITO, WARD 20(1), NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SATISH KHOSLA CA RESPONDENT BY : SHRI VIKRAM SAHAY SR. DR DATE OF HEARING 26.03 .2015 DATE OF PRONOUNCEMENT 30 .04.2015 ORDER PER A. T. VARKEY , JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE , AN INDIVIDUAL, ARISES OUT OF THE ORDER PASSED BY THE LD. CIT(A) - XXII, NEW DELHI DATED 30 .3.20 10 PERTAINING TO ASSESSMENT YEAR 200 2 - 0 3 . 2. IN THIS CASE THE ASSESSEE HAS RAISED AS MANY AS 12 GROUNDS, HOWEVER, BEFORE US HE HAS ONLY PRESSED GROUND NO S . 7 & 8 AND SO GROUND NO S . 1 TO 6 & 9 TO 12 HAVE NOT BEEN PRESSED, HENCE, THE SAME ARE DISMISSED AS NOT PRESSED. THE TWO EFFECTIVE GROUND S B EFORE US BEING NO S . 7 & 8 READ AS UNDER: - 7. LD. CIT(A) - XXII, NEW DELHI HAS ERRED IN NOT CONSIDERING REMAND REPORT WHICH WAS DIRECTED HIMSELF BY LD. CIT(A) - XXII, NEW DELHI TO LD. INCOME TAX OFFICER, WARD 20(1), NEW DELHI. HE COULD NOT HAVE BRUSHED ASID E IT WITHOUT AFFORDING PROPER OPPORTUNITY TO ASSESSEE AND WITHOUT SUFFICIENT REASONS. HENCE, THE SAME WAS UNJUSTIFIED BECAUSE LD. CIT(A) - XXII, NEW DELHI HAS NOT CONSIDERED ANY EVIDENCE AND STATEMENT RECORDED DURING REMAND PROCEEDINGS. THE CONFIRMATION OF ADDITION OF GIFT AMOUNT OF RS. 5,00,000/ - BY LD. CIT(A) - XXII, NEW DELHI IS NOT SUSTAINABLE IN LAW. THE CONFIRMATION OF ADDITION BE DIRECTED TO BE DELETED. ITA NO. 2618/ DEL/ 2010 2 8. LD. CIT(A) - XXII, NEW DELHI HAS DELETED RS. 10,000/ - ADDED ON ACCOUNT OF COMMISSION @2% OF GIFT ON THE GROUND THAT THERE WAS NO EVIDENCE AVAILABLE ON RECORDS. THE COMMISSION WAS HELD TO BE PAID IN LIEU OF GIFT RECEIVED AS WAS GIVEN WHILE DELETING THE COMMISSION SINCE IT WAS ADDED HYPOTHETICALLY AS LINKED AND CONNECTED TO THE GIFT. HENCE, LD. CIT(A ) - XXII, NEW DELHI HAS ERRED IN CONFIRMING THE ADDITION OF GIFT ON THE SAME GROUND ON WHICH ALLEGED COMMISSION WAS DELETED BECAUSE REASONING ADOPTED BY AO FOR BOTH ADDITIONS WAS SAME. THE FINDINGS OF THE LD. CIT(A) ARE SELF CONTRADICTORY, NON JUDICIOUS AN D UNJUSTIFIED. THE ADDITION OF GIFT AS CONFIRMED BY THE LD. CIT(A) DESERVES TO BE DELETED. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR WAS FILED ON 17.5.2002 VIDE RECEIPT NO. 136 DECLARING AN INCOME OF RS. 82, 591/ - . ON RECEIVING AN INFORMATION FROM THE DIT(INV.) THAT IN THE BANK ACCOUNT OF THE ASSESSEE IN ABN BARAKHAMBA RO AD, NEW DELH A SUM OF RS. 5 LACS WAS CREDITED FROM SH. VINODI LAL AGGARWAL, THE AO RECORDED HIS REASONS TO BELIEVE THA T THE INCOME OF RS. 5,00,000/ - , CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND INITIATED THE PROCEEDINGS U/S. 147 OF THE INCOME TAX ACT , 1961 (HEREIN AFTER THE ACT ) BY ISSUANCE OF NOTICE U/S. 148 OF THE ACT ON 13. 0 3.2007 WHICH WAS SERVED UPON THE ASSESS EE ON 15. 0 3.2007. THE REASONS RECORDED BEFORE ISSUANCE OF NOTICE U/S. 148 WAS ACCORDING TO AO PROVIDED TO THE ASSESSEE. THE ASSESSEE REQUESTED FOR A CERTIFIED COPY OF THE INFORMATION RECEIVED FROM THE DIT(IN V.). THE ASSESSEE WAS ASKED TO FURNISH THE NATURE AND SOURCE OF THE TRANSACTION AND TO EXPLAIN WHY THIS CREDIT IN HIS BANK ACCOUNT MAY NOT BE TREATED AS ACCOMMODATION ENTRY AND ADDED TO THE INCOME ALONG WITH 2% COMMISSION FOR PROVIDING SUCH COLORED TRANSACTION. ACCORDING TO THE AO T HE ASSESSEE FAILED TO COMPLY WITH THE STATUTORY NOTICES, IN SPITE OF THE FACT THAT SEVERAL OPPORTUNITIES WERE AFFORDED. THE AO TREATED THIS AMOUNT OF RS. 5,00,000/ - AS ASSESSEES OWN INCOME FROM UNDISCLOSED SOURCES U/S. 68 OF THE ACT AND ADDED TO THE INC OME OF THE ASSESSEE ALONGWITH RS. 10,000/ - BEING 2% OF THE TOTAL AMOUNT FOR INCURRING EXPENDITURE FOR RECEIVING ACCOMMODATION ENTRY. ITA NO. 2618/ DEL/ 2010 3 4. AGAINST THE AFORESAID ORDER OF THE ASSESSING OFFICER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS ORDER DAT ED 30 . 3 .20 10 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE BY DELETING THE RS. 10 , 000/ - I.E. THE 2% OF THE TOTAL AMOUNT OF RS. 5 LACS WHICH WAS SUPPOSED TO HAVE INCURRED FOR RECEIVING THE SAID ACCOMMODATION ENTRY. HOWEVER, CONFIRMED THE RS. 5 LAKHS AS UN DISCLOSED INCOME OF THE ASSESSEE. 5. AGGRIEVED BY THE SAID ORDER OF THE LD. CIT(A), N OW THE ASSESSEE IS IN APPEAL BEFORE US. 6. LD. AR OF THE ASSESSEE HAS CONTENDED THAT LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE REMAND REPORT SUBMITTED BY THE AO, BEFORE PASSING THE IMPUGNED ORDER. ACCORDING TO HIM, H E COULD NOT HAVE BRUSHED ASIDE IT WITHOUT AFFORDING PROPER OPPORTUNITY TO ASSESSEE AND WITHOUT SUFFICIENT REASONS. AND THE SAME WAS UNJUSTIFIED BECAUSE LD. CIT(A) HAS NOT CONSIDERED ANY EVIDENCE AND STATEMENT RECORDED DURING REMAND PROCEEDINGS BEFORE THE AO . ACCORDING TO HIM, THE DONOR APPEARED BEFORE THE AO AND CONFIRMED THAT HE HAS GIVEN THE GIFT TO THE ASSESSEE AND EXPLAINED THE SOURCE OF THE SAID AMOUNT WHICH WAS TRANSACTED THROUGH BANK, SO T HE CONFIRMATION OF ADDITION OF GIFT AMOUNT OF RS. 5,00,000/ - BY LD. CIT(A) IS THEREFORE, NOT SUSTAINABLE IN LAW. THEREFORE, HE PLEADED THAT THE CONFIRMATION OF ADDITION BE DIRECTED TO BE DELETE D. HE ALSO SUBMITTED THAT ON ONE HAND THE LD. CIT(A) HAS DELETED RS. 10,000/ - ADDED ON ACCOUNT OF PURPORTED COMMISSION @2% WHICH COULD HAVE BEEN PAID TO VINOD LAL FOR MAKING ACCOMMODATION ENTRY IN THE GUISE OF GIFT ON THE GROUND THAT THERE WAS NO EVIDENCE AVAILABLE ON RECORDS , HOWEVER HE WONDERED AS TO HOW THE LD CIT( A) COULD HAVE SUSTAINED THE ADDITION OF 5 LAKHS U/S 68 WHEN THE DONOR HIMSELF CONFIRMED THAT HE HAS GIFTED THE SAME AND COULD PROVE THE SOURCE OF GIFT ITSELF BEFORE AO ALBEIT DURING THE REMAND PROCEEDINGS . ACCORDING TO HIM, WHEN THE COMMISSION WHICH WAS SUPPOSED TO HAVE BEEN PAID TO THE DONOR BY THE ASSESSEE FOR GIVING THE GIFT WAS DELETED BY THE LD. CIT(A) THEN THE THEORY OF ACCOMMODATION ENTRY FOR RS.5 LAKHS FAILS AND SO THE LD CIT(A) ERRED IN NOT DELETING THE SAID ADDITION TOO. SO, ACCORDING TO THE LD. AR, ITA NO. 2618/ DEL/ 2010 4 CONFIRMATION OF THE ADDITION BY THE LD. CIT(A) ARE SELF CONTRADICTORY, NON JUDICIOUS AND UNJUSTIFIED AND THEREFORE, T HE ADDITION MADE U/S 68 OF THE ACT ON GENUINE GIFT DESERVES TO BE DELETED. 7. ON THE OTHER HAND, LD. DR HAS R ELIED UPON THE ORDER OF THE LD. CIT(A). 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. IN OUR CONSIDERED OPINION, THE ONLY GROUND WHICH REQUIRES ADJUDICATION IS ADDITION OF RS.5 LACS AS GIFT RAISED VIDE GROUND NO.7. 8.1 WE FIND THAT THE LD. CI T(A) HAS OBSERVED THAT THE ASSESSEE RECEIVED A CHEQUE FOR RS.5,00,000 / - ON 24.02.2002 BEARING NO. 11184 CREDITED TO H IS ACCOUNT. THI S AMOUNT WAS IN THE FORM OF GIFT FROM ONE SHRI VINODI LAL AGGARWAL. I T WAS EXPLAINED BY THE A SSESSEE THAT HE RECEIVED A GIFT OF RS.5,OO,OOO/ - FROM SH. VINODI LAL AGGARWA L AND A C OPY OF AFFIDAVIT OF MR. VINODI LAL AGGAR WAL , A COPY OF P AN CARD OF MR.VINODI LAL AGGARWAL, A COPY OF RETURN OF VINODI LAL AGGARWAL, A COPY OF ANOTHER LETTER TO AO ALONG WITH WHIC H CO PY OF BANK STATEMENT OF THE DONOR AND PHOTOCOPY OF THE GIFT DEED WERE FU RN ISHED. HOWEVER, LD. CIT(A) OBSERVED THAT THE PURPORTED GIFT WAS GIVEN TO THE A SSESSEE THROUGH CHEQUE JUST A DAY AFTER WHICH THE DONOR ACCOUNT WAS CREDITED BY APPROXIMATELY SAME AMOUNT. THE OPE NING BALANCE PRIOR TO GI F T ON 21 - 02 - 20 02 WAS RS. 9268. 60 W HICH CAME DOWN TO AN AMOUNT OF RS. 5268/ - AFTER THE GIFT OF RS. 5,00,000/ - . THUS ACCORDING TO LD. CIT(A) CREDITWORTHINESS OF THE DONOR BECOMES DOUBTFUL. FURTHER, THE LD. CIT(A) OBSERVED THAT TH OUGH THE ASSESSEE HAD FILED THE AFFIDAVITS FROM THE DONOR MAKING GIFT, BANK STATEMENTS, AND COPY OF INCOME TAX RETURN , HOWEVER, THE ASSESSEE COULD NOT PRODUCE THE DONORS FOR VERIFICATION , AS INSTRUCTED TO HIM BY THE AO. ACCORDING TO THE LD. CIT(A), M ERE FILING OF CERTAIN PAPERS DID NOT PROVE THE GENUINENESS OF A TRANSACTION PARTICULARLY WHEN THE AO REQUIRED THE PRESENCE OF THE PARTIES INVOLVED IN THE DOUBTFUL TRANSACTION. ACCORDING TO LD. CIT(A) N O CIRCUMSTANCES WERE DEMONSTRATED BEFORE HIM AS TO WHY THE DONOR WAS NOT AVAILABLE FOR EXAMINATION BY THE AO. IT WAS FURTHER OBSERVED BY THE LD. CIT(A) THAT THERE WAS A SYSTEMATIC DESIGN BY THE ASSESSE E IN OBTAINING THESE SO CALLED GIFTS. ACCORDING TO HIM EVEN ITA NO. 2618/ DEL/ 2010 5 THOUGH MONEY HAD FLOWN THROUGH BANK AC COUNT, THE IDENTITY OF THE PERSON GIVING GIFTS ESTABLISHED, STILL THE TRANSACTIONS FROM THE DONORS OF THE ASSESSEE WAS NOT GENUINE. THEN THE LD. CIT(A) CONCLUDED THAT THE ASSESSEE WAS THE BENEFICIARY OF THIS MONEY, SO THE ASSESSEE WAS REQUIRED TO ESTABLIS H THAT THE DONOR HAD MEANS AND THE GIFT WAS GENUINE AND HELD THAT THE AO VERY RIGHTLY TREATED THIS CLAIM OF GIFT AS THE INCOME OF THE ASSESSEE U/S. 68 OF THE ACT. HE FURTHER HELD THAT NO GROUND FOR INTERFERENCE IN THE AOS ORDER IS REQUIRED ON THE BASIS OF ADDITIONAL EVIDENCES PRODUCED DURING APPELLATE PROCEEDINGS. HOWEVER, WE TAKE NOTE OF THE FACT THAT THE LD. CIT(A) HAS HELD THAT THERE IS NO EVIDENCE FOR THE ADDITION OF RS.10,000/ - MADE BY THE AO ON ACCOUNT OF COMMISSION PAID TO THE DONOR FOR FACILITAT ING THE ACCOMMODATION ENTRY, SO IT WAS DELETED. 8 . 2 AFTER PERUSING THE RECORDS, W E FIND THAT ASSESSEE HAD RECEIVED GIFT OF RS.5 LAKH BY CHEQUE NO.11184 DATED 24 - 2 - 2002 DRAWN ON STATE BANK OF PATIALA, DARYA GANJ, NEW DELHI FROM SHRI VINODI LAL AGGARWAL. THIS CHEQUE WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE WITH ABN AMRO BANK. THE ASSESSEE HAD FILED RETURN OF INCOME ALONG WITH THE BALANCE SHEET AND 12 OTHER STATEMENT/DOCUMENTS SUCH AS GIFT DEED (PAGE 32 PB) AFFIDAVIT (PAGE 34 PB) , NSC, T.D.S. CERTIFICATE & OTHER PARTY COPY OF ACCOUNTS. THE BALANCE SHEET SPECIFICALLY SHOWS RS.5 LAKH RECEIVED BY WAY OF GIFT OUT OF NATURAL LOVE AND A FFECTION IN THE CAPITAL ACCOUNT. THE DONOR HAD GIVEN MEMORANDUM OF GIFT DULY SIGNED WHICH WAS ACCEPTED BY THE A SSESS EE . THE DONOR HAD ALSO GIVEN AN AFFIDAVIT TO THIS EFFECT. T HE DONOR SHRI VINODI LAL AGGARWAL, IS AN INCOME TAX ASSESSEE FOR LONG AND IS HAVING PERMANENT ACCOUNT NO.ADGPA2903D AND IS PRESENTLY & REGULARLY ASSESSED WITH ITO, WARD, NEW DELHI 24(1), NEW DELHI . THE ASSESSEE ALSO SUBMITTED A COPY OF BANK ACCOUNT OF THE DONOR WHEREIN THE ABOVE CHEQUE WAS DEBITED. LD. AR OF THE ASSESSEE FURTHER SUBMITTED THAT THE DONOR HAS GIVEN GIFT BY WAY OF CHEQUE FROM HIS BANK ACCOUNT AND THE GIFT HAS BEEN ACCEPTED BY THE ASSE SSEE AND THUS THE GIFT IS COMPLETE. THE DONOR HAS ALSO GIVEN THE WRITTEN STATEMENT AND CONFIRMING THE FACTS AND DOCUMENTS OF THE ABOVE SAID GIFT OF RS. 5 LAKH ITA NO. 2618/ DEL/ 2010 6 BEFORE ASSESSING OFFICER . THE MAIN REASON FOR MAKING THE ADDITION IN THE LIGHT OF THESE EVIDENCES IS THAT THE ASSESSEE FAILED TO PRODUCE THE DONOR FOR VERIFICATION IN FRONT OF THE AO. HOWEVER, WE FIND THAT IN THE REMAND REPORT OF THE AO, PURSUANT TO THE DIRECTIONS OF THE LD. CIT(A), THE ASSESSEE HAS PRODUCED THE DONOR BEFORE THE AO AND THE DONOR HAS ACCEPTED THAT HE HAD GIFTED THE SAID AMOUNT TO ASSESSEE. THE REMAND REPORT DATED 26.8.2009 IS AS FOLLOWS: - TO THE COMMISSIONER OF INCOME TAX (APPEALS - XXII) NEW DELHI (THROUGH PROPER CHANNEL) SIR, SUB: - REMAND REPORT IN THE CASE OF SH. NITESH GUPTA, AY 2002 - 03 APPEAL NO. 214/07 - 08 REG. KINDLY REFER TO YOUR LETTER F.NO. CIT(A) - XXII/2009 - 10/85 DATED 07.7.2009 VIDE WHICH YOU HAD REQUIRED FROM UNDERSIGNED THAT A REMAND REPORT BE SENT IN THE CAPTIONED CASE. THE REMAND REPORT IS SUBMITTED AS UNDER: - ASSESSMENT IN THE ABOVE CASE WAS COMPLETED ON EXPARTE BASIS BY MY PREDECESSOR AT AN INCOME OF RS. 5,92,591/ - AGAINST THE RETURNED INCOME OF RS. 82,591/ - . ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTORATE OF INVESTIGATION, ADDITION IN THE INCOME O F THE ASSESSEE WAS MADE OF RS. 5,10,000/ - ON ACCOUNT OF RS. 5,00,000/ - RECEIVED FROM SH. VINODI LAL AND COMMISSION OF RS. 10,000/ - ON IT. AFTER THE REMAND REPORT WAS SOUGHT BY YOUR OFFICE, SH. VINODI LAL AGGARWAL AND SH. NITESH GUPTA WERE ISSUED SUMMONS TO APPEAR BEFORE THE UNDERSIGNED AND PROVIDE DOCUMENTS. THE ASSESSEE ALONG WITH SH. VINODI LAL AGGARWAL AND SH. V.K. GOEL, COUNSEL APPEARED ON 24.8.2009 BEFORE THE UNDERSIGNED. THE COUNSEL OF THE ASSESSEE SUBMITTED THAT THIS IS A GIFT RECEIVED FROM SH . VINODI LAL AGGARWAL. SH. VINODI LAL AGGARWAL HAS SUBMITTED COPY OF MEMORANDUM OF GIFT, AFFIDAVIT, COPY OF BANK STATEMENT, COPY OF PAN ALLOTMENT, COPY OF A/C OF SH. VINODI LAL AGGARWAL WITH M/S MITTLA & CO. COPY OF RATION CARD (ALL COPIES ENCLOSED) . SINCE THE ACTION OF AO WAS ON DOCUMENTS ON RECORD AND PROPER CONSIDERATION OF ALL THE AVAILABLE MATERIAL, IT IS REQUESTED NOT TO ACCEPT THE ADDITIONAL EVIDENCE AND APPROVE THE ADDITIONS MADE BY THIS OFFICE. SUBMITT ED FOR YOUR KIND CONSIDERATION. 8. 3 FOR QUESTION NO . 4 TO THE DONOR, HE ANSWE RED AS UNDER: - ITA NO. 2618/ DEL/ 2010 7 Q . 4. PLEASE STATE WHETHER YOU HAVE GIFTED ANY MONEY TO SH. NITESH GUPTA. IF YES, PLEASE STATE THE SOURCE. ANS. YES, I HAD VOLUNTARILY MADE GIFT OF RS. 5,00,000/ - TO SH. NITESH GUPTA ON 26.2.2002 VIDE CH. NO. 11184 OUT OF MY BANK A/C 01090006806 WITH STATE BANK OF PATIALA, DARYA GANJ BRANCH, NEW DELHI. THIS AMOUNT IS OUT OF MY PAST DEPOSITS AND SAVINGS. I HAVE DEPOSITED RS. 5,00,000/ - WITH M/S MITTAL & CO. WHICH I RECEIVED BACK THROU GH CHEQUES. COPY OF A/C WITH MITTAL & CO. ALONG WITH COPY OF INCOME TAX RETUR N OF MITTAL & CO. IS ENCLOSED. 8.4 THE LD. AR BROUGHT TO OUR NOTICE THAT THE DONOR RECEIVED THE AMOUNT OF RS. 2 LAKH AND RS. 2.90 LAKH ON 21. 0 2.2002 FROM MITTAL & CO. AND TOO K OUR ATTENTION TO PAPER BOOK PAGE 29 TO SHOW THE SAID TRANSACTION AND THEN REFERRED TO PAGE 35 OF PB WHICH IS THE STATEMENT OF ACCOUNT OF STATE BANK OF PATIALA OF THE DONOR WHEREIN WE NOTE THAT THE SAID AMOUNT OF RS. 2 LAKH AND RS.2.90 LAKH WERE CREDIT ED TO HIS ACCOUNT BY BANKING CHANNEL ON 25. 0 2. 20 0 2 . AND ON THE NEXT DAY I.E. 26. 0 2.200 2, WE FIND THAT THERE IS A DEBIT OF RS.5 LAKHS BY CHEQUE NO .11184. IN SUCH A SCENARIO THE AMOUNT DUE TO THE DONOR FROM M/S MITTAL & CO. HAS BEEN SUCCESSFULLY EXPLAINED. NOW IN ORDER TO DEMONSTRATE THE CREDITWORTHINESS OF THE DONOR, LD. AR TOOK OUR ATTENTION TO THE RETURN OF WEALTH TAX OF DONOR (PAGE 27, PB) WHEREIN , WE FIND THAT THE DONOR HAD SHOWN NET WEALTH OF IMMOVABLE PROPERTIES AMOUNTING TO RS.15,25,501/ - WITHOUT INCLUDING THE EXEMPT INCOME OF RS.13,89,563/ - . THUS, WE FIND THAT THE DONOR HAD CREDITWORTHINESS TO GIVE GIFT OF RS.5 LAKHS. 8. 5 WE ALSO FIND THAT LD. CIT(A) HAS DELETED RS.10,000/ - ADDED ON ACCOUNT OF PURPORTED COMMISSION @2% OF RS.5 LAKHS TO THE TO THE PURPORTED ENTRY PROVIDER (HERE IN THIS CASE THE DONOR OF THE GIFT ) ON THE GROUND THAT THERE WAS NO EVIDENCE AVAILABLE ON RECORDS. ACCORDING TO THE AO, T HE COMMISSION MUST HAVE BEEN PAID BY THE ASSESSEE TO THE ENTRY PROVIDES IN THE GUISE OF DONOR F OR PROVIDING ACCOMMODATION ENTRY IN THE FORM OF GIFT RECEIVED TO HIM THROUG H BANK WAS HOWEVER DELETED BY THE LD. CIT(A), ON THE GROUND THAT THERE WAS NO EVIDENCE TO SUBSTANTIATE THE SAID ADDITION. IN SUCH A SCENARIO, WE FIND FORCE IN THE CONTENTION OF TH E LD. AR, THAT WHEN THE LD. CIT(A) DELETED THE PURPORTED COMMISSION @2% OF RS.5 LAKHS , IN THE ABSENCE OF ITA NO. 2618/ DEL/ 2010 8 EVIDENCE, THE EDIFICE OF ACCOMMODATION ENTRY PROVIDED BY THE ENTRY OPERATOR/ DONOR TO THE ASSESSEE FALLS. HENCE, LD. CIT(A) HAS ERRED IN CONFIRMING THE IMPUGNED ADDITION U/S 68 OF THE ACT. WE HAVE FOUND THAT THE DONOR IS A CREDITWORTHY PERSON AND HE HAS EXPLAINED THE SOURCE OF HIS GIFT AND HAS APPEARED BEFORE THE AO ALBEIT DURING THE REMAND PROCEEDINGS AND HAS CONFIRMED THAT THE GIFT WAS GIVEN BY HIM TO THE ASSESSEE. MEMORANDUM OF GIFT, BANK ACCOUNT STATEMENT, BALANCE SHEETS ETC. HAS BEEN PRODUCED BEFORE THE AUTHORITIES AND BEFORE US. IN THE LIGHT OF THE ABOVE EVIDENCE, CORROBORATED BY DOCUMENTARY EVIDENCE, WE HOLD THAT THE GIFT TO ASSESSEE WAS VALI D AND SO WE HAVE NO HESITATION TO DELETE THE ADDITION MADE BY THE AUTHORITIES BELOW. THE ADDITION OF GIFT AS CONFIRMED BY THE LD. CIT(A) DESERVES TO BE DELETED. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DE LETE THE ADDITION OF RS. 5 LACS MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) BY ALLOWING THIS GROUND OF APPEAL FILED BY THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 .04.2015. - S D / - - S D / - (R.S. SYAL ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 3 0 /04/2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI