The ITO, Ward-9(3), Ahmedabad V. Dr. Hitendra M.Shah, Ahmedabad

ITA 2796/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63183 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 03-12-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 13-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH SR DR
• Keywords: Unexplained cash credit; Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2796/AHD/2009 ASSESSMENT YEAR :2005-06 INCOME TAX OFFICER, WARD-9(3), NEW AAYAKAR BHAVANA, 2 ND FLOOR, ROOM NO. A-205, OP;. SAHAJANAND COLLEGE, PANJRAPOLE, AMBAWADI, AHMEDABAD 380 015 V/S . DR. HITENDRA M SHAH, A/26, ZALAK COMPLEX, PALDI, BHATTA, AHMEDABAD 380 007 [ PAN NO.AJMPS 6707P ] / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI D.K. SINGH, SR-DR /BY RESPONDENT NONE /DATE OF HEARING 03-12-2012 /DATE OF PRONOUNCEMENT 07-12-2012 / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD (CIT(A) FOR SHORT) DATED 07-08-2009 FOR THE ASSESSMENT YEAR (AY) 2005- 06. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1) THE LD. COMMISSIONER OF INCOME-TAX (A)-XV, AHME DABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 725000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED GIFT U/ S 68 OF THE I.T. ACT, 1961. 2) THE LD. CIT[A]-XXV, AHMEDABAD HAS ERRED IN LAW A ND ON FACTS IN DELETING THE ADDITION OF RS.68258/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S. 68 OF THE I.T. ACT. 1961. ITA NO.2796/AHD/2009 A.Y. 2005-06 ITO WD-9(3) ABD V. DR. HITENDRA M SHAH PAGE 2 2. NONE ATTENDED ON BEHALF OF ASSESSEE DESPITE SERV ICE OF NOTICE, THEREFORE THE APPEAL IS TAKEN UP FOR HEARING IN THE ABSENCE OF ASSESSEE. 3. BRIEFLY STATED FACTS ARE THAT THE CASE OF ASSES SEE WAS SELECTED FOR SCRUTINY ASSESSMENT FOR THE AY 2005-06 AND THE ASSE SSMENT U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) WAS FRAMED VIDE ORDER DATED 28-11-2007 THEREBY, THE ASSESSING OFFIC ER MADE VARIOUS ADDITIONS INCLUDING THE ADDITION IN RESPECT OF GIFT OF RS.7.2 5 LAKH RECEIVED BY THE ASSESSEE FROM ITS SISTER-IN-LAW AND ALSO UNEXPLAINE D CREDIT OF RS.1,38,258/- APPEARING IN THE BANK ACCOUNT OF THE DAUGHTER OF TH E ASSESSEE. THE ASSESSEE FEELING AGGRIEVED BY THE ORDER OF ASSESSING OFFICER FILED APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE PARTLY ALLOWED THE APPEAL. 4. NOW, THE REVENUE IS IN APPEAL AGAINST THE ORDER OF LD. CIT(A). 5. FIRST GROUND OF THE REVENUE IS AGAINST THE DELET ION OF ADDITION OF RS.7.25 LAKH MADE BY THE ASSESSING OFFICER ON ACCOU NT OF UNEXPLAINED GIFT U/S. 68 OF THE ACT. LD. SR-DR APPEARING ON BEHALF O F REVENUE SUBMITTED THAT LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT AO HA D CALLED FOR CERTAIN DETAILS WHICH WERE NOT SUPPLIED BY ASSESSEE AND THEREFORE T HE AO WAS JUSTIFIED IN MAKING ADDITION. HE STRONGLY SUPPORTED THE ORDER OF AO. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA LS AVAILABLE ON RECORD. WE FIND THAT ASSESSING OFFICER HAD MADE ADD ITION ON THE BASIS THAT THE ADDRESS AS GIVEN IN BANK ACCOUNT OPENING FORM AND T HE ADDRESS ON CONFIRMATION GIVEN BY THE DONOR WAS DIFFERENT, THER EFORE, AO MADE ADDITION ON THE BASIS THAT SINCE THE ADDRESS WAS NOT MATCHING L ED TO THE CONCLUSION THAT THE DONOR AND NRE ACCOUNT HOLDER ARE TWO DIFFERENT PERSON. WE FIND THAT AO HAS RECORDED THE FOLLOWING SUBMISSIONS OF ASSESSEE IN HIS ASSESSMENT ORDER, WHICH IS REPRODUCED HEREINBELOW:- ITA NO.2796/AHD/2009 A.Y. 2005-06 ITO WD-9(3) ABD V. DR. HITENDRA M SHAH PAGE 3 ATTENTION IS INVITED TO CONTENTS OF PARA 2 OF MY L ETTER DATED 1 ST AUGUST, 2007 AND THE VARIOUS DOCUMENTS PLACED ON YOUR RECOR DS IN CONNECTIONS WITH GIFT OF RS.7,25,000/- RECEIVED BY ME FROM MY S ISTER IN LAW I.E. MY BROTHERS WIFE. MY BROTHER AND MY SISTER IN LAW HAV E BEEN STAYING IN AMERICA FROM MORE THAN FORTY YEARS AND HAVE CREDIT WORTHINESS OF MORE THAN TWO MILLION USD. I AM ENCLOSING HEREWITH AS DE SIRED BY YOU PHOTOCOPY OF MY PASSPORT DATED 28 TH JUNE, 2006, PHOTOCOPY OF PASSPORT OF MY SISTER IN LAW I.E. SMT. KALPANA ARVINDKUMAR D ATED 13 TH FEBRUARY, 1993 ISSUED BY USA AND PHOTOCOPY OF PASSPORT DATED 10 TH JUNE, 1999 ISSUED TO MY BROTHER SHRI ARGINDKUMAR SHAH BY USA. IT BE NOTED THAT MY BROTHER AND HIS WIFE ARE CITIZENS OF USA AND HAV E BEEN STAYING OVER THERE. IT IS SUBMITTED THAT THE ONUS OF PROVING AND ESTABLISHING THE GENUINENESS OF THE GIFT HAS BEEN COMPLETELY DISCHAR GED BY ME. I HAVE PLACED ON YOUR RECORDS THE CONFIRMATION FROM THE PA RTY, THE DETAILS OF THE BANK ACCOUNTS, THE DETAILS OF THE CITIZENSHIP OF TH E DONEE IN USA. THE SOCIAL SECURITY NUMBER OF THE DONEE WHICH IS QUITE CONFIDENTIAL HAS ALSO BEEN PLACED ON YOUR RECORD. SHOULD YOU DESIRE TO MA KE ANY COMMUNICATION WITH THE PARTY OR THE REVENUE SERVICE OF USA DIRECTLY ON THE BASIS OF THE DOCUMENTS/SOCIAL SECURITY NO PR OVIDED BY ME I.E. ADDRESS, PASSPORT NUMBER, BANK DETAILS, SOCIAL SECU RITY NO YOU CAN ESTABLISH WITH THE DIRECTLY APPROACH AND GET DETAIL S OF THE GIFT AND CONFIRMATION OF THE GIFT. IT IS NOT DISPUTED BY REVENUE THAT ASSESSEE HAS SUP PLIED THE DETAILS OF PASSPORT, BANK ACCOUNT, SOCIAL SECURITY NUMBER, THE REFORE, THE ASSESSING OFFICER HAD MATERIALIZE DETAILS BEFORE HIM. MOREOVE R, THE DONOR CONFIRMED THE PAYMENT OF GIFT. SINCE THE AO DID NOT MAKE ANY FURT HER ENDEAVOR TO MAKE INQUIRY IN RESPECT OF THE DETAILS SUBMITTED BY ASSE SSEE, WE DO NOT FIND ANY INFIRMITY INTO THE ORDER PASSED BY LD. CIT(A) DELET ING THE ADDITION OF RS.7.25 LAKHS. HENCE, THIS GROUND OF REVENUES APPEAL IS DI SMISSED. 7. NEXT GROUND IS WITH REGARD TO DELETION OF ADDITI ON OF RS.68,258/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. LD. SR-DR SUPPORTED THE ORDER OF ASSESSING OFFICER. 8. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA LS AVAILABLE ON RECORD. WE FIND THAT LD. CIT(A) GIVEN A FINDING OF FACT THAT WHILE GIVING COMMENTS ON THE REMAND REPORT. IT WAS SUBMITTED BY THE ASSESSEE THAT A SUM ITA NO.2796/AHD/2009 A.Y. 2005-06 ITO WD-9(3) ABD V. DR. HITENDRA M SHAH PAGE 4 OF RS.68,258/- WAS CREDITED ON THE MATURITY OF FIXE D DEPOSIT IN THE NAME OF MINOR DAUGHTER, ASTHA H SHAH WHICH WAS GIVEN BY HER GRANDMOTHER WAS OBVIOUS FROM THE PASS-BOOK. THIS FINDING OF THE FAC T IS SUPPORTED WITH THE EVIDENCE AT PAGE-54 OF THE PAPER BOOK FILED BY THE ASSESSEE, WHEREIN THIS FIGURE OF RS.68,258/- IS REFLECTED AS TRANSFER FROM FD ACCOUNT. SINCE THE FINDING OF FACT IS NOT CONTROVERTED BY THE REVENUE, WE DO NOT FIND ANY REASON TO INTERFERE INTO THE ORDER OF LD. CIT(A). HENCE, S AME IS HEREBY UPHELD. THIS GROUND OF REVENUES APPEAL IS REJECTED. 9. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !' #-07/12/2012 )*+ , --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '+'-2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. .67 ---2, -2 , )*+ / DR, ITAT, AHMEDABAD 6. 7:; <= / GUARD FILE. BY ORDER/ , /TRUE COPY/ >/) '? -2 , )*+ , STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 04/12 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 04/12 4) DATE OF CORRECTION 05/12, 05/12 ITA NO.2796/AHD/2009 A.Y. 2005-06 ITO WD-9(3) ABD V. DR. HITENDRA M SHAH PAGE 5 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 06/12 7) ORDER UPLOADED ON 07/12 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 07/12