ITO, WARD- 49(4), NEW DELHI V. DEVKI NANDAN GUPTA, GURGAON

ITA 3255/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2886 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DINESH AGARWAL
• Keywords: Gift
• Section: 69C; 22; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 3255/DEL/2018 : ASSTT. YEAR : 2009-10 INCOME TAX OFFICER, WARD-49(4), NEW DELHI-110002 VS DEVKI NANDAN GUPTA, BLOCK-X, HOUSE NO. 49, DLF CITY, PHASE-2, DLF CYBER CITY, GURGAON-122002 (APPELLANT) (RESPONDENT) PAN NO. A EXPG9487N CO NO. 23/DEL/2021 : ASSTT. YEAR : 2009-10 DEVKI NANDAN GUPTA, BLOCK-X, HOUSE NO. 49, DLF CITY, PHASE-2, DLF CYBER CITY, GURGAON-122002 VS INCOME TAX OFFICER, WARD-49(4), NEW DELHI-110002 (APPELLANT) (RESPONDENT) PAN NO. AEXPG9487N ASSESSEE BY : SH. DINESH AGARWAL, ADV. REVENUE BY : SH. MAHESH THAKUR, SR. DR DATE OF HEAR ING: 05 . 08 .20 2 1 DATE OF PRONOUNCEMENT: 22 .10 .20 2 1 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE A ND THE CROSS OBJECTION BY THE ASSESSEE AGAINST THE ORDER O F LD. CIT(A)- 17, NEW DELHI DATED 26.02.2018. 2. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. ITA NO. 3255/DEL/2018 CO NO. 23/DEL/2021 DEVKI NANDAN GUPTA 2 3. WE HAVE GONE THROUGH THE ORDER OF THE LD. CIT(A) WHEREIN THE ENTIRE HISTORY OF THE CASE, FACTS AND THE REASO NS OF ADJUDICATION HAVE BEEN LUCIDLY EXPLAINED. FOR THE S AKE OF READY REFERENCE, THE ENTIRE ORDER IS REPRODUCED HEREWITH: THE ASSESSEE'S DAUGHTER MS. MEGHA GUPTA WAS MARRIE D TO ONE SAURABH BANSAL SON OF MR. SUDHIR BANSAL, A WELL-TO- DO FAMILY IN JAIPUR ON 16.02.2009. THE MARRIAGE WAS A LOVE MARRI AGE. THE TEP WAS FILED BY THE COMPLAINANT (SH. SUDHIR BANSAL ) ON THE BASIS OF THE DATA REFLECTED IN THE FIR THAT THE ASS ESSEE HAD SPENT ABOUT RS. 1.5 CRORE IN FEBRUARY 2009 AS ADMIT TED IN THE FIR FILED BEFORE THE SHO, POLICE STATION, SECTOR-51 GURGAON. ON THE BASIS OF THE INFORMATION, THE INCOME TAX RETURN OF THE ASSESSEE FOR THE A.Y. 2009-10, WHICH WAS DOWNLOADED FROM THE AST SYSTEM, REFLECT THAT DURING THE YEAR UNDER CONS IDERATION, ASSESSEE HAS OFFERED RS. 2,60,000/- AS TAXABLE INCO ME AFTER CLAIMING DEDUCTION UNDER CHAPTER VI-A OF RS. 1,15,0 00/-. 4.3 THE AO HELD THAT THE ASSESSEE HAS FAILED TO SU BSTANTIATE THE FACT THAT NO AMOUNT HAS BEEN SPENT ON ENGAGEMEN T AND MARRIAGE OF THE DAUGHTER OF THE ASSESSEE WHICH WAS SOLEMNIZED AT TWO DIFFERENT LAVISH HOTEL(S) OF THE COUNTRY AND ACCORDINGLY, MADE AN ADDITION OF RS. 2,10,00,000/- (RS. 1.5 CROR E ON MARRIAGE + RS. 10 LAKHS ON ENGAGEMENT + RS. 50 LAKH S FOR JEWELLERY). 4.4 HENCE THE ASSESSEE IS IN APPEAL. 5. DETERMINATION: 5.1 GROUND NOS. 1 TO 7 ARE INTER-RELATED. VIDE THES E GROUNDS, THE APPELLANT HAS CHALLENGED THE INITIATION OF PROC EEDINGS UNDER ITA NO. 3255/DEL/2018 CO NO. 23/DEL/2021 DEVKI NANDAN GUPTA 3 SECTION 147 OF THE ACT AND CHALLENGED THE ACTION OF THE AO IN MAKING AN ADDITION OF RS. 2.10 CR. BASED ON FIR. FINDINGS: 5.2 THE ISSUE INVOLVED IN THIS CASE IS THAT WHETHER THE AO IS CORRECT IN MAKING AN ADDITION BASED ON THE CONTENTS OF COMPLAINT FILED BY THE ASSESSEE WHICH WAS RETRACTED AT A LATER STAGE AND THE POLICE ENQUIRY ALSO FOUND IT TO BE FA LSE COMPLAINT OR NOT?. 5.3 AT THE OUTSET, THE FACTS OF THE CASE ARE THAT A POLICE COMPLAINT/FIR. WAS FILED BY THE ASSESSEE BEFORE THE SHO, POLICE STATION, SECTOR-51 GURGAON ALLEGING THAT HE HAD SPE NT ABOUT RS.1.5 CRORE ON MARRIAGE OF HIS DAUGHTER (MEGHA), W HICH TOOK PLACE AT HOTEL RAM BAGH PALACE, JAIPUR, RS. 10 LAKH S ON THE OCCASION OF ENGAGEMENT OF HER DAUGHTER, WHICH WAS H ELD AT HOTEL LE- MERIDIAN, JAIPUR AND RS. 50 LAKHS FOR JEW ELLERY. THE MARRIAGE OF THE DAUGHTER OF THE ASSESSEE WAS SOLEMN IZED ON 16.02.2009 AND THE ENGAGEMENT CEREMONY WAS ON 11.06 .2008. BASED ON THE CONTENTS OF THE COMPLAINT, A TEP WAS F ILED BY THE SH. SUDHIR BANSAL, THE FATHER OF THE BRIDE GROOM, I N THE INCOME TAX OFFICE ALONGWITH COPY OF THE POLICE COMPLAINT. 5.4 THE AO ASKED THE ASSESSEE TO EXPLAIN THE SOURC E OF THE FUNDS FOR MEETING EXPENSES AS DETAILED OUT IN THE P OLICE COMPLAINT. REGARDING THE EXPENSES INCURRED ON THE O CCASION OF MARRIAGE OF HER DAUGHTER FOR WHICH FIR HAS BEEN FIL ED BY THE ASSESSEE, IT WAS SUBMITTED BY THE ASSESSEE DURING T HE ASSESSMENT PROCEEDINGS THAT NO SUCH EXPENSES WERE I NCURRED BY THE ASSESSEE. THE ASSESSEE CLARIFIED THAT THE WHOLE EPISODE HAD ITA NO. 3255/DEL/2018 CO NO. 23/DEL/2021 DEVKI NANDAN GUPTA 4 ARISEN ON ACCOUNT OF MARITAL DISCARD BETWEEN THE DA UGHTER AND HER HUSBAND, WHEREIN COMPLAINTS AND COUNTER COMPLAI NTS WERE FILED AGAINST EACH OTHER AND THE SAME WERE WITHDRAW N AFTER THE MATTER GOT RESOLVED BETWEEN THE PARTIES. 5.5 THE ASSESSEE ALSO POINTED OUT THAT THE AO OUGH T TO HAVE MADE ENQUIRIES ON HIS OWN FROM THE CONCERNED HOTELS TO ASCERTAIN THE CORRECT SET OF FACTS. THE ASSESSEE MA DE REFERENCE TO THE SIMILAR QUESTION ASKED BY THE STO. WARD 2(4) , GURGAON IN THE CASE OF MRS. MANJU GUPTA, WIFE OF THE ASSESS EE AND THE RETURNED INCOME WAS ACCEPTED BASED ON THE INFORMATI ON GATHERED FROM THE HOTEL. 5.6 THE ASSESSEE HAD FILED AFFIDAVIT ON 28/12/2016 WHEREIN HE DENIED THE TRANSACTIONS HELD AT THE TIME OF MARRIAG E & ENGAGEMENT OF DAUGHTER AS DEPICTED IN THE FIR. FURT HER, AN AFFIDAVIT OF MR. SUDHIR BANSAL (WHO HAD FILED THE T EP) WAS ALSO FILED IN WHICH THE TRANSACTIONS MENTIONED IN THE TE P WERE DENIED. 5.7 HOWEVER, THE AO DISREGARDED THE SUBMISSION OF THE ASSESSEE. THE AO OBSERVED THAT A MUTUAL AGREEMENT H AS BEEN ARRIVED BETWEEN THE ASSESSEE AND MR. SUDHIR BANSAL AND THE COMPLAINT FILED BEFORE THE POLICE HAS BEEN WITHDRAW N BUT THE SAME DOES NOT HAVE ANY IMPACT ON THE FINANCIALS PRO VIDED BY THE ASSESSEE IN HIS COMPLAINT BEFORE THE POLICE AND THE SAME WERE SUBMITTED BY MR. SUDHIR BANSAL IN HIS TEP. FUR THER, THE AO OBSERVED THAT THE ASSESSEE HAD CLAIMED THAT HE HAD NOT SPENT ANY AMOUNT ON THE OCCASION OF HER DAUGHTER, WHICH I S BEYOND ANY IMAGINATION AND HARD TO BELIEVE. ITA NO. 3255/DEL/2018 CO NO. 23/DEL/2021 DEVKI NANDAN GUPTA 5 5.8 THE AO MADE A SPECIFIC REMARK IN THE ASSESSMEN T ORDER THAT 'IF THE VERSION OF ASSESSEE IS TO BELIEVED THE N, IT IS APPARENT THAT THE ASSESSEE AND MR. SUDHIR BANSAL IS MAKING MOCKERY TO THE LEGAL DEPARTMENT I.E., POLICE AND IN COME TAX AND MISUSING THE FACILITIES PROVIDED TO THE PEOPLE BY FILING FALSE FACTS AT THE TIME OF FIR AND TEP.' WITH THESE REMAR KS, THE AO HELD THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE T HE FACT THAT NO AMOUNT HAS BEEN SPENT ON ENGAGEMENT AND MARRIAGE OF THE DAUGHTER OF THE ASSESSE, WHICH WAS SOLEMNIZED TWO D IFFERENT LAVISH HOTEL(S) OF THE COUNTRY AND ACCORDINGLY, A S UM OF RS.2,10,00,000/- (RS. 1.5 CRORE ON MARRIAGE + RS. 1 0 LAKHS ON ENGAGEMENT + RS. 50 LAKHS FOR JEWELLERY) SPEND BY T HE ASSESSEE HAS BEEN ADDED UNDER THE PROVISIONS OF SEC TION 69C OF THE INCOME TAX ACT. 5.9 I FIND THAT THE AO HAS RELIED ON THE FACTS STA TED IN THE FIR. HOWEVER, THE FACT OF THE MATTER IS THAT THE PO LICE AUTHORITIES INVESTIGATED THE MATTER AND SUBMITTED S TATUS REPORT IN THE COURT OF ILAAKA MAGISTRATE, GURGAON IN THE C ASE ON 28.10.2016. AS PER THE STATUS REPORT, THE POLICE EN QUIRY REVEALED THAT THE MARRIAGE RELATED EXPENSES INCLUDI NG HOTEL EXPENSES WERE BORNE BY THE BRIDEGROOM SIDE. THE POL ICE ENQUIRY CONCLUDED THAT NO TRUTH HAS BEEN FOUND IN THE ALLEG ATIONS MADE IN THE FIR BY MEGHA GUPTA. THE CANCELLATION REPORT OF THANA, SECTOR-51, GURGAON AND ORDER OF MS. NITIKA BHARDWAJ , JUDICIAL MAGISTRATE FOR TAKING NOTE OF CANCELLATION REPORT O F POLICE WAS FORWARDED TO THE AO FOR COMMENTS. HOWEVER, NO RESPO NSE IN THIS REGARD HAS BEEN RECEIVED TILL DATE. ITA NO. 3255/DEL/2018 CO NO. 23/DEL/2021 DEVKI NANDAN GUPTA 6 5.10 FURTHER, IT IS NOTED THAT THE COMPLAINANT I.E . ASSESSEE IN THIS CASE HAS ON HIS OWN DENIED THE ALLEGATIONS MAD E IN THE FIR AND SUBMITTED AN AFFIDAVIT IN THIS REGARD. FURTHERM ORE, MR. SUDHIR BANSAL, THE FATHER OF BRIDEGROOM ALSO SUBMIT TED AN AFFIDAVIT WHEREIN HE DENIED THE FACTS STATED IN THE TAX EVASION PETITION FILED BY HIM. ST IS ALSO NOTED THAT THE IT O. WARD 2(4), GURGAON IN THE CASE OF MRS. MANJU GUPTA, WIFE OF TH E ASSESSEE ACCEPTED THE RETURNED INCOME' BASED ON THE INFORMAT ION GATHERED FROM THE HOTEL. 5.11 IN VIEW OF THE ABOVE DISCUSSION, I FIND THAT THE AO HAS NO MATERIAL ON RECORD OTHER THAN TEP AND FIR TO SUBSTA NTIATE THE ADDITION IN THIS CASE. NO ENQUIRY HAS BEEN MADE BY THE AO TO VERIFY THE FACTS REPORTED IN THE TEP. AS AGAINST TH IS, THE FACTS STATED IN THE FIR HAVE NOT BEEN FOUND TO BE TRUE IN THE ENQUIRY CONDUCTED BY POLICE. THE EXPENSES OF RS. 2,94,102/- ON THE WEDDING FUNCTION ON 16/02/2009 AT SHAHI BAGH, RAM B AGH PALACE, JAIPUR, RAJASTHAN, WAS ALSO INCURRED BY MR. SUDHIR BANSAL, (FATHER OF THE BRIDE GROOM), WHICH IS EVIDE NT FROM THE BILLS RAISED IN THIS REGARD, BY M/S TALUKA TENT DEC ORATORS, JAIPUR AND M/S. JASBEER ELECTRIC DECORATOR, JAIPUR. 5.12 THEREFORE, IT IS EVIDENT THAT THE FACTS AS RE PORTED IN THE FIR BY THE ASSESSEE ARE NOT CORROBORATED WITH ANY I NDEPENDENT ENQUIRY. FURTHER, THE ASSESSEE ALSO DID NOT ENCLOSE ANY DOCUMENTARY EVIDENCE AT THE TIME OF FILING OF FIR T O CORROBORATE THE ALLEGATIONS MADE IN THE FIR. THEREFORE, THE AO HAS NO CORROBORATIVE EVIDENCE ON RECORD TO RELY ON THE FAC TS STATED IN THE FIR. IT IS A SETTLED POSITION THAT ANY ALLEGATI ON SHOULD BE CORROBORATED BY INDEPENDENCE EVIDENCE. THE PRINCIPL E THAT ITA NO. 3255/DEL/2018 CO NO. 23/DEL/2021 DEVKI NANDAN GUPTA 7 EMERGES IS THAT MERE STATEMENT/ ADMISSION HAS NO EV IDENTIARY VALUE UNLESS SUPPORTED BY CORROBORATIVE EVIDENCE. I N SUCH A SITUATION, THE RELIANCE OF THE AO ON THE CONTENTS O F FIR IS NOT APPROPRIATE BECAUSE THE SAME HAVE BEEN DISPROVED BY THE POLICE ENQUIRY AND THE PROOF OF PAYMENT OF THE BILL S IN RELATION TO THE MARRIAGE FUNCTION. 5.13 AS REGARDS, THE QUESTION OF EXPENDITURE INCUR RED BY THE ASSESSEE IN RELATION TO THE MARRIAGE FUNCTION, THE APPELLANT SUBMITTED THAT, IN CONNECTION WITH THE MARRIAGE FUNCTION OF MY DAUG HTER MS. MEGHA GUPRA, I HAVE GIVEN JEWELLERY TO THE DAUG HTER (WEIGHING APPROX 50 GMS.) INCLUDING ONE NECKLACE SE T (30 GMS) AND TWO BANGLES (KARAS) (WEIGHING APPROX 20 GM S). THIS WAS GIVEN OUT OF THE JEWELLERY AVAILABLE WITH MY WIFE MRS. MANJU GUPTA (HER STRIDHAN). THE VALUE OF SUCH JEWELLERY AT THE TIME OF WEDDING WAS APPROX RS. 75, 000/- (I.E. AT THE RATE OF GOLD DURING 2009). A GET TOGETHER FOR GREETING THE NEWLY WEDDED COUPLE WAS ARRANGED BY ME AT THE PALM TOWN AND COUNTRY CLUB, SUSHANT LOK, PHASE-I, GURGAON ON 27/02/2009, WHEREI N AN EXPENDITURE OF RS. 61,097/- WAS INCURRED BY ME. THE DETAILS OF THE SAME WERE FURNISHED TO THE ASSESSING OFFICER ON 27/12/2016 VIDE LETTER DATED 23/12/2016. AN AFFI DAVIT TO THIS EFFECT WAS FURNISHED BEFORE THE A.O. ON 16/12/2016. ITA NO. 3255/DEL/2018 CO NO. 23/DEL/2021 DEVKI NANDAN GUPTA 8 OVER AND ABOVE THIS EXPENDITURE, I MUST HAVE INCURR ED A SUM OF RS. 50,000 APPROX ON VARIOUS OTHER WEDDING R ELATED OTHER INCIDENTALS DURING THE PERIOD OF THE WEDDING. THUS, THE TOTAL EXPENDITURE ON THE WEDDING RELATED FUNCTIONS INCURRED BY THE ASSESSES COMES TO RS. 1,1 1,097/- WHICH WAS OUT OF 'SHAGANS' (CASH GIFTS) RECEIVED BY THE ASSESSEE DURING THE DAUGHTER WAS OUT OF THE OLD JEW ELLERY AVAILABLE WITH THE MOTHER OF THE BRIDE (I.E. OUT OF THE STRIDHAN OF THE MOTHER OF THE BRIDE). 5.14 AS PER THE ABOVE SUBMISSION, THE APPELLANT CLA IMED TO HAVE SPENT A SUM OF RS. 1,11,097/- IN RELATION TO T HE MARRIAGE. IN VIEW OF THE SAME, IT IS NOT A CASE THAT NO AMOUN T WAS SPENT ON ENGAGEMENT AND MARRIAGE OF THE DAUGHTER OF THE A SSESSE. HENCE, THE CONCLUSION OF THE AO THAT 'THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE FACT THAT NO AMOUNT HAS BEEN SPENT ON ENGAGEMENT AND MARRIAGE OF THE DAUGHTER OF THE ASSE SSEE...' IS NOT VALID. IN THE ABSENCE OF ANY EVIDENCE, I DO NOT FIND ANY MERIT IN THE ADDITION MADE BY THE AO IN THIS CASE B ASED ONLY ON THE CONTENTS OF FIR, WHICH STANDS DISPROVED. 4. ON GOING THROUGH THE RECORD, WE FIND THAT THAT T HERE IS ABSOLUTELY NO EVIDENCE AVAILABLE OR GATHERED BY THE REVENUE EXCEPT THE COPY OF THE FIR FILED BY THE ASSESSEE. T HE CONTENTS OF THE FIR AND THE TAXABILITY ARISING OUT OF THE FA CTS IN FIR HAVE BEEN DULY CONSIDERED BY THE LD.CIT(A). HENCE, WE DE CLINE TO INTERFERE WITH THE WELL REASONED ORDER OF THE LD. C IT(A). ITA NO. 3255/DEL/2018 CO NO. 23/DEL/2021 DEVKI NANDAN GUPTA 9 5. SINCE, THE MATTER HAS BEEN ADJUDICATED ON MERITS OF THE CASE, THE CO RAISED IN RELATION TO SECTION 147 BEFA LL. 6. IN THE RESULT, THE APPEAL OF THE REVENUE AND CRO SS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/10/2021. SD/- SD/- (AMIT SHUKLA) (DR. B. R. R. KUMAR) JUDICIAL MEMBER ACC OUNTANT MEMBER DATED: 22/10/2021 *SUBODH KUMAR, SR. PS* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR