SUBHASH MOHANDAS GOGIA, NAVI MUMBAI V. ITO 22(3)(4), NAVI MUMBAI

ITA 3166/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3795 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 04-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Reasonable cause; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER / I .T A NO. 3166/MUM/2013 ( / ASSESSMENT YEAR : 2008 - 09 SUBHASH MOHAN DAS GOGIA, F - 9/0:2, NOOPUR CHS, SECTOR 22, KOPERKHAIRANE, NAVI MUMBAI - 400 709 / VS. THE ITO 22(3)(4), VASHI NAVI MUMBAI ./ ./ PAN/GIR NO. ACHPG 1894P ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI PRAKASH PANDIT / RESPONDENT BY: SHRI SATYAJIT MANDAL / DATE OF HEARING : 08 . 0 2 . 201 6 / DATE OF PRONOUNCEMENT : 24 . 0 2 .201 6 / O R D E R PER C.N. PRASAD, JM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 33 , MUMBAI DATED 15.2.2013 PERTAINING TO ASSESSMENT YEAR 200 8 - 0 9 . 2. THERE IS A DELAY OF 7 DAYS. THE ASSESSEE HAS ALSO FILED AFFIDAVIT STATING THE REASONS AS TO WHY DELAY OF 7 DAYS OCCURRED IN FILING THE APPEAL. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO SERIOUS OBJECTION FOR CONDONATION OF DELAY OF 7 DAYS. HAVING GONE TH ROUGH THE PETITION AND AFFIDAVIT, WE FIND THAT THERE IS A REASONABLE CAUSE NOT ITA NO. 316/M/2013 2 FILING THE APPEAL IN TIME THEREFORE, SHORT DELAY OF 7 DAYS IS CONDONED AND APPEAL IS ADMITTED. 3 . THE ONLY ISSUE IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 3,00,000/ - AND RS. 9, 0 0,000/ - MADE BY THE AO AS INCOME FROM UNDISCLOSED SOURCE BEING THE GIFT RECEIVED FROM THE ASSESSEES SISTER AND BROTHER IN LAW RESPECTIVELY. 4 . THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT NO TICED THAT IN THE CAPITAL ACCOUNT THE ASSESSEE HAS SHOWN TO HAVE RECEIVED GIFT FROM FATHER, SISTER AND BROTHER IN - LAW AMOUNTING TO RS. 25,000/ - , RS. 3,00,000/ - AND RS. 9,00,00 0 / - RESPECTIVELY. THE ASSESSEE ON 19.11.2010 WAS REQUESTED TO FURNISH THE SUPPO RTING PROOF IN RESPECT OF THESE GIFTS. HOWEVER, THE ASSESSEE COULD NOT FILE THE INFORMATION BEFORE THE AO BEFORE COMPLETION OF ASSESSMENT ON 10.12.2010. 5 . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND THE CIT(A) ACCEPTED THE GIFT GIVEN BY T HE FATHER. HOWEVER, HE CONFIRMED THE ADDITION IN RESPECT OF OTHER TWO GIFTS GIVEN BY ASSESSEES SISTER AND BROTHER IN - LAW HOLDING THAT THE ASSESSEE HAS NOT PROVED THE CREDIT WORTHINESS OF THE DONORS. HE ALSO DOUBTED THE SOURCE OF GIFTS FROM THE DONORS. 6 . THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE RECEIVED GIFT OF RS. 3,00,000/ - FROM HIS SISTER WHO IS RESIDING IN AUSTRALIA AND RS. 9,00,000/ - WAS RECEIVED FROM BROTHER IN LAW WHO IS RESIDING IN UNITED STATE OF AMERICA. THE LD. COUNS EL FOR THE ASSESSEE SUBMITS THAT DECLARATION CONFIRMING THE GIFT GIVEN BY ASSESSEES BROTHER IN LAW WAS FURNISHED BEFORE THE LD. CIT(A) AND THIS DECLARATION WAS NOTARIZED IN CALIFORNIA. IN THE DECLARATION, IT IS ITA NO. 316/M/2013 3 CLEARLY MENTIONED THAT RS. 9,00,000/ - WAS G IVEN BY WAY OF CHEQUE NO. 58187 DRAWN ON HDFC BANK, VASHI AND DONOR IS A SOFTWARE BUSINESSMAN IN USA AND HIS ANNUAL INCOME IS 1,20,000 US DOLLAR S . 7. SIMILARLY DECLARATION CONFIRMING GIFT BY ASSESSEES SISTER WHO IS RESIDING IN AUSTRALIA IS ALSO FURNISHED BEFORE THE LD. CIT(A) AND IT IS CLEARLY MENTIONED IN THE DECLARATION THAT AN AMOUNT OF RS. 3,00,000/ - BY CHEQUE NO. 58187 5 DRAWN ON CITY BANK PAYABLE AT MUMBAI WAS GIVEN TO THE ASSESSEE. IT IS ALSO MENTIONED IN THE DECLARATION THAT SINCE LAST 1 8 YEARS SHE IS SETTLED IN SYDNEY, AUSTRALIA AND HER ANNUAL INCOME IS ABOUT 35,000 AUSTRALIAN DOLLAR S . THE LD. COUNSEL SUBMITS THAT PASSPORT AND DRIVING LICEN CE OF BOTH THE DONORS ARE FURNISHED BEFORE THE LD. CIT(A). THEREFORE, THE COUNSEL SUBMITS THAT TH E GENUINENESS OF THE GIFT CANNOT BE DOUBTED. THE SOURCE OF GIFT IS ALSO CANNOT BE DOUBTED AS THE GIFTS ARE THROUGH BANKING CHANNELS THEREFORE THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THERE IS NO JUSTIFICATION IN CONFIRMING THE ADDITION MADE BY THE A O AS INCOME FROM UNDISCLOSED SOURCE. 8 . THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTS THE ORDERS OF THE LOWER AUTHORITIES. 9 . HEARD BOTH SIDES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PLACED BEFORE US. THE AO MADE THE ADDITION AS THE ASSESSEE COULD NOT PRODUCE REQUISITE DETAILS IN RESPECT OF THE GIFTS. BEFORE THE LD. CIT(A), THE ASSESSEE FURNISHED DECLARATION FROM THE DONOR S , COPIES OF PASSPORTS AND DRIVING LICENCE OF BROTHER IN LAW TO PROVE THE GENUINENESS OF THE GIFT, THE CREDIT WORTHINESS OF THE DONORS. HOWEVER, THE LD. CIT(A) THOUGH ACCEPTED THE IDENTITY OF THE DONORS, DOUBTED THE CREDITED WORTHINESS OF THE DONORS. ON GOING THROUGH THE ITA NO. 316/M/2013 4 DECLARATION FURNISHED BY BOTH THE DONORS, WHO ARE RESIDING IN AUSTRALIA AND U.S.A. AND THE CONTENTS THEREON, WE ARE CONVINCED THAT THE DONORS HAVE SUFFICIENT EARNINGS FOR LENDING GIFTS TO THE ASSESSEE. THE GIFTS HAVE COME THROUGH BANKING CHANNELS, THEREFORE THEY CANNOT BE DOUBTED. IN THE CIRCUMSTANCES, WE HOLD THAT THE GIFTS ARE GENUINE, THE S OURCES ARE PROVED HENCE WE DIRECT THE AO TO DELETE THE ADDITION OF RS. 12,00,000/ - MADE AS UNDISCLOSED INCOME FROM THESE TWO DONORS . 1 0 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH FEBRUARY , 201 6 . SD/ - SD/ - ( RAJESH KUMAR ) ( C.N. PRASAD ) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI ; DATED : 24 TH FEBRUARY , 201 6 . . ./ RJ , SR. PS / 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 ITA NO. 316/M/2013 5 DATE INITIALS 1. DRAFT DICTATED ON: 10 . 0 2 .201 6 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 19 . 0 2 . 201 6 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: