Smt. Veena Bhatia, Delhi V. ACIT, New Delhi

ITA 2680/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2115 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-10-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 01-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: STEPHEN GEORGE
• Keywords: Gift; Competent authority; Block assessment
• Section: 142(1); 153A; 68; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE DEEPAK R. SHAH AND SHRI RAJPAL YADAV I.T.A. NO. 2680 & 2682/DEL/2009 ASSESSMENT YEARS: 2002-03 & 2006-07 SMT. VEENA BHATIA, VS. ASSISTANT COMMISSIONER OF IT, 31-B, RAJPUR ROAD, CENTRAL CIRCLE-17, DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI KAPIL GOEL, CA RESPONDENT BY: SHRI STEPHEN GE ORGE, CIT(DR) ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE SEP ARATE ORDERS OF EVEN DATE I.E. 24.3.2009 PASSED BY THE LEARNED CIT(APPEA LS) ON THE APPEALS OF THE ASSESSEE FOR ASSESSMENT YEAR 2002-03 AND 2006-07. S INCE THE COMMON ISSUES ARE INVOLVED IN BOTH THE APPEALS, THEREFORE, WE TAK E THEM TOGETHER. 2. THE SOLITARY GROUND OF APPEAL IN ASSESSMENT YEAR 2002-03 IS COMMON WITH GROUND NO.2 TAKEN IN ASSESSMENT YEAR 2006-07. IN THESE GROUNDS OF APPEALS, ASSESSEE IS IMPUGNING CONFIRMATION OF AN A DDITION OF RS.5,21,000 AND RS.10,36,109 ADDED BY THE ASSESSING OFFICER BY DISBELIEVING THE CLAIM OF GIFT MADE BY THE ASSESSEE IN ASSESSMENT YEARS 20 02-03 AND 2006-07 RESPECTIVELY. 2 3. THE ASSESSMENT IN ASSESSMENT YEAR 2002-03 HAS BE EN MADE UNDER SEC.153A OF THE ACT ON THE GROUND THAT A SEARCH UND ER SEC.132 OF THE ACT WAS CARRIED OUT UPON THE ASSESSEE ON 13.12.2005 WHE REAS ASSESSMENT IN ASSESSMENT YEAR 2006-07 HAS BEEN MADE UNDER SEC.143 (3) ON 24.12.2007. 4. THE BRIEF FACTS OF THE CASE IN ASSESSMENT YEAR 2 002-03 ARE THAT A NOTICE UNDER SEC. 153A OF THE ACT WAS ISSUED ON 9.7.2007 I N ASSESSMENT YEAR 2002- 03. IN RESPONSE TO THE NOTICE, ASSESSEE HAS SUBMITT ED THAT ORIGINAL RETURN FILED BY HER UNDER SEC. 139 DECLARING AN INCOME OF RS.2,0 76,070 MAY BE TREATED AS FILED IN RESPONSE TO THE NOTICE ISSUED UNDER SEC. 1 53A OF THE ACT. THE ASSESSING OFFICER HAD ISSUED NOTICE UNDER SEC. 143( 2) AND 142(1) OF THE ACT ON 22 ND NOVEMBER, 2007. THE ASSESSEE HAD FILED A REPLY IN RESPONSE TO THESE NOTICES ON 29.11.2007. ON SCRUTINY OF THE ACCOUNTS, IT WAS FOUND BY THE ASSESSING OFFICER THAT A SUM OF RS.21,000 AND RS.5 LACS WERE RECEIVED BY THE ASSESSEE ON 28.2.2002 AND 22.1.2002 FROM ONE SH RI MUKESH MITTAL THROUGH DEMAND DRAFT. IN ORDER TO EXPLAIN THE ALLEG ED GIFT OF RS.5,21,000 FROM SHRI MITTAL ASSESSEE HAS FILED GIFT DEED, EVID ENCE EXHIBITING THE FACTS THAT GIFT WAS RECEIVED THROUGH BANKING CHANNEL AND DETAILS OF INCOME-TAX RETURN IN RESPECT OF SHRI MUKESH MITTAL ALONG WITH PAN. ASSESSING OFFICER 3 WAS NOT SATISFIED WITH THE EXPLANATION OF ASSESSEE AND MADE THE ADDITION OF RS.5,21,000. 5. APPEAL TO THE LEARNED CIT(A) DID NOT BRING ANY R ELIEF TO THE ASSESSEE. 6. THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS FIRS T FOLD OF SUBMISSIONS CONTENDED THAT NO SEARCH WAS CONDUCTED UPON THE ASS ESSEE AND, THEREFORE, ASSESSMENT ORDER IS NOT SUSTAINABLE. FOR BUTTRESSIN G THIS POINT, HE DREW OUR ATTENTION TOWARDS THE COPY OF THE PUNCHNAMA AVAILAB LE AT PAGE 18 OF THE PAPER BOOK. HE POINTED OUT THAT IN THE PUNCHNAMA SH RI ANIL BHATIA/VEENA BHATIA IS MENTIONED. THERE IS NO AUTHORIZATION OF W ARRANT FOR CARRYING OUT THE SEARCH IN THE CASE OF ASSESSEE. IN SUPPORT OF H IS CONTENTION, HE RELIED UPON THE DECISION OF HON'BLE DELHI HIGH COURT IN TH E CASE OF CIT VS. PUSHPA RANI 289 ITR 328 (DEL.). HE POINTED OUT THAT IN THI S CASE, ITAT ARRIVED AT THE CONCLUSION THAT THERE WAS NO SEARCH WARRANT IN THE NAME OF THE ASSESSEE AND, THEREFORE, ASSESSING OFFICER COULD NOT INVOKE THE PROVISIONS OF SEC. 158-BC FOR INITIATING THE BLOCK ASSESSMENT. HON'BLE DELHI HIGH COURT HAS UPHELD THIS ITATS ORDER AND DISMISSED THE APPEAL O F THE REVENUE. HE FURTHER RELIED UPON THE ORDER OF THE ITAT IN THE CASE OF NA RENDER KUMAR JAIN VS. DCIT 74 TTJ PAGE 848. IN THIS WAY, HE PRAYED THAT A SSESSMENT ORDER BE QUASHED. 4 7. LEARNED DR ON THE OTHER HAND HAS SUBMITTED THAT THE SEARCH WAS CARRIED OUT UPON ASSESSEE ALSO. HE WILL PRODUCED TH E COPY OF WARRANT ISSUED BY THE COMPETENT AUTHORITY FOR CARRYING OUT THE SEA RCH IN THE CASE OF SHRI ANIL BHATIA AND VEENA BHATIA, BOTH HUSBAND AND WIFE . SHE HAS SIGNED THE SEARCH WARRANT WHEN IT WAS EXECUTED. THUS, ACCORDIN G TO THE LEARNED DR ASSESSING OFFICER HAS RIGHTLY TAKEN UP THE PROCEEDI NGS UNDER SEC. 153A OF THE ACT. 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND GON E THROUGH THE RECORD CAREFULLY. THE LEARNED COUNSEL FOR THE ASSESSEE IS HARPING UPON HALF BAKED INFORMATION I.E. THE PUNCHNAMA WITHOUT VERIFYING WH ETHER SEARCH WARRANT WAS ISSUED OR NOT. AT THE TIME OF HEARING, WHEN WE CONFRONTED THIS ASPECT TO THE LEARNED DR HE SAID THAT SEARCH HAS DULY BEEN CO NDUCTED UPON THE ASSESSEE AND THERE IS A SEARCH WARRANT AS INFORMED BY THE A.O. HE SOUGHT TIME TO FILE COPY OF THE SEARCH WARRANT. WE HAVE CO NCLUDED THE HEARING WITH A LIBERTY TO THE LEARNED DR TO PLACE ON RECORD COPY OF THE SEARCH WARRANT. VIDE LETTER DATED 13.11.2009 HE PLACED ON RECORD CO PY OF THE SEARCH WARRANT WHICH WE HAVE GONE THROUGH. ON PERUSAL OF THE SEARC H WARRANT, WE ARE SATISFIED THAT VALID SEARCH WAS CARRIED OUT UPON TH E ASSESSEE. THE SEARCH WARRANT WAS ISSUED BY SHRI PK KEDIA, DIRECTOR OF IN COME-TAX 5 (INVESTIGATION), AUTHORIZING S/SHRI BL MEENA, SD SH ARMA, SUNIL KUMAR AND BK SABHARWAL. THUS, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF LEARNED COUNSEL FOR THE ASSESSEE. AS FAR AS THE ISSUE REGAR DING ADDITION OF RS.5,21,000 IS CONCERNED, AN IDENTICAL ISSUE BY A S IMILAR FINDING HAS BEEN ADJUDICATED UPON BY THE LEARNED CIT(APPEALS) IN THE CASE OF CO-SISTERS SMT. DEEPA BHATIA, WHO HAS ALSO TAKEN A GIFT OF RS. 5 LA CS ON THE SAME DATE FROM SHRI MUKESH MITTAL. WE HAVE UPHELD THE ADDITION IN THE CASE OF DEEPA BHATIA. OUR FINDINGS READ AS UNDER: 11. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION A ND GONE THROUGH THE RECORDS CAREFULLY. THE MONEY RECEIVED T HROUGH GIFTS THOUGH ARE ALSO CREDIT ENTRIES IN THE BOOKS OF ASSE SSE BUT STILL THEY CANNOT BE EQUATED WITH ANY OTHER CASH CREDIT A ND ARE REQUIRED TO BE EXAMINED NOT ONLY WITHIN THE SIMPLE CONDITIONS PROVIDED IN SECTION 68 OF THE INCOME TAX ACT. BECAU SE NORMALLY WHENEVER AN ASSESSEE TOOK LOAN AN AMOUNT AND THAT A MOUNT CREDITED IN HIS BOOKS THEN HE WAS CONSIDERED UNDER A MORAL OBLIGATION TO REFUND THAT AMOUNT. SUCH CONDITIONS A RE NOT APPLICABLE ON THE GIFTS. IN A CASE OF NOT COMING F ROM THE RELATIVES, THE GENUINENESS OF THE TRANSACTION CANNO T BE DETERMINED WITHOUT LOOKING INTO THE ASPECT OF HUMAN PROBABILITIES I.E RELATIONSHIP OF DONOR AND DONEE, OCCASION FOR MAKING THE GIFT AND EXISTENCE OF RECIPROCITY. THERE IS ALWAYS A STRONG MOTIVE FOR EVERY INDIVIDUAL IN GIVING GIFT O F HUGE AMOUNT. 6 WITHOUT ANY MOTIVE IT IS QUITE UNNATURAL THAT ANY I NDIVIDUAL WOULD EXTEND THE MONETARY BENEFIT TO ANY PERSON IN THIS DAY TO DAY WORLD. THE HONBLE DELHI HIGH COURT IN THE CASE OF RAJEEV TANDON VS. ACIT (SUPRA) HAS OBSERVED THAT IN SUCH CIRCUMSTANCES THE TAXATION AUTHORITIES WERE ENTITLE D TO LOOK INTO THE SURROUNDING CIRCUMSTANCES. IN THE PRESENT CASE ALSO IT IS QUITE UNNATURAL THAT ONE WILL GIVE A GIFT OF RS. 5 LACS TO THE ASSESSEE AND RS. 5 LACS TO HER CO-SISTER WITHOUT AN Y BASIS. THE ASSESSEE FAILED TO BRING ANY EVIDENCE INDICATING TH E MOTIVE FOR THE GIFT I.E LOVE AND AFFECTION ETC. BETWEEN THE DO NOR AND DONEE. AS FAR AS FURNISHING OF EVIDENCE IN THE SHAPE OF GI FT DEED PAN NUMBER ETC. ARE CONCERNED WHEN SUCH GIFTS ARE RECE IVED UNDER DUE CONSULTATION THEN HARDLY THEIR CAN BE ANY LACUN A IN THE DOCUMENTATION. BUT SUCH DOCUMENTS ARE NOT SUFFICIEN T FOR TREATING SUCH GIFTS AS GENUINE. IN OUR OPINION LD. CIT (A) HAS CONSIDER THE CONTROVERSY IN RIGHT PERSPECTIVE AND N O INTERFERENCE IS CALLED FOR IN HIS FINDING. THUS GRO UND NO. 2 IS REJECTED. 9. RESPECTFULLY FOLLOWING OUR ORDER, WE DO NOT FIND ANY MERIT IN THE APPEAL OF ASSESSEE AS FAR AS IT RELATES TO ASSESSME NT YEAR 2002-03. THE ADDITION OF RS.5,21,000 IS CONFIRMED 10. AS FAR AS THE ADDITION OF RS.10,36,159 IN ASSES SMENT YEAR 2006-07 IS CONCERNED, THIS GIFT HAS BEEN RECEIVED BY THE ASSES SEE FROM HER NRI BROTHER. 7 SHE HAD PRODUCED CASH BOOK ACCOUNT EXHIBITING RECEI PT OF RS.1,65,000 FROM SHRI SANJAY BHATIA IN CASH AND RS.2,32,226 ON 10.11 .2005, RS.3,30,486 ON 19.1.2006 AND RS.3,08,446 AGAIN ON 19.1.2006. THE D ONOR IS NOT A STRANGER. HE IS THE REAL BROTHER OF THE ASSESSEE WHO IS RESID ING ABROAD. HIS ADDRESS WAS SUPPLIED, THE EVIDENCE EXHIBITING THE GIFT RECEIVED WAS ALSO SUPPLIED. THE CASE OF THE ASSESSEE THAT THIS GIFT COMES WITHIN TH E AMBIT OF EXCEPTION PROVIDED IN SEC. 56(V) OF THE ACT BECAUSE IT WAS RE CEIVED FROM THE REAL BROTHER. THE ASSESSING OFFICER HAS NOT MADE MUCH DI SCUSSION ON THIS ISSUE AND HAS NOT BROUGHT ANY EVIDENCE ON THE RECORD FOR DOUBTING THE CLAIM MADE BY THE ASSESSEE. ASSESSING OFFICER DOUBTED THE GENU INENESS OF THE GIFT ONLY ON THE GROUND THAT ASSESSEE HAS BEEN SHOWING RECEIP T OF GIFT IN ALMOST ALTERNATE YEAR. IN OUR OPINION, THAT CANNOT BE A SO UND LOGIC FOR DOUBTING THE GIFT FROM THE BLOOD RELATIVE. THEREFORE, WE ALLOW T HIS GROUND OF APPEAL IN ASSESSMENT YEAR 2006-07 AND DELETE THE ADDITION OF RS.10,36,109. 11. THE NEXT GROUND IN ASSESSMENT YEAR 2006-07 RELA TES TO ADDITION OF RS.1,50,000. THE BRIEF FACTS OF THE CASE ARE THAT A SSESSEE HAD RECEIVED A LOAN FROM M/S.LAXMAN DASS BHATIA HINGWALA AND THE SAME W AS USED FOR PURCHASE OF HOUSE IN ATUL REHMAN MARKET. THE TOTAL AMOUNT OF LOAN RAISED FOR ACQUISITION OF HOUSE IS AROUND RS.42,50,000 AND THE SAME IS BEING REPAID 8 IN MONTHLY INSTALLMENTS. IN THIS YEAR, INTEREST PAI D BY THE ASSESSEE IS OF RS.1,88,582. SHE CLAIMED REDUCTION OF HER INCOME BY A SUM OF RS.1,50,000 FOR THE PURPOSE OF COMPUTATION. THE ASSESSING OFFIC ER HAS DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT ASSESSEE F AILED TO FURNISH A CERTIFICATE INDICATING THE PAYMENT OF INTEREST AS R EQUIRED BY LAW. 12. APPEAL TO THE LEARNED CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 13. LEARNED FIRST APPELLATE AUTHORITY HAS CONFIRMED THE DISALLOWANCE ON SOME DIFFERENT GROUNDS. IN HIS OPINION, ASSESSEE WA S RESIDING WITH HER HUSBAND AND DID NOT OCCUPY THE PROPERTY FOR HER RES IDENCE. THUS, ASSESSEE IS NOT ENTITLED TO CLAIM INTEREST ON HOUSE LOAN UNDER SEC. 24B OF THE ACT. 14. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORDS CAREFULLY. THE FIRM M/S. LAXMAN DASS BH ATIA HINGWALA IS ASSESSED WITH THE SAME ASSESSING OFFICER. THE ASSES SEE HAS SHOWN HOUSE LOAN FROM THIS FIRM NOT DISPUTED BY THE ASSESSING O FFICER. THE ONLY GRIEVANCE OF THE ASSESSING OFFICER IS THAT ASSESSEE FAILED TO GIVE CERTIFICATE AS REQUIRED BY SEC. 24(B) OF THE ACT INDICATING THA T SHE HAD PAID INTEREST ON SUCH HOUSE LOAN. THE LEARNED CIT(APPEALS) DID NOT F IND THIS GROUND AS A LOGICAL ONE FOR MAKING THE DISALLOWANCE BUT CONSIDE RED A DIFFERENT REASON I.E. THE ASSESSEE WAS NOT OCCUPYING THE HOUSE WHICH WAS PURCHASED AFTER 9 AVAILING LOAN. IN OUR OPINION, ASSESSEE HAS HER IND IVIDUAL IDENTITY. SHE IS ASSESSABLE TO INCOME-TAX ACT. SHE IS HAVING HER IND EPENDENT SOURCE OF INCOME. SHE IS REGULARLY ASSESSED TO TAX. FOR THIS ASSESSMENT YEAR ALSO, SHE HAS DECLARED AN INCOME OF RS.1,26,240. SHE WAS FOUN D WITH HER HUSBAND ON A DIFFERENT PREMISES AT THE TIME OF SEARCH THAT DOE S NOT MEAN THAT SHE CANNOT CLAIM DEDUCTION OF INTEREST EXPENSES ON A HOUSING L OAN IN HER INDIVIDUAL RETURN. WE COULD HAVE UNDERSTOOD THE CASE OF ASSESS ING OFFICER IF SHE HAS REFERRED TO ANY PROVISION OF THE ACT OR HELD THAT A SSESSEE HAS NO TAXABLE INCOME FROM HER INDEPENDENT SOURCE. LEARNED CIT(APP EALS) HAS ALSO NOT QUOTED ANY PROVISION FROM THE ACT INDICATING THE FA CT THAT SUCH DEDUCTION IS NOT ADMISSIBLE TO AN ASSESSEE IF SHE IS LIVING WITH HER HUSBAND. LEARNED DR WAS ALSO NOT ABLE TO BRING ANYTHING TO OUR NOTICE. SECTION 24(B) NOWHERE PUT ANY RESTRICTION ON SUCH CLAIM FOR THE REASONS ASSIG NED BY THE LEARNED CIT(APPEALS) AS WELL AS ASSESSING OFFICER. THE REAS ONS OF THE ASSESSING OFFICER IS ONLY CUREABLE ONE, THE INTEREST EXPENSES CAN BE VERIFIED FROM THE DETAILS OF THE ASSESSEE AS WELL AS FROM THE DETAILS OF THE FIRM WHICH IS LYING WITH THE SAME ASSESSING OFFICER. THEREFORE, WE ALLO W THIS GROUND OF APPEAL AND DELETE THE DISALLOWANCE. 10 15. IN THE RESULT, THE APPEAL BEARING ITA NO.2682/D EL/09 IS ALLOWED AND THE APPEAL BEARING ITA NO.2680/DEL/09 IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON .12 .2009 ( DEEPAK R. SHAH ) ( RAJP AL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: /12/2009 MOHAN LAL COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR:ITAT ASSISTANT REGISTRAR