ACIT, New Delhi V. Ms. Seema Jain, Delhi

ITA 2743/DEL/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3848 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMIT GOYAL
• Assessee Lawyers: H K CHAUDHARY
• Keywords: Gift
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.2743/DEL/2017 ASSESSMENT YEAR 2008-09 ACIT, CIRCLE-59(1), NEW DELHI V. MRS. SEEMA JAIN, 12, DAYANAND VIHAR, DELHI. TAN/PAN: AAFPJ6460J (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI RAJ KUMAR GUPTA & SUMIT GOYAL, ADV. RESPONDENT BY: SHRI H.K. CHAUDHARY SR.D.R. DATE OF HEARING: 28 10 2020 DATE OF PRONOUNCEMENT: 29 10 2020 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE IMPUGNED ORDER DATED 23.02.2017, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-IX, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.153C READ WITH SEC TION 153A FOR THE ASSESSMENT YEAR 2008-09. IN THE GROUND S OF APPEAL, THE REVENUE HAS TAKEN FOLLOWING GROUNDS. 1. THE ORDER OF THE LD. CIT(A) IS BAD IN LAW. 2. THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FAC TS OF THE CASE THAT, THE LOANS TAKEN BY THE ASSESSEE ARE NOT GENUI NE. THE CLOSE RELATIONSHIP/NEXUS BETWEEN THE ASSESSEE AND T HE PARTIES FROM WHOM LOAN HAS BEEN TAKEN IS A MERE FAC ADE TO I.T.A. NO.2743 /DEL/2017 2 ROUTE UNACCOUNTED MONEY. IT IS A FACT THAT THE HUSB AND OF THE ASSESSEE AND SEVERAL OTHER FAMILY MEMBERS ARE ENGAG ED IN THE BUSINESS OF REAL ESTATE. IT IS APPARENT THAT CH ANNELING MONEY THROUGH ENTITIES IS ONLY A MEANS TO REINTRODU CE UNACCOUNTED MONEY GENERATED THROUGH THE FAMILY BUSI NESS. IT IS PERTINENT TO NOTE THAT, THE LD. CIT(A) HAS UPHEL D THAT THE LOANS ADVANCED TO THE ASSESSEE BY VARIOUS OTHER PAR TIES (SH. BHAWGAN SINGH., SH. SUDAM CHAUHAN, SH. VISHWANATH, SH. MANAK CHAND) ARE NOT GENUINE. 3. THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THA T THE LOANS TAKEN DURING AY 2008-09 WERE REPAID ONLY AFTER THE COMMENCEMENT OF ASSESSMENT PROCEEDINGS. 2. THE BRIEF FACTS QUA THE ISSUE RAISED IN THE GROU NDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL. A SEARCH AND SE IZURE ACTION WAS CARRIED OUT U/S.132(1) ON 19.10.2011 AT THE PRE MISES OF AGARWAL ASSOCIATES AND JAINCO GROUP OF CASES. DURIN G THE COURSE OF SEARCH CERTAIN MATERIAL WAS FOUND AND SEI ZED WHICH RELATED TO THE ASSESSEE AND ACCORDINGLY, THE PROCEE DINGS U/S.153C READ WITH SECTION 153A WERE INITIATED. 3. LD. ASSESSING OFFICER ON PERUSAL OF THE DOCUMENT S NOTED THAT ASSESSEE HAS TAKEN UNSECURED LOAN FROM THE FOL LOWING PERSONS WHICH WAS OUTSTANDING ON 31 ST MARCH, 2008:- S.NO. NAME AMOUNT OUTSTANDING AS ON 31.03.2008 IN RS. 1. DEEPA JAIN 3,00,000/- 2. SUNITA JAIN 3,00,000/- I.T.A. NO.2743 /DEL/2017 3 3. M/S. ABHINAV COLONIZERS PVT. LTD. 50,00,000/- 4. M/S. UPHAAR BUILDERS PVT. LTD. 50,00,000/- 5. LAXMI CHAND GUPTA 1,40,000/- 6. SUMIT GUPTA 60,00,000/- TOTAL 1,67,40,000/- 4. HE OBSERVED THAT DURING THE PREVIOUS ASSESSMENT PROCEEDINGS, THESE PARTIES HAVE BEEN SHOWN AS SUNDR Y CREDITORS AND NOT AS UNSECURED LENDERS. HE FURTHER OBSERVED THAT ASSESSEE HAD TAKEN MONEY FROM HER HUSBAND SHRI P.K. JAIN IN FINANCIAL YEAR 2007-08 AND WAS ALSO SHOWN A S A SUNDRY CREDITOR IN HER BOOKS OF ACCOUNTS AND THIS A MOUNT LATER ON HAS BEEN SQUARED UP BY TREATING IT AS A GI FT GIVEN BY HER HUSBAND. THUS, HE PRESUMED THAT THIS IS SOME KI ND OF MODUS OPERANDI CARRIED OUT BY THE ASSESSEE FOR TREATING LOANS AS GIFT IN HER BOOKS AND ACCORDINGLY, HE TREATED TH E SUMS AGGREGATING TO RS.1,67,40,000/- AS GIFT FROM UNRELA TED PERSONS AND TREATED AS ASSESSEES INCOME U/S.56(VI) . 5. LD. CIT (A) HAS DELETED THE SAID ADDITION AFTER OBSERVING AND HOLDING AS UNDER:- 10.2 ASSESSMENT CANNOT BE MADE ON THE BASIS OF PRESUMPTION. JUST BECAUSE THE HUSBAND HAS TREATED H IS LOAN AS A GIFT CANNOT BE A REASON FOR DRAWING A CONCLUSION THAT OTHER PERSON WILL ALSO CONVERT THEIR LOAN TO A GIFT, ESPE CIALLY WHEN THE BOOKS REFLECT THE SAME AS A LOAN. THE SAME CANNOT B E TREATED AS I.T.A. NO.2743 /DEL/2017 4 A GIFT TO BRING IT WITHIN PURVIEW OF SECTION 56(2)( VII) OF THE ACT AND SECTION 56(VII) DEALS WITH RECEIPT OF MONEY WITHOUT ANY OBLIGATION TO REPAY. A LOAN CANNOT BE TREATED AS A SUM OF MONE Y RECEIVED WITHOUT CONSIDERATION BECAUSE THE ASSESSEE WAS ONLY A CUSTODIAN OF MONEY WITH AN OBLIGATION TO REPAY THE SAME ON DEMAND AS HAS BEEN HELD IN THE FOLLOWING CASE LAW. ACIT VS. SARANPAL SINGH, HUF IN ITA 692/CHD/2009 CHANDRAKANT H. SHAH VS. INCOME TAX OFFICER, 124 ITD 177/121 TTJ 145 JCIT VS. VIRAT DHINGRA, ITA NO. 1141/DHD/2011, ORDE R DATED 01/05/2012 INCOME TAX OFFICER VS. RAJESH GULATI, ITA NO.1129/CHD/2009, ORDER DATED 31/08/2010. 10.3 THEREFORE, THE ADDITION IS DELETED. 6. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE MATERIAL PLACED ON RECORD, WE FIND THAT ASSESSING O FFICER HAS MADE THE ADDITION IN RESPECT OF UNSECURED LOAN AS A GIFT PURELY ON THE BASIS OF SURMISES AND PRESUMPTION, BE CAUSE HER HUSBAND, SHRI P.K. JAIN, HAS ALSO GIVEN UNSECUR ED LOAN WHICH HAS BEEN SUBSEQUENTLY TREATED AS GIFT BY THE ASSESSEE. INFERRING THE SAME YARDSTICK, ASSESSING OFFICER HAS TREATED THE LOAN TAKEN FROM UNRELATED PERSON FOR SUMS AGGREGATI NG TO RS.1,67,40,000/- AS GIFT AND HAS TAXED U/S.56(VI). WE CONCUR WITH THE FINDING AND THE OBSERVATION OF THE LD. CIT (A) THAT, SIMPLY BECAUSE HUSBAND HAS TREATED HIS LOAN AS A GI FT TO HIS WIFE, CANNOT BE THE REASON FOR DRAWING A SIMILAR CO NCLUSION I.T.A. NO.2743 /DEL/2017 5 FOR UNRELATED PARTIES THAT THE OTHER PERSONS WILL A LSO CONVERT THEIR LOAN TO GIFT, ESPECIALLY WHEN IN THE BOOKS OF ACCOUNT AMOUNT HAS BEEN REFLECTED AS LOAN. THE LD. COUNSEL FOR THE ASSESSEE HAS BROUGHT ON RECORD THAT, THESE LOANS HA S BEEN REPAID BACK IN THE SUBSEQUENT YEAR, AND THEREFORE, AMOUNT WHICH HAS BEEN TREATED AS LOAN IN THE BOOKS OF ACCO UNT AND HAS ALSO BEEN REPAID BACK AS A LOAN, SAME CANNOT BE TREATED AS A GIFT. WE DO NOT FIND ANY REASON TO INTERFERE I N THE ORDER OF THE LD. CIT (A), AND THEREFORE, THE APPEAL OF THE R EVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER, 2020. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH OCTOBER, 2020 PKK: