Shanti Devi, New Delhi V. ITO, New Delhi

ITA 271/DEL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7461 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 04-12-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 18-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: VED JAIN SMT RANU JAIN; V MOHAN CHAURSHIYA CAS
• Keywords: Gift; Income from undisclosed sources; Reassessment proceedings
• Section: 69C; 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, A M AND SH. A. T. VARKEY , J M ITA NO. 272/DEL/2012 : ASSTT. YEAR : 2003 - 04 SMT. SUDESH THAKRAN, PU - 104, VISHAKHA ENCLAVE , PITAMPURA, DELHI - 110034 VS INCOME TAX OFFICER, WARD - 25 (1 ), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AACPT1748E ITA NO. 271/DEL/2012 : ASSTT. YEAR: 2003 - 0 4 SHANTI DEVI, PU - 104, VISHAKHA ENCLAVE, PITAMPURA, DELHI - 110034 VS INCOME TAX OFFICER, WARD - 25(1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAEPD2692P A SSESSEE BY : SH. VED JAIN, SMT. RANU JAIN & SH. V. MOHAN CHAURSHIYA, CAS. REVENUE BY : SH. B. R. R. KUMAR , SR. DR DATE OF HEARIN G : 04 .1 2 . 2014 DATE O F PRONOUNCEMENT : 19 . 1 2 .2014 ORDER P ER N. K. SAINI , AM: THESE TWO APPEALS BY THE ASSESSEE S ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A) - XXIV, NEW DELHI DATED 17.11.2011 IN THE CASE OF M/S SUDESH THAKRAN AND DATED 16.11.2011 IN THE CASE OF M/S SHANTI DEVI . 2. SINCE THE ISSUES INVOLVED ARE COMMON AND THE APPEALS WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 2 3 . FIRSTLY WE WILL DEAL WITH ITA NO. 272 /DEL/ 2012 FOR THE ASSESSMENT YEAR 2003 - 04 RELATING TO SMT. SUDESH THAKRAN . FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONE R OF INCOME TAX (CIT(A)) IS BAD, BOTH IN THE EYE OF LAW AND ON THE FACTS. 2 (I) . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING THE ACTION OF THE AO IN INITIATING THE PROCEEDINGS UNDER SECT ION 147, READ WITH SECTION 148, IGNORING THE FACT THAT THE SAME WAS BAD IN THE EYE OF LAW AS THE CONDITION AND PROCEDURE PRESCRIBED UNDER THE STATUTE HAVE NOT BEEN SATISFIED. (II)ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOT H ON FACTS AND IN LAW IN UPHOLDING THE REOPENING DESPITE THE FACT THAT THE REASSESSMENT PROCEEDINGS INITIATED BY THE LEARNED A.O ARE BAD IN THE EYE OF LAW AS THE REASONS RECORDED FOR THE ISSUE OF NOTICE UNDER SECTION 148 ARE BAD IN THE EYE OF LAW AND ARE C ONTRARY TO THE FACTS. 3 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE ASSESSEE THAT THE ORDER PASSED BY THE AO U/S 147 OF THE ACT IS BAD AND LIABLE TO BE QUASHED AS TH E SAME HAS BEEN PASSED WITHOUT SERVICE OF STATUTORY NOTICE U/S 148 OF THE ACT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE REASSESSMENT PROCEEDINGS ARE BARRED BY LIMITATION AS THE REASONS FOR REOPENING WERE NOT PROVIDED UPTO THE END OF SIX YEARS FR OM THE END OF THE RELEVANT ASSESSMENT YEAR. ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 3 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE ASSESSEE THAT IN THE ABSENCE OF VALID SERVICE OF NOTICE UNDER SECTION 148 T HE REASSESSMENT PROCEEDINGS INITIATED BY THE ITO, WARD 25(1) IS WITHOUT JURISDICTION AND BAD IN LAW. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSMENT IS REOPENED WITHOUT APPLICATION OF MIND BY THE ASSESSING OFFICER. 7. ON THE FACTS AND CIRCU MSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE ASSESSEE THAT THE AO HAS ERRED IN MAKING ADDITIONS BEYOND THE REASONS RECORDED FOR REOPENING THE ASSESSMENT. 8(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING AN ADDITION OF RS. 5,00,000/ - AS INCOME FROM UNDISCLOSED SOURCES UNDER SECTION 68 OF THE ACT. (II) THAT THE ABOVE SAID ADDITION WAS MADE IGNORING THE MATERIAL AND EVIDENCE S BROUGHT ON RECORD BY THE APPELLANT IN SUPPORT OF HIS CONTENTION AND BY INDULGING IN SURMISES AND CONJECTURE. (III) THAT THE ABOVE SAID ADDITION WAS MADE DESPITE THE ASSESSEE BRINGING ALL THE MATERIAL AND EVIDENCES ON RECORD TO PROVE THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE ASSESSEE. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN MAKING ADDITION OF RS. 5,00,000/ - FROM SARITA GUPTA DESPITE THE FACT THAT THE DONOR HAS COME AND APPEARED B EFORE THE A.O. 10(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING AN ADDITION OF RS. 25,000/ - RECEIVED ON ACCOUNT OF COMMISSION TREATED AS INCOME FROM UNDISCLOSED SOURCES U/S 69C OF THE ACT. ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 4 (II) THAT THE ABOVE SAID ADDITION HAS BEEN MADE TAKING AN ADHOC RATE OF COMMISSION @ 5% WITHOUT THERE BEING ANY EVIDENCES OR MATERIAL BROUGHT ON RECORD FOR THE SAME. 11(I) THAT THE ABOVE - SAID ADDITIONS ARE UNTENABLE IN THE EYE OF LAW, HAVING BEEN MA DE ON THE BASIS OF THE MATERIAL COLLECTED AT THE BACK OF THE ASSESSEE WITHOUT PROVIDING COPY OF THE SAME & PROVIDING OPPORTUNITY TO REBUT THE SAME. (II) THAT THE ABOVE ADDITIONS ARE UNTENABLE IN THE EYE OF LAW, HAVING BEEN MADE WITHOUT PROVIDING OPPORTUNI TY TO CROSS EXAMINE THE PERSON ON THE BASIS OF WHOSE STATEMENT THE ALLEGATIONS HAVE BEEN MADE AGAINST THE APPELLANT. 12. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 4. AT THE FIRST INSTANCE THE LD. COUNSEL FOR THE AS SESSEE ARGUED THE GROUND NO S . 8 TO 11(II) WHICH RELATES TO THE CONFIRMATION OF ADDITION OF RS. 5,00,000/ - WHICH WAS RECEIVED BY THE ASSESSEE AS A GIFT FROM SMT. SARITA GUPTA AND RS. 25,000/ - ALLEGED COMMISSION ON THE AFORESAID GIFT. 5 . FACTS OF THE CASE IN BRIEF ARE THAT THE AO REOPENED THE ASSESSMENT U/S 148 OF THE IT ACT, 1961 (HEREINAFTER REFERRED TO ACT I N SHORT ) ON THE BASIS OF LARGE SC ALE INVESTIGATION CONDUCTED BY THE INVESTIGATION WING, DELHI TO UNEARTH A RACKET INVOLVING ACCOMMODATION ENTRY PRO VIDERS. THE ASSESSEE IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT FURNISHED THE COPY OF RETURN ALREADY FILED ON 19.09.2003 DECLARING AN INCOME OF RS. 38,518/ - AND AGRICULTURAL INCOME OF RS. 1,04,980/ - . ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 5 6 . DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE FURNISHED THE COPY OF COMPUTATION OF INCOME AND BALANCE SHEET IN WHICH THE ASSESSEE HAD SHOWN TO HAVE RECEIVED A GIFT OF RS. 5,00,000/ - . THE ASSESSEE ALSO FURNISHED THE COPY OF BANK ACCOUNT WITH BANK OF BARODA, MAURYA ENCLAVE, PITAMPURA, DELHI - 34, A/ C NO. 11506 WHICH REVEALED THAT THE ASSESSEE HAD RECEIVED A GIFT OF RS. 5,00,000/ - ON 13.07.2002 AND ALSO RECEIVED BANK INTEREST OF RS. 15,418/ - . SH E ALSO FURNISHED COPY OF GIFT DEED AND AN AFFIDAVIT OF SMT. SARITA GUPTA CONFIRMING TO HAVE GIFT ED RS. 5,00, 000/ - VIDE CHEQUE DATED 11.07.2010 DRAWN FROM RATNAKAR BANK, KAROL BAGH, NEW DELHI . A S PER AFFIDAVIT F ILED BY THE DONOR REVEALED THAT SHE MADE THIS GIFT OUT OF ABUNDANT LOVE & AFFECTION FOR THE DONEE. THE DONOR SMT. SARITA GUPTA APPEARED ON 08.12.2010 AND THE AO RECORDED HER STATEMENT ON OATH WHEREIN SHE ADMITTED THAT DUE TO SOCIAL RELATIONS WITH THE ASSESSEE SHE HAD GIVEN A GIFT OF RS. 5,00,000/ - TO HER WHICH WAS GIVEN OUT OF HER SHARE TRADING INCOME. THE AO , HOWEVER, POINTED OUT THAT ONE MR. MUKESH DEPOSI TED CASH OF RS. 5,00,000/ - ON 13.07.2002 IN THE BANK ACCOUNT OF SMT. SARITA GUPTA WHO ISSUED A CHEQUE TO THE ASSESSEE. THE AO OBSERVED THAT THE BANK ACCOUNT REVEALED THAT IT WAS NOT THE ASSESSEE WHO HAD RECEIVED A SO CALLED GIFT AFTER DEPOSITING CASH ON TH E SAME DAY OR A DAY EARLIER AND THE DONOR HAD ISSUED CHEQUE S TO SEVERAL OTHER PERSONS OF LA CS AND LAC S OF RUPEES AND HER OWN BALANCE IN THE BANK ACCOUNT REMAINED ONLY AROUND RS. 1,000/ - . THE AO POINTED OUT THAT SHRI SURINDER PAL SINGH, SHRI RAJAN JASSAL & SHRI MUKESH WERE THE MAIN ACCOMMODATION ENTRY OPERATORS AND SMT. SARITA GUPTA I.E. THE ASSESSEE, SMT. RANI SHARMA AND SMT. NEERU SACHDEVA ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 6 ETC. WERE ALSO A PARTY TO THESE OPERATORS WHO MAINTAINED THEIR BANK ACCOUNTS WITH VIJAYA BANK, RAM NAGAR, DELHI, RATNA KAR BANK, KAROL BAGH, NEW DELHI, STATE BANK OF BIKANER & JAIPUR, ROHINI, CORPORATION BANK, PASCHIM VIHAR, DELHI AND USED TO DEPOSIT CASH RECEIVED FROM THE BENEFICIARIES OF ENTRY OPERATION WHICH WAS TRANSFERRED FROM ONE BANK TO ANOTHER AND THEN USED TO GIVE THE CHEQUE TO THE BENEFICIARIES. HE ALSO POINTED OUT THAT THE ENTRY OPERATORS USED TO CHARGE COMMISSION FOR SUCH TRANSACTIONS TO BRING IT TO THE COLOUR DEVICE . HE, THEREFORE, HELD THAT THE SO CALLED GIFT OF RS. 5,00,000/ - RECEIVED BY THE ASSESSEE FROM SMT . SARITA GUPTA WAS NOT AT ALL A GIFT BUT ASSESSEE S OWN MONEY EARNED FROM UNDISCLOSED SOURCES AND ROUTED THROUGH THE BANK ACCOUNT OF SMT. SARITA GUPTA AND THIS TRANSACTION INDEED WAS A COLOURABLE DEVICE USED BY THE ASSESSEE TO GRAVE HER UNDISCLOSED INCOME . ACCORDINGLY, ADDITION OF RS. 5,00,000/ - WAS MADE U/S 68 OF THE ACT IN THE INCOME OF THE ASSESSEE. THE AO ALSO MADE A FURTHER ADDITION OF RS. 25, 000/ - I.E. 5% OF RS. 5,00,000/ - BY C ON SIDERING THE SAME AS THE AMOUNT SPENT FOR MAKING THE SHAM TRANSACTION. TH E RELIANCE WAS ALSO PLACED ON THE FOLLOWING CASES LAWS: CIT VS SUMITI DAYAL 214 ITR 801 (SC) ASHOK MAHENDRU & SONS (HUF) VS CIT (2008) 9 DTR (DELHI) 222 : (2008) 173 TAXMAN 178 MC - DEWELL VS CTO (1985) 154 ITR 148 (SC) CIT VS SOPHIA FINANCE LTD. 205 ITR 93 CIT VS PRECISION FINANCE LTD . 208 IT R 465 (CAL) NIZAM WOOD AGENCIES VS CIT 193 ITR 318 (ALL) ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 7 7 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE STATEMENT OF SMT. SARITA GUPTA WAS RECORDED BY THE AO UNDER OATH WHER EIN SHE STATED TO HAVE GIVEN A GIFT OF RS. 5,00,000/ - TO THE ASSESSEE DUE TO SOCIAL RELATIONS. 8. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE DONOR WAS NOT RELATED TO THE ASSESSEE AND THE AO PROCURED HER BANK ACCOUN T STATEMENT WHICH REVEALED THAT GIFT OF RS. 5,00,000/ - GIVEN TO THE ASSESSEE AND CASH DEPOSITED OF THE SAME AMOUNT WERE ON THE SAME DATE I.E. 13 .07.2002 BY ONE SHRI MUKESH. THE LD. CIT(A) WAS OF THE VIEW THAT IN TODAY S MATERIALISTIC WORLD, IT WOULD NOT ON LY BE RARE BUT ALMOST IMPOSSIBLE TO FIND A PERSON OF SUCH ALTRUISTIC AND PHILANTHROPIC BENT OF MIND , WHO WOULD BE SO GENEROUS AS TO GIFT A PRINCELY SUM OF RS. 5,00,000/ - TO A PERSON UNRELATED TO HER. THE LD. CIT(A) ALSO OBSERVED THAT THE ASSESSEE IN HER ST ATEMENT UNDER OATH BEFORE THE AO SATED THAT SHE HAD GIVEN A GIFT TO THE ASSESSEE OUT OF HER INCOME FROM SHARE TRADING BUSINESS BUT IT WAS NOT BORNE OUT BY HER BANK STATEMENT WHICH REVEALED THAT SHE HAD RECEIVED RS. 5,00,000/ - BY CASH DEPOSIT OF SAME AMOU NT THROUGH ONE SHRI MUKESH ON THE SAME DATE AND FINALLY HER BANK ACCOUNT STATEMENT REVELAED THE TRUE NATURE OF TRANSACTIONS CARRIED OUT BY HER, WHEREBY SHE HAD GIVEN LACS OF RUPEES TO DIFFERENT PERSONS AFTER DEPOSITING CASH IN HER BANK ACCOUNT EITHER OF TH E SAME DA TE OR A DAY PRIOR. THE LD. CIT(A) HELD THAT THE GENUINENESS OF THE GIFT GIVEN BY SMT. SARITA GUPTA TO THE ASSESSEE OF RS. 5,00,000/ - DID NOT GET ESTABLISHED ACCORDINGLY ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 8 THE SAME WAS CONFIRMED . HE ALSO CONFIRMED THE ADDITION OF RS. 25,000/ - ESTIMAT ED BY THE AO AS A COMMISSION FOR SUCH AN ACCOMMODATION ENTRY. THE R ELIANCE WAS PLACED ON THE FOLLOWING CASES LAWS: RAJINDER KUMAR MITTAL VS ACIT (2010) 003 ITR ( DEL TRIB) 0508 ITO VS SMT. USHA AGARWAL (2010) 001 ITR ( DEL TRIB.) 0593 ACIT VS RAJIV TANDON (2007) 294 ITR (AT) 0219 (DEL TRIB.) SAJAN DASS & SONS VS CIT (2003) 264 ITR 0435 (DEL) 9 . NOW THE ASSESSEE S IN APPEAL . T HE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE PRODUCED THE DONOR BEFORE THE AO WHO RECORDED HER STATEMENT WHEREIN THE DONOR CONFIRMED THE GIFT OF RS. 5,00,000/ - WAS GIVEN TO THE ASSESSEE AND ALSO EXPLAINED THE SOURCE OF THE SAME WHICH WAS HER INCOME FROM SHARE TRADING AND AGRICULTURAL ACTIVITIES. A RE FERENCE WAS MADE TO PAGE NOS. 34 TO 36 OF THE ASSESSEE S PAPER BOOK WHICH IS THE COPY OF THE STATEMENT OF THE DONOR SMT. SARITA GUPTA RECORDED BY THE AO ON OATH. IT WAS CONTENDED THAT THE DONOR IN HER STATEMENT CLEARLY STATED THAT SHE WAS ASSESSED TO TAX A ND FILING HER RETURN OF INCOME AND ALSO STATED THAT DUE TO SOCIAL RELATIONS SHE HAD GIVEN GIFT OF RS. 5,00,000/ - TO THE ASSESSEE AND THE SOURCE OF INCOME WAS ALSO EXPLAINED . HE ACCORDINGLY SUBMITTED THAT THE ASSESSEE DISCHARGE D THE ONUS CAST UPON HER BY PR ODUCING THE DONOR WHOSE STATEMENT WAS RECORDED BY THE AO WHEREIN THE GIVING OF GIFT TO THE ASSESSEE WAS CONFIRMED AND THE SOURCE OF THE SAME WAS ALSO EXPLAINED, THEREFORE, THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. RELIA NCE WAS PLACED ON THE DECISION OF THE ITAT ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 9 DELHI BENCH F IN THE CASE OF RITU CHOWDHERY VS ITO, WARD 25(1), NEW DELHI IN ITA NO. 273/DEL/2012 FOR THE ASSESSMENT YEAR 2003 - 04, ORDER DATED 30.08.2013. 10 . IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPOR TED THE ORDERS OF THE AUTHORITIES BELOW AND REITERATED THE OBSERVATIONS MADE IN THEIR RESPECTIVE ORDERS. HE ALSO SUBMITTED THAT ALTHOUGH THE IDENTITY OF THE DONOR WAS ESTABLISHED BUT THE CREDITWORTHINESS WAS NOT PROVED, THEREFORE, THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) WAS FULLY JUSTIFIED. IT WAS FURTHER STATED THAT THE ASSESSEE FURNISHED NEW EVIDENCES BEFORE THE LD. CIT(A) WHO ADMITTED THE SAME IN VIOLATION OF THE PROVISIONS CONTAINED IN RULE 46A OF THE INCOME TAX RULES, 1962. THE RELI ANCE WAS PLACED ON THE DECISION DATED 15.11.2011 OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS MANISH BUILDWELL PVT. LTD. COPY OF THE SAID ORDER WAS FURNISHED. IN HIS REJOINDER THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO VIOLATION O F RULE 46A OF THE I.T. RULES BECAUSE NO NEW DOCUMENT OR EVIDENCE WAS FURNISHED BEFORE THE LD. CIT(A). IT WAS EMPHASIZED THAT ALL THE DOCUMENTS PRODUCED BEFORE THE LD. CIT(A) WERE ALREADY AVAILABLE TO THE AO. 11 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT THE ASSESSEE RECEIVED A GIFT OF RS. 5,00,000/ - FROM SMT. SARITA GUPTA WHO WAS PRODUCED BEFORE THE AO THEREFORE, THE IDENTITY OF THE DON OR WAS ESTABLISHED. THE DONOR IN HER STATEMENT ON OATH RECORDED ON ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 10 08.12.2010 ( COPY OF WHICH IS PLACED AT PAGE NOS. 34 TO 36 OF THE ASSESSEE S COMPILATION ) WHILE ANSWERING QUESTION NO. 2 CLEARLY STATED THAT SHE WAS ASSESSED TO INCOME TAX VIDE PAN AAGPG045 9E AND SUBMITTED THE COPY OF THE RETURN OF INCOME. SHE ALSO DISCLOSED HER ADDRESS IN THE ABOVE SAID STATEMENT AND STATED THAT THE GIFT OF RS. 5,00,000/ - WAS GIVEN TO THE ASSESSEE VIDE CHEQUE NO. 003564 DATED 11.07.2002 DRAWN ON RATNAKAR BANK, KAROL BAGH, N EW DELHI FROM HER BANK A/C NO. SB - 0071 - 0 - 000 - 000328 AND SOURCE OF INCOME WAS STATED TO BE TRADING INCOME. SHE ALSO STATED THAT SHE WAS DOING THE BUSINESS OF TRADING IN SHARES FOR THE LAST 5 YEARS . T HEREFORE, IT WAS CLEAR FROM THE STATEMENT OF DONOR SMT. SA RITA GUPTA THAT THE GIFT WAS GIVEN TO THE ASSESSEE THROUGH BANKING CHANNEL AND SOURCE OF THE SAME WAS ALSO DISCLOSED, THE DONOR WAS REGULARLY ASSESSED COPY OF HER INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2003 - 04 IS PLACED ON PAGE NO. 1 OF THE ASSESSEE S P APER BOOK AND THE COMPUTATION OF INCOME IS PLACED AT PAGE NO. 2 OF THE ASSESSEE S COMPILATION WHICH REVEALED THAT THE DONOR WAS HAVING THE AGRICULTURAL INCOME ALSO. IN THE PRESENT CASE THE AO DID NOT DOUBT THE EARNING OF AGRICULTURAL INCOME OF THE DONOR , H E ALSO NOT DOUBTED THE SOURCE OF INCOME STATED BY THE DONOR. THE ASSESSEE PRODUCED THE DONOR , FURNISHED THE COPY OF DECLARATION OF GIFT WHICH IS PLACED AT PAGE NOS. 23 & 24 OF THE ASSESSEE S PAPER BOOK, SHE ALSO FURNISHED COPY OF THE AFFIDAVIT OF THE DONOR WHICH IS PLACED AT PAGE NO. 25 OF THE ASSESSEE S PAPER BOOK, THE DONOR IN HER STATEMENT ( COPY OF WHICH IS PLACED AT PAGE NOS. 34 TO 36 OF THE ASSESSEE S PAPER BOOK ) CLEARLY STATED THAT SHE HAD GIVEN A GIFT OF RS. 5,00,000/ - TO THE ASSESSEE , SHE ALSO ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 11 EXPLA INED THE SOURCE OF HER EARNING COPY OF HER RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND THE PRECEDING ASSESSMENT YEARS ARE PLACE D ON THE RECORD , THE BALANCE SHEET DATED 31.03.2 001 OF THE ASSESSEE IS PLACED AT PAGE NO. 27 OF THE ASSESSEE S PAPER BOOK WHICH REVEALED THAT THE DONOR WAS HAVING CAPITAL OF RS. 21,95,030/ - . THE DONOR ALSO FURNISHED COPY OF HER PAN WHICH IS PLACED AT PAGE NO. 29 OF THE ASSESSEE S PAPER BOOK, THEREFORE, THE ONUS CAST UPON THE ASSESSEE TO PROVE THE IDENTITY OF TH E DONOR HER CREDITWORTHINESS WHICH WAS ALSO DISCLOSED BY HER IN THE STATEMENT RECORDED BY THE AO ON OATH AND THE GENUINENESS OF THE TRANSACTION WHICH WAS THROUGH BANKING CHANNEL WAS DISCHARGED . WE, THEREFORE, BY CONSIDER ING THE TOTALITY OF THE FACTS AS DIS CUSSED HER E IN ABOVE ARE OF THE VIEW THAT THE AO WAS NOT JUSTIFIED IN TREATING THE IMPUGNED GIFT AS BOGUS AND THE LD. CIT(A) WRONGLY CONFIRMED THE SAME. SIMILARLY, THE ADDITION MADE BY THE AO ON ACCOUNT OF ALLEGED COMMISSION AMOUNTING TO RS. 25,000/ - WAS A LSO NOT JUSTIFIED. WE, THEREFORE, DELETE THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A). 12 . AS REGARDS TO THE ITA NO. 271/DEL/2012 IN THE CASE OF SMT. SHANTI DEVI VS ITO, WARD 25(1), NEW DELHI , THE FACTS ARE IDENTICAL AND EVEN THE RIVAL CONT ENTIONS WERE ALSO THE SAME AS WERE IN THE CASE OF SMT. SUDESH THAKRAN (SUPRA), THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS . I N THAT VIEW OF THE MATTER THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT( A) IN THE CASE OF SMT. SHANTI DEVI IS ALSO DELETED. ITA NO. 272 & 271/DEL/2012 SUDESH THAKRAN & SHANTI DEVI 12 13 . IN THE RESULT, THE APPEAL S FILED BY THE ASSESSEE S ARE ALLOWED . ( ORDER PRONOU N CED IN T HE OPEN COURT ON 19 / 12 / 2014 ) . SD/ - SD/ - (A. T. VARKEY ) ( N. K. SAINI ) JUDICI AL MEMBER ACCOUNTANT MEMBER DATED: 19 / 1 2 / 2014 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 09.12 . 2014 PS 2. DRAFT PLACED BEFORE AUTH OR 10 .12 . 2014 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.