PINKY ALOK SHRIVASTAV, MUMBAI V. ITO WD 2(2), THANE

ITA 2828/MUM/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3477 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 20-01-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 10-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAKASH OJHA
• Keywords: Unexplained cash credit; Unexplained expenditure; Gift
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI JASON P. BOAZ ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO. 2828/MUM/2013 (ASSESSMENT YEAR : 2004-05) SMT. PINKY ALOK SHRIVASTAV, 905, SHIVALIK TOWER BUILDING 1B, 90 FEET ROAD, ASHA NAGAR, THAKUR COMPLEX, KANDIVIVILI(EAST), MUMBAI 400101 PAN:ACAPS 4482N ... APPELLANT VS. THE ITO, WARD 2(2), THANE. .... RES PONDENT APPELLANT BY : NONE RESPONDENT BY : SHRI PRAKASH OJHA DATE OF HEARING : 20/01/2016 DATE OF PRONOUNCEMENT : 22/01/2016 ORDER PER JASON P. BOAZ, A.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(APPEALS)-II, THANE DATED 19/12/2012 FOR THE AS SESSMENT YEAR 2004- 05. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FO LLOWING GROUNDS:- 1. THE LEARNED CIT(A) ERRED IN LAW IN SUSTAINING A DDITION OF RS.10,00,000/- ON ACCOUNT OF GIFT RECEIVED. 2.THE LEARNED CIT(A) ERRED IN CONFIRMING ADDITION O F RS.1,00,000/- TOWARDS ESTIMATED EXPENDITURE U/S. 69C ON GIFT RECEIVED FRO M THE DONOR. 3. THE APPELLANT SUBMITS THAT THE ABOVE GROUNDS OF APPEAL ARE ALTERNATIVE, INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. 2 ITA NO. 2828/MUM/2013 (ASSESSMENT YEAR : 2004-05) 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 2. THIS APPEAL WAS FIXED FOR HEARING ON MANY OCCASI ONS, BUT NO ONE WAS EVEN PRESENT FOR ASSESSEE ON ANY OF THE SPECIFI ED DATES. EVEN ISSUE OF NOTICE BY RPAD AT THE GIVEN ADDRESS ON ATLEAST T HREE OCCASIONS HAS NOT EVOKED ANY RESPONSE FROM THE ASSESSEE. TODAY, I.E. 20/01/2016 WHEN THE CASE WAS CALLED FOR HEARING, NONE WAS PRES ENT FOR THE ASSESSEE, BUT THE LD. DEPARTMENTAL REPRESENTATIVE F OR THE REVENUE WAS PRESENT FOR REVENUE. IN THE ABOVE FACTUAL CIRC UMSTANCES, IT APPEARS FROM THE ASSESSEES CONDUCT THAT SHE IS NO T SERIOUS ABOUT PURSUING THIS APPEAL AND WE, THEREFORE, PROCEED TO DISPOSE OFF THIS APPEAL WITH THE HELP OF THE LD. DEPARTMENTAL REPRES ENTATIVE FOR THE REVENUE AND THE MATERIAL ON RECORD. 3. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE AT LENGTH IN THE MATTER, PLACING STRONGLY RELIANCE ON THE FINDINGS IN THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO PERUSED AND CAREFULLY CONSIDERED THE IMPUGNED ORDER S OF THE LD. CIT(A) AND MATERIAL ON RECORD. 4. THE FINDING OF THE LD.CIT(A) AT PARAS 4 TO 4.2 O F THE IMPUGNED ORDER IS EXTRACTED HEREUNDER:- I HAVE CAREFULLY CONSIDERED THE FACTS ON RECORD A ND SUBMISSION OF THE . . APPELLANT. I FIND THAT THE APPELLANT IS A HOUSE W IFE AND SHE HAS BEEN BUILDING CAPITAL THROUGH VARIOUS GIFTS INCLUDING -NRI GIFTS. SHE HAS SHOWN GIFTS OF RS. 9,70,047/- IN A.Y. 2002-:03 AND GIFTS OF RS. 15,00, 000/- IN A.Y. 2003-04. IT GOES WITHOUT SAYING THAT IN THE WORLD OF MATERIALIS M NOBODY GIFTS A SINGLE PENNY TO ANYBODY WITHOUT CONSIDERATION. IN THIS BAC KGROUND, IF CONTENTION OF THE APPELLANT AS WELL AS THE DOCUMENTARY EVIDENCES FURNISHED ARE EXAMINED, THEN THE CLAIM OF SO-CALLED GIFTS REVEALS A CONCOC TED STORY. ON PERUSAL OF THE DETAILS FURNISHED IN THE CASE OF SHRI SANDEEP DOSH I, DONOR, I FIND THAT THE DECLARATION OF GIFT HAS BEEN MADE ON STAMP PAPER O N 09/01/2004. HOWEVER, 3 ITA NO. 2828/MUM/2013 (ASSESSMENT YEAR : 2004-05) THE DATE OF GIFT HAS BEEN STATED TO BE 12/01/2004 I N THE DECLARATION. IN CONTRAST, THE GIFT IS STATED TO BE ON 29/12/2003 IN THE WRITTEN SUBMISSION REPRODUCED ABOVE. IN THE DECLARATION OF GIFT, NO R ELATION WITH THE DONEE HAS BEEN STATED BY THE DONOR. FURTHER, THERE IS NO OCCA SION FOR GIVING THE GIFT OF RS. 5,00,000/- TO THE APPELLANT. THE DONOR AT PRESE NT IS NRE, BUT HE ORIGINALLY BELONGS TO DUNGARPUR, RAJASTHAN. ON EXAMINATION OF .BANK ACCOUNT OF THE DONOR, IT IS NOTICED THAT THERE ARE ONLY FEW ENTR IES IN THE BANK ACCOUNT. THE CASH HAS BEEN DEPOSITED ON 08/12/2003, 09/12/2003 A ND THEN THERE IS A TRANSFER ENTRY LEAVING A NOMINAL BALANCE. IMMEDIATE LY BEFORE GIVING A GIFT TO THE APPELLANT, THE DONOR HAS DEPOSITED A CHEQUE OF KUWAITI DINAR OF 3339 ON 24/12/2003. ON CREDIT OF THIS CHEQUE, 3,000 KUWAIT DINARS HAVE BEEN WITHDRAWN ON 29/12/2003 CLAIMED TO HAVE BEEN UTILIZ ED FOR GIVING A GIFT GIFT TO THE APPELLANT. THEREAFTER, THE BALANCE IN THE BA NK ACCOUNT REMAINED NOMINAL AMOUNT. THE SOURCE OF CASH DEPOSITS AS WELL AS CREDITS IMMEDIATELY BEFORE THE GIFT, HAVE NOT BEEN EXPLAINED BY THE APP ELLANT. MOREOVER, NO OTHER EVIDENCE TO ESTABLISH THE EARNINGS OF THE DO NOR AND HIS FINANCIAL WELLBEING, HAVE BEEN FURNISHED EITHER DURING THE CO URSE OF ASSESSMENT' PROCEEDINGS OR DURING THE APPELLATE PROCEEDINGS. 4.1 SIMILARLY, ON EXAMINATION OF THE DETAILS FURNI SHED IN RESPECT OF OTHER DONOR, SHRI. MAHESHKURNAR N.PATEL, IT IS NOTICED TH AT THE STAMP PAPER HAS BEEN PURCHASED ON 06/02/2004 AND THE GIFT IS STATE D TO BE GIVEN ON 16/02/2004. IN THE DECLARATION OF GIFT, NEITHER AN Y OCCASION NOR ANY RELATION WITH THE DONEE HAS BEEN STATED. THE GIFT HAS BEEN M ADE THROUGH A DEMAND DRAFT PURCHASED FROM NRE . SAVING BANK A/C. WITH TH E BANK OF BARODA. ON PERUSAL OF THE BANK ACCOUNT, IT IS NOTICED THAT FRO M 01/01/2002 TO 10/01/2004, THERE WAS NO CREDIT EXCEPT FOR INTEREST INCOME OF ABOUT RS.4,500/- PER ANNUM. HOWEVER, IMMEDIATELY BEFORE THE GIFT OF ABOUT RS. 4,500/- PER ANNUM. HOWEVER, IMMEDIATELY BEFORE THE GIFT OF RS.5,00,000/- ON 16/02/2004, THE DONOR HAS DEPOSITED TWO AMOUNTS OF RS.1,78,379/- AND RS.2,67,279/-. THE SOURCES OF THESE TWO CREDIT ENT RIES IN THE BANK ACCOUNT IMMEDIATELY BEFORE THE GIFT OF RS.5,00,000/- TO THE APPELLANT HAVE NEITHER BEEN EXPLAINED BEFORE THE A.O NOR BEFORE ME. THE A PPELLANT HAS NOT FURNISHED ANY OTHER EVIDENCE TO ESTABLISH THE SOUR CES OF INCOME AND FINANCIAL WELL BEING OF THE DONOR. 4.2 ALTHOUGH BOTH THE DONORS HAVE STATED IN THE DEC LARATION OF GIFTS THAT THE GIFT HAS BEEN GIVEN OUT OF NATURAL LOVE AND AFF ECTION, BUT THEY HAVE NOT MENTIONED ANYTHING AS TO HOW THE NATURAL LOVE AND AFFECTION HAS BEEN DEVELOPED WITH THE DONE PARTICULARLY WHEN THEY ARE NOT RELATED ONE. NOTHING HAS BEEN MENTIONED AS TO WHETHER THE DONORS AND DON E HAVE EVER MET EACH OTHER. AS ALREADY MENTIONED, THE FREQUENT RECEIPT OF THE GIFTS FROM UNRELATED PERSON OF HUGE MONEY BY THE APPELLANT IS AGAINST AL L HUMAN PROBABILITIES. SINCE GIFTS ARE NOT ON ANY OCCASION AND THERE IS NO PROOF ABOUT THE NATURAL LOVE AND AFFECTION WITH THE DONORS, THE LEGAL CONST ITUENTS OF VALID GIFTS ARE NOT ALSO PROVED IN THE CASE OF APPELLANT. THE APP ELLANT, DURING THE COURSE OF EXAMINATION U/S.131 COULD NOT GIVEN ADDRESSES, TELE PHONE NO., BUSINESS 4 ITA NO. 2828/MUM/2013 (ASSESSMENT YEAR : 2004-05) DETAILS, DETAILS OF MEETINGS OR TALKS ON TELEPHONE ETC. WITH THE DONORS. SINCE THE DONORS AND DONE HAVE NEVER MET, THE THEORY OF RAKHI BROTHERS HAD BEEN PROVED TO BE FALSE. ALL THE EVIDENCES PRODUCE D BY THE APPELLANT ONLY INDICATE THAT THE SAME HAVE BEEN CREATED BY THE AP PELLANT ONLY TO GIVE A COLOUR OF GIFTS TO THE UNACCOUNTED MONEY. THE FACT S AND CIRCUMSTANCES ALSO INDICATE THAT THE APPELLANT MUST HAVE BEEN GIVEN TH E AMOUNTS IN CASH TO THE DONORS FOR THEIR EXPENSES WHENEVER THEY VISIT INDIA IN LIEU OF SO-CALLED GIFTS. THUS, IN VIEW OF TOTALITY OF THE FACTS AND CIRCUMST ANCES OF THE CASE AS ALSO THE DISCUSSION MADE ABOVE, I AM OF THE CONSIDERED VIEW THAT THE SO-CALLED GIFTS ARE NOT GENUINE GIFTS AND THE APPELLANT HAS GROSSLY FAILED TO ESTABLISH THE RELATION OF RAKHI BROTHERS AND NATURAL LOVE & AF FECTION AND FINANCIAL CAPACITY OF THE DONORS AND HENCE, I HOLD THAT THE A .O HAS RIGHTLY TREATED THE FITS OF RS.10,00,000/- AS UNEXPLAINED CASH CREDITS U/S. 68. THE ADDITION SO MADE IS ACCORDINGLY CONFIRMED. SINCE THE APPELLANT HAS ACQUIRED THE GIFTS IN ORDER TO GIVE COLOUR GENUINENESS TO HER UNACCOUNTED MONEY, SHE MUST HAVE ALSO INCURRED SOME AMOUNT OF EXPENSES FOR ARRANGING DOCUMENTARY EVIDENCE AS ALSO THE GIFTS. THUS, THE EXPENDITURE ESTIMATED BY A.O AT RS.1,10,000/- ON THIS ACCOUNT AND ADDED U/S. 69C IS ALSO UPHELD. 5. WE FIND FROM DETAILS ON RECORD AND THE LD. DEPA RTMENTAL REPRESENTATIVES SUBMISSIONS THAT THE ASSESSEE HAS NOT BEEN ABLE TO ADVANCE ANY EVIDENCE TO CONTROVERT THE ADVERSE FINDINGS OF THE LD. CIT(A)(SUPRA) IN RESPECT OF THE ASSESSEES CLAIM OF RECEIPT OF GIFTS OF RS.10 LAKHS, HOLDING THEM TO BE UNEXPLA INED CASH CREDIT AND ALSO THE UNEXPLAINED EXPENDITURE OF RS.1 LAKH I NCURRED IN THIS REGARD. WE, CONSEQUENTLY DISMISS THE GROUNDS OF S. NO.1 TO 4 RAISED BY THE ASSESSEE IN THIS APPEAL. 6. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESS MENT YEAR 2004-05 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/2016 SD/- SD/- (SANDEEP GOSAIN) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI, DATED 22/01/2016 VM , SR. PS 5 ITA NO. 2828/MUM/2013 (ASSESSMENT YEAR : 2004-05) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI