Sh. Sunil Kumar Gupta, Ghaziabad V. ITO, Ghaziabad

ITA 3076/DEL/2013

• Counselvise Citation: 307620114 RSA 2013
• Duration Of Justice: 1 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 11-06-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 16-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMAL GARG
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI S. V. MEHROTRA, ACCOUNTANT MEM BER I.T.A .NO. 3076 /DEL/2013(AY-2004- 05) SUNIL KUMAR GUPTA S/O SH. DAYA RAM GUPTA KRISHNA GANJ, PILKHUWA GHAZIABAD AFZPG5605B (APPELLANT) VS ITO WARD 2 GHAZIABAD (RESPONDENT) APPELLANT BY SHRI SANJAY MALIK, CA. RESPONDENT BY SH. AMAL GARG, SR. D.R. ORDER THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF LD. CIT(A) , MUZAFFARNAGAR DATED 14 TH MARCH, 2013 FOR A. Y 2004-05. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER PASSED THE PRESENT ASSESSMENT ORDER IN CONSEQUENCE TO THE DIRECTION OF TRIBUNAL VIDE ORDER DATED 30 TH NOVEMBER, 2007 FOR DECIDING THE ISSUE REGARDING GIF T OF RS. 1,50,000/- RECEIVED BY ASSESSEE, AFTER TAKING INTO ACCOUNT THE BALANCE SHE ET AND CASH FLOW STATEMENT OF SMT. MEENU GUPTA TRIBUNAL HAD ALSO RESTORED THE ISSUE RE GARDING ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS AFTER TAKING INTO CONSIDE RATION THE BALANCE SHEET AND CASH FLOW STATEMENT OF SMT. MEENU GUPTA. AS REGARD THE FIRST ISSUE OF GIFT OF RS. 1,50,000/-, THE CLAIM OF THE ASSESSEE WAS THAT IS W IFE SMT. MEENU GUPTA HAD ENCASHED THREE FDRS / VCCS / MONEY MULTIPLIER CERTI FICATES DURING THE YEAR. OUT OF THESE THREE FDRS / CERTIFICATES, IT WAS CLAIMED THA T MATURITY PROCEEDS AMOUNTING TO RS. 52,448/- OF ONE FDR NO. 15119 OF SYBDICATE BANK , PILKHUWA WERE GOT DEPOSITED IN THE SAVINGS BANK ACCOUNT NO. 25847 ON 4 TH NOVEMBER, 2003 ITA NO.3076//DEL/13 2 MAINTAINED WITH THE SAME BANK AND THAT THE OTHER T WO INSTRUMENTS WERE GOT ENCASHED DURING THE YEAR UNDER CONSIDERATION. THE A SSESSEE HAD ALSO FURNISHED DETAILED FUND FLOW STATEMENT OF HIS WIFE ALONG WITH COPIES OF HER BALANCE SHEET FOR THE YEARS ENDING 31 ST MARCH, 2002, 31 ST MARCH, 2003 AND 31 ST MARCH, 2004 AS ALSO COPIES OF THE RELEVANT THREE INSTRUMENTS. THE ASSES SING OFFICER HAS REPRODUCED THE FUND FLOW STATEMENT FILED BY ASSESSEE AT PAGE 2 OF HIS ORDER. 3. THUS, ACCORDING TO THE ASSESSEE UP TO THE DA TE OF ALLEGED GIFT OF RS. 1,50,000/- ON 25 TH MARCH, 2004 TO HER HUSBAND SHE HAD WITH HER REALIZ ATIONS OF LOAN AND PROCEEDS OF TWO INSTRUMENTS APART FROM SAVINGS OUT OF CURRENT YEARS INCOME AND OPENING CASH BALANCE. 4. THE ASSESSING OFFICER HAS OBSERVED AT PAGE 2 OF HIS ORDER THAT FROM ENQUIRIES CONDUCTED FROM THE CENTRAL BANK OF INDIA IF TRANSPI RED THAT THE MONEY MULTIPLIER CERTIFICATES IN QUESTION WERE NOT ENCASHED BY HER D URING THE YEAR AS CLAIMED. INSTEAD IT WAS GOT RENEWED ON 31 ST MARCH, 2003 FOR 30 MONTHS. THE BANK, FURTHER, INFO RMED THAT THE RENEWED CERTIFICATE WAS ENCASHED ON 9 TH FEBRUARY, 2007 BY CREDITING THE PROCEEDS TO HER SAVINGS BANK ACCOUNT NO. 14449 WITH THAT BANK. HE, THEREFORE, OBSERVED THAT THE FUNDS THAT WOULD HAVE BEEN AVAILA BLE WITH THE LADY TO GIFT COMES TO RS. 83,752/- OR RS. 83,800/- IN ROUND FIGURES AS UN DER :- OPENING CASH BALANCE AS SHOWN I.E. CLOSING BALANCE SHOWN IN THE STATEMENT FOR THE PRECEDING YEAR. (THOUGH THE LADY HAD CLAIMED THAT SHE HAD RS. 50,000/- APPROXIMATELY AS CASH IN HAND AND IN BANK COPY OF HER BALANCE SHEET FOR THE YEAR ENDED ON 31.3.200 3 DOES NOT REVEAL ANY BANK ACCOUNT AND IT SHOWS RS. 49,152/- AS CASH IN HAND) RS. 49, 152/- ITA NO.3076//DEL/13 3 REALIZATION OF LOAN LOAN M/S. DAYARAM SUNIL KUMAR RS. 12,000/- (THE OTHER REALIZATION OF LOAN OF RS. 5,000/- 25.11 .2003 IS OF THE LOAN ADVANCED ON 3.04.2003 AND AS PER THE BALANCE SHEET OF THE ASSESSEE FOR THE PRECEDING YEAR THE LIABILITY IN THE NAME OF THE LADY WAS ONLY RS. 12,000/-. FURTHER SINCE THE ENTIRE OPENING BALA NCE AND INCOME/SURPLUS OF THE YEAR IS BEING CONSIDERED HERE INBELOW AND IF THE ADVANCE AND REALIZATION OF LOAN OF RS. 5,000/- IS C ONSIDERED IT WILL NOT AFFECT THE AVAILABILITY OF FUNDS) PROCEEDS OF VCC GIVEN BY SYNDICATE BANK THROUGH PAY ORDER DATED 17.3.2004 AFTER DEDUCTING TAX AT SOURCE RS.53,374/- RS. 1,14,526/- NOW THE LADY HAD SHOWN PROFIT FROM BUSINE SS AT RS. 62,504/- FOR THE WHOLE YEAR OUT OF WHICH SHE HAD DRAWN RS. 32,00 0/- FOR CONTRIBUTION TOWARDS HOUSEHOLD EXPENSES, ETC. HENCE THE NET SURPLUS OF THE ENTIRE YEAR AMOUNTED TO RS. 30,504/-. THUS T HE TOTAL AMOUNT AVAILABLE WORKED OUT TO RS. 1,45,030/- ONLY THAT TO O WHEN THE ENTIRE SURPLUS HAS BEEN CONSIDERED AS AVAILABLE ON THE DAT E OF GIFT WHICH WAS GIVEN AT THE FAG END OF THE ACCOUNTING PERIOD I.E. 25.3.2004. OUT OF THIS CASH AVAILABLE SHE HAD PURCHASED NSCS FOR RS. 45,000/- AS SHOWN IN THE FUND FLOW STATEMENT. DEDUCTING THIS THE BALA NCE AMOUNT AVAILABLE WITH HER AMOUNTED TO RS. 1,00,030/- OUT O F WHICH THE LADY HAD SHOWN CASH IN HAND ON 31.3.2004 AT RS. 16,278/- . SINCE DUE BENEFIT FOR THE OPENING CASH IN HAND HAS BEEN GIVEN ABOVE NO FURTHER MARGIN FOR THE OPENING CASH BALANCE IS ADMISSIBLE. THUS, DEDUCTING THIS CASH IN HAND SHOWN AT RS. 16,278/- THE MAXIMUM AMOUNT THAT THE LADY COULD HAVE GIFTED TO HER HUSBAND WAS ONLY RS. 83,800/-. 5. THE ASSESSING OFFICER DID NOT ACCEPT THE A SSESSEES CONTENTION THAT ASSESSEES WIFE HAD TAKEN RS. 66,000/- FROM ONE OF HER RELATIV ES ON 15 TH MARCH, 2003 AND IN LIEU THEREOF SHE HAD GIVEN THE FDR TO HER I.E. THE RELAT IVE AND THEN GAVE GIFT OF RS. 1,50,000/- TO THE ASSESSEE. THE ASSESSING OFFICER O BSERVED THAT THE SUM OF RS. 66,200/- BEING THE DIFFERENCE BETWEEN THE AMOUNT GI VE AND THE MAXIMUM AMOUNT AVAILABLE WITH THE ASSESSEE WAS THE ASSESSEES INC OME FROM UNDISCLOSED SOURCES. ITA NO.3076//DEL/13 4 AFTER CONSIDERING THE ASSESSEES SUBMISSIONS LD. CI T(A) DISMISSED THE ASSESSEES APPEAL. 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE RECORD, I FIND THAT ASSESSING OFFICER, AS NOTED EARLIER, HAS ELABORATELY CONSIDERED THE MAXIMUM AVAILABILITY OF SUM OF RS. 83,800/- WITH TH E ASSESSEES WIFE WHICH SHE COULD HAVE GIFTED TO HER HUSBAND AND, THEREFORE, TH ERE IS NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(APPEALS). THE ASSESSEES CONTE NTION THAT HIS WIFE HAD TAKEN RS. 66,000/- FROM HER RELATIVES IN LIEU OF FDR WAS ONLY AND AFTER THOUGHT. IN THIS REGARD THE OBSERVATIONS OF LD. CIT(A) ARE WORTH MENTIONING :- 7. THE LD. CIT(APPEALS) HAS OBSERVED AS UNDER : - THE FACTS OF THE CASE AS WELL AS SUBMISSIONS MADE BY THE APPELLANT HAVE BEEN CAREFULLY CONSIDERED. IT IS OBS ERVED THAT THE APPELLANT IN HIS WRITTEN SUBMISSIONS ADMITTED THAT THERE WAS MISTAKE IN ORIGINAL CASH FLOW STATEMENT AS THE AMOUNT OF RS . 66,847/- BEING FDR NOT ENCASHED BUT RENEWED. HOWEVER, IT IS CLAIME D THAT AS PER ANOTHER CASH FLOW STATEMENT, THE DONOR (SMT. MEENU GUPTA) WAS HAVING SUFFICIENT FUNDS TO MAKE GIFT AT RS. 1,50,00 0/- IN CASH TO HER HUSBAND. THE APPELLANT CANNOT BE PERMITTED TO MAKE STORY AF TER STORY REGARDING AVAILABILITY OF CASH WITH THE DONOR (WIFE ). BEFORE THE ASSESSING OFFICER IT WAS CLAIMED THA THE APPELLANT S WIFE TOOK RS. 66,000/- FROM RELATIVE IN LIEU OF FDR, NOW IN APPEA L FUTILE BID IS MADE TO SHOW THE AVAILABILITY OF CASH WITH THE DONOR ON THE BASIS OF REVISED CASH FLOW STATEMENT FROM 11.11.2003 ONWARDS. SUCH PIECEMEAL EXPLANATION OF THE APPELLANT IS NOT ACCEPTABLE AT ALL. ADMITTEDLY THE APPELLANT HAS UTTERLY FAILED TO ESTABLISH THAT HIS WIFE (DONOR) WAS HAVING RS. 1,50,000/- CASH TO MAKE GIFT OF THE APPELLANT. THUS, ONUS WAS SQUARELY ON THE APPELLANT TO ESTABLISH THE SAME BUT THE SAME HAS NOT BEEN DISCHARGED. AS SUCH, THE AMOUNT OF RS. 66,200/- REMAINED UNEXPLAINED IN THE HANDS OF T HE APPELLANT AND THE AO WAS PERFECTLY JUSTIFIED TO MAKE ADDITION OF RS. 66,200/-. THE ITA NO.3076//DEL/13 5 SAME IS HEREBY CONFIRMED. GROUNDS OF APPEAL NOS. 1 AND 2 ARE DISMISSED. 8. IN THE RESULT THE ASSESSEES APPEAL IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE, 2014. SD/- (S.V.MEHROTRA) ACCOUNTANT MEMBER DATED 30/06/2014 B.RUKHAIYAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AR, ITAT NEW DELHI