ACIT 20(2), MUMBAI V. PRAVEEN KUMAR (IHUF), MUMBAI

ITA 2796/MUM/2009

• Counselvise Citation: 279619914 RSA 2009
• Duration Of Justice: 3 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-06-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 01-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Assessee Lawyers: SATISH MODI
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Question of law
• Section: 68; 263; 132; 2; 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 2796/M/09 ASSESSMENT YEAR 2000-01 ITA NO. 2798/M/09 ASSESSMENT YEAR 2002-03 ITA NO. 2800/M/09 ASSESSMENT YEAR 2004-05 ITA NO. 2802/M/09 ASSESSMENT YEAR 2006-07 THE ASST. COMMISSIONER OF INCOME TAX 20(2), 612, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400 012. VS. PRAVEEN KUMAR (HUF) C/002, RISHIKESH BUILDING, LOKHANDWALA COMPLEX, ANDHERI (W), MUMBAI-400 058. PAN: AACHP 2239 J (APPELLANT ) (RESPONDENT) REVENUE BY : SHRI A.C. TEJPAL, DR ASSESSEE BY : SHRI SATISH MODI DATE OF HEARING : 07-06-2012 DATE OF PRONOUNCEMENT : 27-06-2012 ORDER PER BENCH IDENTICAL EIGHT GROUNDS OF APPEAL FOR THREE ASSESSM ENT YEARS I.E. 2001-02, 2004-05,AND 2006-07 WERE FILED BY THE ASSESSING OFFICER (AO) AGAINST THE ORDER DT. 23-01-2009 OF THE CIT(A) -XX, MUMBAI. GROUNDS OF APPEAL READ AS UNDER : I. THE LEARNED CIT(A) HAS ERRED IN FACTS AND IN LA W AND IN THE CIRCUMSTANCES OF THE CASE IN DIRECTING TO ASSESS TH E INCOME GENERATED THROUGH SALE OF SHARES UNDER THE HEAD CA PITAL GAIN AND ALLOW THE VARIOUS DEDUCTION/EXEMPTION ON THE SA ME AS PER ITA NO. 2796, 2798, 2800, 2802/M/09 PRAVEEN KUMAR (HUF) 2 PROVISIONS OF THE ACT AS AGAINST THE ADDITIONS MADE BY THE AO AS UNEXPLAINED CASH CREDITS U/S.68 OF THE ACT. II. THE LEARNED CIT(A) HAS ERRED IN DIRECTING TO D ELETE THE ADDITION IN RESPECT OF HOUSEHOLD WITHDRAWAL. III. THE LEARNED CIT(A) HAS ERRED IN FACTS AND IN LAW AND IN CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING THE F ACTS THAT ENTIRE TRANSACTION GIVING RISE TO CAPITAL GAIN ARE MERELY AN ACCOMMODATION ROUTE, THROUGH WHICH THE UNACCOUNTED MONEY OF THE ASSESSEE HAS CONVERTED INTO ACCOUNTED MONEY IN THE GRAB OF LONG TERM CAPITAL GAIN ARISING ON ACCOUNT OF PURCHA SES AND SALE OF SHARES. IV. THE LEARNED CIT(A) HAS ERRED IN FACTS AND IN L AW AND IN CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING THE S UPREME COURT DECISION IN THE FOLLOWING CASES MACDOWELLS AND COMPANY LTD VS CTO 154 ITR 148, CIT VS. SRI MEENAKSHI MILLS LTD. 63 ITR 609, CIT VS DUR GAPRASAD MORE 82 ITR 540 AND JUGGILAL KAMAPAT VS CIT 73 IT R 702 (SC) V. THE LEARNED CIT(A) HAS ERRED IN HOLDING THE DET AILS FILED BEFORE THE A.O. PROVED THE GENUINENESS OF THE TRANSACTION WITHOUT VERIFYING THE DETAILS HIMSELF AS THERE IS NO FINDIN G IN HIS ORDER THAT THE DETAILS FILED WERE DULY VERIFIED BY HIM AN D FOUND TO BE CORRECT. VI. THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATI NG THE FACT THAT AFTER VERIFICATION AND FROM COPY OF INVOICES OF EXP ENDITURE FOUND FROM THE PREMISES OF THE ASSESSEE, IT IS QUITE CLEA R THAT THE ASSESSEE IS HAVING A LAVISH LIFE STYLE AND HOUSEHOL D DRAWING SHOWN BY THE ASSESSEE WERE INCREDIBLY LOW. VII. THE ASSESSEE PRAYS THAT THE ORDER OF THE CIT (APPEALS) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RE STORED. VIII. THE ASSESSEE CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR TO SUBMIT ADDITIONAL NEW GROUND WHICH MAY BE NECESS ARY. 2. THOUGH THERE ARE EIGHT GROUNDS OF APPEAL IN THE APP EAL MEMOS, YET MAIN GROUND ARE ONLY TWO- FIRST IS ABOUT DELETI ON OF ADDITION MADE BY THE AO U/S. 68 OF THE INCOME-TAX ACT,1961 (ACT) AND THE SECOND ONE IS ABOUT LOW WITHDRAWALS FOR HOUSEHOLD EXPENSES . 2.1 . FOR THE AY 2002-03 FOLLOWING GROUNDS WERE FILED BY THE AO CHALLENGING THE ABOVE REFERRED ORDER OF THE FIRST A PPELLATE AUTHORITY(FAA). ITA NO. 2796, 2798, 2800, 2802/M/09 PRAVEEN KUMAR (HUF) 3 I. THE LEARNED CIT(A) HAS ERRED IN DIRECTING TO DE LETE THE ADDITION IN RESPECT OF HOUSEHOLD WITHDRAWAL. II. THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATI NG THE FACT THAT AFTER VERIFICATION AND FROM COPY OF INVOICES OF EXP ENDITURE FOUND FROM THE PREMISES OF ASSESSEE, IT IS QUITE CLEAR TH AT THE ASSESSEE IS HAVING A LAVISH LIFE STYLE AND HOUSEHOLD DRAWING SH OWN BY THE ASSESSEE WERE INCREDIBLY LOW. III. THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIA TING THE FACTS OF THE CASE THAT THE AMOUNT OF RS. 75,00,000!- RECEIVE D BY THE ASSESSEE WAS NOT ABLE TO SATISFACTORILY EXPLAINED T HE SOURCE OF THE CASH RECEIVED AND HENCE THE AMOUNT OF RS. 75,00,000 !- WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S.69A. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN HOLDING THE GIFT OF RS. 75,00,000!- AS GENUINE SOLY ON THE GROUND THAT SIMILAR GIFT FROM T HE DONEE TO THE ANOTHER MEMBER OF THE FAMILY HAD BEEN ACCEPTED BY T HE DEPARTMENT AND PLACING RELIANCE IN THE JUDGEMENT OF THE HBLE MADRAS HIGH COURT IN THE CASE OF CIT VS MURTHUKARUP AN 290 ITR 154 WHEREAS FACTS OF THE CASE ARE DIFFERENT. IV. WHETHER THE LEARNED CIT(A) WAS JUSTIFIED IN IG NORING THE PRINCIPAL OF REJUDICATURE IN HOLDING THAT EVEN A MI STAKE HAD BEEN COMMITTED BY SOME OTHER A.O. IN ACCEPTING A GIFT BY THE SAME DONAR AS GENUINE THEN SUCH MISTAKE ON PART OF THE A .O. SHALL BE BINDING ON ALL OTHER A.OS IN RESPECT OF ALL OTHER G IFTS GIVEN BY THE SAME DONAR TO OTHER DONEES. V. THE APPELLANT PRAYS THAT THE ORDER OF TH E CIT(APPEALS) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. VI THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER A NY GROUND OR TO SUBMIT ADDITIONAL NEW GROUND WHICH MAY BE NECESS ARY. 3. FIRST WE WOULD LIKE TO DEAL WITH THE ORDERS FOR AYS . 2000-01, 2004-05 AND 2006-07 (ITA NOS. 2796/M/09; 2800/M/09; 2802/M/09). AS STATED ABOVE, IN THESE APPEALS, ONE OF THE GROUNDS OF APPEAL IS ABOUT ADDITION MADE BY THE AO U/S.68 OF T HE ACT ON ACCOUNT OF SHOWN LONG TERM CAPITAL GAIN (LTCG). 3.1 . AS PER BRIEF FACTS OF THE CASE, A SEARCH AND SEIZ URE ACTION U/S. 132 (1) OF THE ACT WAS CARRIED OUT ON 01-09-2005 IN THE GROUP CASES OF DILBAGH RAJ ARORA BASED AT KANPUR, MUMBAI AND DELHI . THE ASSESSEE HUF IS LOCATED AT MUMBAI. DURING THE SEARCH PROCEED INGS IT WAS FOUND THAT THE ASSESSEE GROUP-CONSISTING OF SHRI D ILBAGH RAI ARORA, HIS SONS S/SHRI SOM ARORA, ARUNKUMAR ARORA, PRAVEEN KUMAR ARORA ITA NO. 2796, 2798, 2800, 2802/M/09 PRAVEEN KUMAR (HUF) 4 NIRMAL ARORA, THEIR FAMILY MEMBERS AND HUFS.-HAD SH OWN LONG TERM CAPITAL GAIN (LTCG) IN THEIR RESPECTIVE RETURNS ON SALE OF SHARES OF VARIOUS LISTED COMPANIES THAT WAS SET OFF AGAINST B ROUGHT FORWARD LONG TERM CAPITAL LOSS OF EARLIER YEARS. IN THE ASSESSME NT ORDERS PASSED U/S 153A OF THE ACT, THE AO HELD THAT SHARE TRANSACTION S MENTIONED ABOVE WERE SHAM/ARRANGED TRANSACTIONS AND THAT THE ENTIRE SALE PROCEEDS RECORDED IN BOOKS OF ACCOUNTS OF THE ASSESSEE GROUP , INCLUDING THE ASSESSEE HUF, REPRESENTED UNEXPLAINED CASH CREDITS. PARTICULARS OF RETURNED INCOME AND ASSESSED INCOME U/S 153A OF THE ACT, IN RESPECT OF THE ASSESSEE HUF ARE AS UNDER : AY RETURNED INCOME ASSESSED INCOME 2000-01 16.90 LAKHS 2.88 CRORES 2002-03 10.33 LAKHS 86.93 LAKHS 2004-05 86.80 LAKHS 1.28CRORES 2006-07 99.64 LAKHS 1.25CRORES 3.2. AS MENTIONED, DURING THE ASSESSMENT PROCEEDINGS AO MADE ADDITION TO THE INCOME OF ASSESSEE ON TWO ACCOUNTS . THE YEAR-WISE DETAILS OF ADDITIONS MADE BY THE AO ARE AS UNDER : AY ADDITION ON A/C. OF UNEXPLAINED INVESTMENT ADDITION ON ACCOUNT OF LOW WITHDRAWALS TOTAL 2000-01 2.70 CRORES 1.2 LAKHS 2.71 CRORES 2002-03 _ 1.6 LAKHS _ 2004-05 1.19 CRORES 1.4 LAKHS 1.20 CRORES 2006-07 91.74 LAKHS 2.4 LAKHS 94.15 LAKHS 3.3. AS FAR AS ISSUE OF LONG TERM CAPITAL GAINS IS CONCE RNED, IT IS FOUND THAT AO HAS MADE ADDITION U/S. 68 OF THE ACT AS MENTIONED IN THE PREVIOUS PARAGRAPH FOR THE ASSESSMENT YEARS IN QUESTION. AS IN THE CASE OF SMT. POOJA ARORA AND SH.PRAVEEN KUMAR ( INDIVIDUAL)AO HELD IN THE CASE OF THE ASSESSEE HUF THAT THE TRANS ACTIONS OF LTCG ON ALLEGED SALE OF SHARES WERE FICTITIOUS AND THAT ENT IRE SALE PROCEEDS RECEIVED ON SALE OF SHARES WAS TO BE TAXED AS THE I NCOME OF THE ASSESSEE HUF FROM UNDISCLOSED SOURCES. ASSESSEE HUF PREFERRED AN APPEAL AGAINST THE SAID ORDER. FIRST APPELLATE AUT HORITY (FAA) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOLLOWING THE O RDERS OF THE CIT(A)-I, KANPUR AND ITAT LUCKNOW. WHILE DECIDING THE APPEAL OF, SMT. POOJA ARORA (ITANO.2788/MUM/ 2009AY 2004-05 AND ITA NO.2790/MUM/2009 AY 2006-07) AND SH.PRAVEEN KUMAR (INDIVIDUAL) (ITANO.2788/MUM/ 2009AY 2004-05 AND ITA NO.2790/ MU M/2009 AY 2006-07) WE HAVE DISCUSSED THE ORDER OF THE FAA PARAGRAPHS O F OUR SAID ORDERS. AFTER CONSIDERING THE ARGUMENTS OF THE AO AND THE FAA AND AFTER PERUSING THE ORDERS OF THE A BENCH, LUC KNOW IN THE CASES OF MEMBERS OF ARORA GROUP, WE HAVE HELD THAT ORDER OF THE FAA IN ITA NO. 2796, 2798, 2800, 2802/M/09 PRAVEEN KUMAR (HUF) 5 DELETING THE ADDITION MADE U/S. 68 NEEDS NO INTERFE RENCE. WE FIND THAT ORDERS PASSED BY THE AO AND FAA FOR THE ASSESSMENT YEARS UNDER CONSIDERATION ARE SAME AS IN THE CASE OF SMT. POOJA ARORA AND SH. PRAVEEN KUMAR (INDIVIDUAL)(SUPRA). ONLY DIFFERE NCE IS THE FIGURES OF ADDITIONS MADE BY THE AO AND AY IN WHICH SAID AD DITIONS WERE MADE. 4. BEFORE US, DEPARTMENTAL REPRESENTATIVE (DR) AND AUT HORISED REPRESENTATIVE (AR) MADE SIMILAR SUBMISSION AS IN T HE CASE OF SMT. POOJA ARORA AND SH. PRAVEEN KUMAR (INDIVIDUAL) (SUPRA). FOLLOWING THE SAID ORDERS WE UPHOLD THE ORDER OF TH E FAA. GROUNDS OF APPEAL NOS. 1 AND 3 TO 5 OF TH E AO FOR THE ASSESSMENT YEARS 2000-01, 2004-05 AND 2006-07 STAND DISMISSED. 5. NEXT GROUNDS OF APPEAL FOR ALL THE FOUR ASSESSMENT YEARS ARE ABOUT LOW WITHDRAWALS BY THE ASSESSEE FOR HIS HOUSE -HOLD EXPENSES (GROUND OF APPEAL NOS. 2AND 6 FOR THE AYS. 2000-01, 2004-05 AND 2006-07 AND GROUND NOS.1 AND 2 FOR AY.2002-03). AS STATED EARLIER THE AO HAS MADE ADDITION TO THE INCOME OF THE ASSES SEE FOR THE ASSESSMENT YEARS 2000-01, 2002-03, 2004-05 AND 2006 -07 AS MENTIONED IN THE TABLE AT PARAGRAPH3.2. FAA WHILE D ISPOSING THE APPEAL FILED BY THE ASSESSEE, IN THIS REGARD, FOUND THAT FOLLOWING WAS THE WITHDRAWAL BY THE ASSESSEE HUF, SMT. POOJA AROR A AND AND SH.PRAVEEN KUMAR (INDIVIDUAL)FOR THE ASSESSMENT YEA RS CONCERNED. A.Y. DRAWINGS BY PRAVEEN KUMAR ARORA (HUF.) DRAWINGS BY POOJA ARORA DRAWING S BY SH. PRAVEEN KUMAR (IND.) TOTAL 0120 2000 -01 2.58 LAKHS 2.4 LAKHS 4.98LAKHS 2002-03 1.70 LAKHS -- 1.98 LAKHS 3.68LAKHS 2004-05 6.11 LAKHS 3.6 LAKHS 60,348/- 10.32 LAKHS 2006-07 6.04 LAKHS 3 LAKHS 9.04LAKHS TOTAL 28.02LAKHS 5.1. AFTER CONSIDERING THE ASSESSMENT ORDER AND THE SUBM ISSIONS OF THE AR OF THE ASSESSEE, HE HELD THAT THE DRAWING S SHOWN BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2000-01 TO 2002-03 WERE ON LOWER SIDE. HE RESTRICTED THE ADDITION TO RS. 1,00,000/- EACH FOR THE ASSESSMENT YEARS 2000-01 AND 2002-03 AS AGAINST RS. 2.3 LAKHS AND RS. 4.6 LAKHS RESPECTIVELY. FOR THE ASSESSMENT YEA R 2001-02, HE UPHELD THE ENTIRE ADDITION OF RS. 44,183/-. THUS, THE ADDITION TO THE EXTENT OF RS. 2.44 LAKHS WAS UPHELD BY THE FAA. HE HELD THAT BALANCE ADDITIONS MADE IN ALL THE ASSESSMENT YEARS SHOULD B E DELETED AS DRAWING SHOWN BY THE ASSESSEE WERE ADEQUATE. 5.2. FROM THE ORDER OF THE FAA IT IS CLEAR THAT HE HAS T AKEN A REASONABLE STAND. WE FIND THAT FOR THREE ASSESSMENT YEARS, HE HAS ITA NO. 2796, 2798, 2800, 2802/M/09 PRAVEEN KUMAR (HUF) 6 UPHELD THE PART/ FULL ADDITIONS MADE BY THE AO. CON SIDERING THE TABLE AT PARAGRAPH 3.2 AND THE FINDINGS OF THE FAA, WE ARE OF THE OPINION THAT HIS ORDER DOES NOT SUFFER FROM ANY INFIRMITY. 5.3. UPHOLDING THE ORDER OF THE FAA, WE DISMISS THE GROU ND NOS. 2 AND 6 FOR THE AYS. 2000-01, 2004-05 AND 2006-07 AND GROUND NOS.1 AND 2 FOR THE AY. 2002-03. 6. NEXT GROUND OF APPEAL I.E., GROUND NO.3 IS ABOUT TH E ADDITION MADE ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE HU F. DURING THE YEAR UNDER CONSIDERATION AO FOUND THAT THE ASSESSEE HUF HAD RECEIVED GIFT AMOUNTING TO RS.75 LAKHS FORM MRS. NO REEN JAYANTILAL MANEK. AO DIRECTED THE ASSESSEE HUF TO PROVE CRED ITWORTHINESS OF THE DONOR AND THE GENUINENESS OF THE TRANSACTION. A FTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AO TREATED THE ENTI RE AMOUNT OF GIFT I.E. RS.75 LAKHS AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. 6.1. ASSESSEE HUF PREFERRED AN APPEAL BEFORE THE FAA. A FTER TAKING IN TO CONSIDERATION THE ASSESSMENT ORDER AND THE AR GUMENTS OF THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE HE H ELD THAT THE IDENTITY OF THE DONOR WAS NOT IN DISPUTE, THAT THE SOURCE OF THE GIFT WAS FULLY EXPLAINED BY WAY OF NECESSARY DOCUMENTARY EVI DENCES I.E. THE BANK ACCOUNT NO.154515 WITH BANK OF BARODA IN WHICH THE SALE PROCEEDS OF SALE OF APARTMENT WAS DEPOSITED AND THE GIFT WAS GIVEN OUT OF THE SAID SALE PROCEEDS DEPOSITED IN THE SAID BAN K ACCOUNT, THAT THE TRANSACTIONS BEING REGULAR BANKING TRANSACTION FROM THE KNOWN PERSONS WERE FULLY EXPLAINED, THAT THE ONLY ALLEGAT ION OF THE AO WAS WITH REGARD TO THE RELATION OF THE DONOR AND THE OC CASION OF GIVING SUCH A HUGE AMOUNT OF GIFT, THAT THE GIFT WAS MADE FROM THE SELF- GENERATED FUNDS OF THE DONOR FROM SALE OF APARTMENT FOR WHICH THE APPROPRIATE AUTHORITY OF THE DEPARTMENT HAS GRANTED NO OBJECTION CERTIFICATE U/S 269UL(3) OF THE ACT, THAT THE SAME DONOR HAD MADE SIMILAR GIFTS TO OTHER GROUP MEMBERS OF THE APPELLA NT I.E. RS.75 LAKHS TO SHRI DILBAGH RAI ARORA (HUF) AND RS.40 LAKHS EAC H TO SHRI SOM ARORA (HUF) AND SHRI RAJKUMAR ARORA (HUF) OF THE SA ME FAMILY, THAT AO HAD NOT BROUGHT ON RECORD ANY ADVERSE MATERIAL A GAINST THE CREDITWORTHINESS OF THE DONOR, THAT IN THE ABSENCE OF ANY ENQUIRY OR ANY ADVERSE MATERIAL ABOUT THE CREDITWORTHINESS OF THE DONOR, THE AO WAS NOT JUSTIFIED IN HOLDING THAT THE DONORS CREDIT WORTHINESS WAS IN DOUBT, THAT CONDUCT OF THE DONOR OR THE DONEE OR SU CH CIRCUMSTANCES WHICH CREATE DOUBT IN THE GENUINENESS OF THE TRANSA CTION OF THE GIFT HAD NOT BEEN BROUGHT ON RECORD BY THE AO, THAT NO E NQUIRIES IN THIS DIRECTION WERE CARRIED OUT BY THE AO, THAT THE GIFT WAS MADE OF HUGE AMOUNT, IN THE ABSENCE OF ANY MATERIAL TO DOUBT THE GENUINENESS OF THE GIFT, WOULD NOT BE SUFFICIENT TO TREAT THE GIFT AS NON-GENUINE OR BOGUS, THAT THE DONOR HAS CONFIRMED THAT SHE HAD V OLUNTARILY GIFTED THE AMOUNT TO THE DONEE OUT OF HER NATURAL LOVE AND AFFECTION, THAT SECTION 123 OF TRANSFER OF PROPERTY ACT, DOES NOT P ROVIDE THAT THE GIFTS SHOULD HE MADE TO A RELATIVE ONLY, THAT THAT AS PER THE LAW OF THE LAND, ITA NO. 2796, 2798, 2800, 2802/M/09 PRAVEEN KUMAR (HUF) 7 NO SPECIFIC OCCASION IS REQUIRED FOR MAKING GIFTS. FINALLY HE HELD THAT IN THE ABSENCE OF ANY COGENT MATERIAL TO SUPPORT HI S FINDINGS, THE GENUINITY OF THE GIFT CANNOT HE DOUBTED. 6.2. HE NOTED THAT CIT(A)-I, KANPUR, ON THE SIMILAR FACT S AND CIRCUMSTANCES IN THE MATTERS OF DILBAGH RAI ARORA ( HUF), SOM ARORA (HUF) AND RAJKUMAR ARORA (HUF) HAD ACCEPTED THE GIF TS AS GENUINE TRANSACTION AND HAD DELETED THE ADDITION MADE BY TH E AO. HE ALSO NOTICED THAT ITAT LUCKNOW BENCH HAD UPHELD THE ORDE R OF THE CIT(A)- I, KANPUR. 6.3. ON ACCOUNT OF ABOVE REFERRED DISCUSSION AND SPECIFI C ORDERS OF THE ITAT LUCKNOW, WE ARE OF THE OPINION THAT THE OR DER OF THE FAA DOES NOT SUFFER FROM ANY INFIRMITY. A BENCH OF LUCK NOW BENCH VIDE ORDER DTD. (ITA/656/LUC/08) HAS HELD AS UNDER : WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT, IT IS NOT IN DISPUTE THAT THE ASSESSEE ALONG WITH THREE OTHER FAMILY MEMBERS, RECEIVED GIFT FROM MRS. NOREEN JAYANTI MANEK. HER I DENTITY HAS NOT BEEN DOUBTED BY THE ASSESSING OFFICER. THE SOURCE FROM WHICH MRS. NOREEN JAYANTILAL MANEK GAVE THE GIFT WAS FULLY EXPLAINED TO THE ASSESSING OFFICER. THE ONLY REASON FOR DOUBTING THE GENUINEN ESS OF THE GIFT WAS THAT THE ASSESSEE COULD NOT PRODUCE THE DONOR AND D ID NOT EXPLAIN THE OCCASION OF RECEIVING THE GIFT. IT IS WELL SETTLED THAT FOR RECEIVING THE GIFT, THE ELEMENT OF NATURAL LOVE AND AFFECTION IS ESSENT IAL AND THE GIFT SHOULD BE WITHOUT ANY CONSIDERATION. IN THE INSTANT CASE , IT IS NOT IN DISPUTE THAT THE ASSESSEE RECEIVED THE GIFT FROM MRS. NOREE N JAYANTILAL MANEK WHO HAD ALSO GIVEN GIFTS TO THREE MORE PERSONS BELO NGING TO THE SAME FAMILY TO WHICH THE ASSESSEE BELONGS AND IN ONE OF THE CASES OF RAJ KUMAR ARORA, H.U.F. FOR THE ASSESSMENT YEAR 2002-20 03 I.E. ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER, WHILE FRAMING THE ASSESSMENT UNDER SECTION 143(3) OF THE IT. ACT HAD ACCEPTED GENUINENESS OF THE GIFT. DURING THE COURSE OF HEARING, LEARNED COUNSEL ASSESSEE, STATED AT BAR THAT NO FURTHER ACT ION UNDER SECTION 263 WAS THE SAID CASE SO THE ASSESSMENT ORDER ATTAINED THE FINALITY. THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE WAS NOT CONTROVERTED BY THE LEARNED DR. THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. S. MUTHUKARUPAN [2007] 290 ITR 154 (MAD) HAS HE LD AS UNDER: ..THAT THE FINDING RECORDED BY THE TRIBUNAL THAT IT WOULD BE A TRAVESTY OF JUSTICE IF THE ASSESSEE, ONE OF THE CO- OWNERS, WAS SOLELY PICKED OUT AND AN ENHANCED INCOME WAS ATTRIB UTABLE IN HIS HANDS FOR THE SAME PROPERTY, WAS BASED ON A CORRECT APPRECIATION OF EVIDENCE AND THEREFORE, NO QUESTION OF LAW AROSE FROM THE ORDER PASSED BY IT. THE ADDITIONS TO RENT WERE NOT JUSTI FIED IN THE INSTANT CASE ALSO THE ASSESSEE RECEIVED THE GIFTS ALONG WITH THE THREE OTHER FAMILY MEMBERS FROM THE SAME PERSON . THE SOURCE OF THE ITA NO. 2796, 2798, 2800, 2802/M/09 PRAVEEN KUMAR (HUF) 8 DONOR FOR MAKING THE GIFTS WAS THE SAME AND THE TRA NSACTION WAS ALSO THROUGH THE SIMILAR BANKING CHANNEL, THEREFORE, IN VIEW OF THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASE, NO DIFFEREN T STAND COULD HAVE BEEN TAKEN IN THE CASE OF ASSESSEE WHEN THE DEPARTM ENT HAD ALREADY ACCEPTED THE GENUINENESS OF A SIMILAR GIFT VIDE ASS ESSMENT ORDER DATED 31/03/2006 PASSED UNDER SECTION 143(3) OF THE ACT I N THE CASE OF RAJ KUMAR AORA HUF BELONGING TO THE SAME GROUP, TO WHIC H THE ASSESSEE BELONGS. IN THAT VIEW OF THE MATTER, WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF LEARNED CIT(A). IN I.T.A.NO. 661/LUC/08, THE SIMILAR GROUND HA S BEEN TAKEN BY THE DEPARTMENT EXCEPT THAT THE AMOUNT OF GIFT INVOLVED IS RS.40 LACS IN PLACE OF RS.75 LACS INVOLVED IN I.T A. NO.656/LUC/08 (SUP RA), SINCE THE FACTS ARE SIMILAR AND EVEN THE RIVAL CONTENTIONS WERE ALS O SIMILAR IN THIS CASE AS WERE IN THE CASE OF DILBANGH RAJ ARORA (SUPRA) T HEREFORE OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS FOR THIS APPEAL ALSO. 7 . IN LIGHT OF THE ABOVE DISCUSSION WE UPHOLD TH E ORDER OF THE FAA DELETING THE ADDITION MADE BY THE AO U/S.68 OF THE ACT. GROUND OF APPEAL NUMBERS 1 AND 2 FOR THE AY 2002-0 3 STAND REJECTED. AS A RESULT, APPEALS FILED BY THE AO FOR ALL THE FO UR ASSESSMENT YEARS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JUNE, 2012. SD/- SD/- (D.K. AGARWAL) ( RAJENDRA) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI, DATE 27 TH JUNE, 2012 TNMM ITA NO. 2796, 2798, 2800, 2802/M/09 PRAVEEN KUMAR (HUF) 9 COPY TO: 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI.