Dinesh Jain, New Delhi V. DCIT, New Delhi

ITA 3421/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9606 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 16-09-2009
• Assessment Year: 2000-2001
• Appeal Filed On: 17-11-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: STEPHEN GEORGE
• Keywords: Unexplained investment; Gift; Search and seizure; Fair market value
• Section: 153A; 234B; 143(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI BEFORE SHRI I.P.BANSAL, JM AND SHRI R.C.SHARMA, AM ITA NOS.3421/DEL/2008, 3422/DEL/2008, 71/DEL/2009 & 3522/DEL/2008 ASSESSMENT YEARS : 2000-01, 2001-02, 2002-03 & 2003 -04 SHRI DINESH JAIN, 201, SURYAKIRAN BUILDING, 19, KASTURBA GANDHI MARG, NEW DELHI. PAN NO.ADBPJ2732Q. VS. DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-21, NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS.3288/DEL/2008, 3289/DEL/2008, 372/DEL/2009 & 40/DEL/2009 ASSESSMENT YEARS : 2000-01, 2001-02, 2002-03 & 2003 -04 DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-21, NEW DELHI. VS. SHRI DINESH JAIN, 201, SURYAKIRAN BUILDING, 19, KASTURBA GANDHI MARG, NEW DELHI. PAN NO.ADBPJ2732Q. (APPELLANT) (RESPONDENT) ITA NO.70/DEL/2009, ASSESSMENT YEAR : 2000-01 SMT.LATA JAIN, 201, SURYAKIRAN BUILDING, 19, KASTURBA GANDHI MARG, NEW DELHI. PAN NO.AANPJ5648L. VS. DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-21, NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO.373/DEL/2009 ASSESSMENT YEAR : 2000-01 DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-21, NEW DELHI. VS. SMT.LATA JAIN, 201, SURYAKIRAN BUILDING, 19, KASTURBA GANDHI MARG, NEW DELHI. PAN NO.AANPJ5648L. (APPELLANT) (RESPONDENT) ITA-3421/D/2008 & 11 OTHERS 2 ITA NOS.38/DEL/2009 & 39/DEL/2009 ASSESSMENT YEARS : 2002-03 & 2003-04 DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-21, NEW DELHI. VS. SHRI DINESH JAIN, HUF, 201, SURYAKIRAN BUILDING, 19, KASTURBA GANDHI MARG, NEW DELHI. PAN NO.ADBPJ2732Q. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH JAIN, CA. REVENUE BY : SHRI STEPHEN GEORGE, CIT-DR. ORDER PER BENCH : THESE ARE CROSS-APPEALS FILED BY THE ASSESSEE AND THE REVENUE AGAINST THE ORDER OF CIT(A) FOR THE AY 2000-01, 2001-02, 2002-0 3 & 2003-04 IN THE MATTER OF ORDER PASSED U/S 153A OF THE IT ACT. 2. AS COMMON GROUNDS ARE INVOLVED IN ALL THESE APPE ALS AND THE ASSESSEES ARE FROM THE SAME FAMILY AND THE ADDITIONS HAVE ALSO BE EN MADE WITH RESPECT TO THE SAME SEARCH, ALL THE APPEALS WERE HEARD TOGETHER AN D ARE NOW BEING DECIDED BY THIS CONSOLIDATED ORDER. 3. FACTS IN BRIEF ARE THAT SEARCH AND SEIZURE OPERA TIONS U/S 132 OF THE INCOME TAX ACT WERE CONDUCTED ON 9.12.2003 IN THE RESIDENT IAL/BUSINESS PREMISES OF THE RELATED PERSONS/CONCERNS OF BEGUM GUTKHA GROUP OF C ASES. ON THE BASIS OF DOCUMENTS FOUND DURING THE COURSE OF SEARCH AND THE STATEMENT RECORDED, VARIOUS ADDITIONS WERE MADE BY THE AO WHICH MAINLY RELATE T O GIFTS RECEIVED BY THE ASSESSEE DURING THE YEARS UNDER CONSIDERATION, INVE STMENT ON ACCOUNT OF PURCHASE OF VARIOUS PROPERTIES AND THE CASH FOUND DURING THE COURSE OF SEARCH ETC. WHILE FRAMING ASSESSMENT U/S 153A, THE AO OBSERVED THAT A S PER THE DOCUMENTS FOUND, THE ASSESSEE AND HIS MINOR CHILDREN WERE IN RECEIPT OF GIFTS FROM VARIOUS FRIENDS VIZ. SHRI NARESH JAIN AND SHRI ANIL JAIN. THESE PE RSONS APPEARED BEFORE THE AO ITA-3421/D/2008 & 11 OTHERS 3 AND THEIR STATEMENTS WERE RECORDED U/S 131. THE AD DITION WAS ALSO MADE ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN PURCHA SE OF VARIOUS PROPERTIES LIKE PROPERTY NO.49, RAMA ROAD, NEW DELHI WHICH WAS PURC HASED FOR RS.24,45,000/- WHEREIN ASSESSEE WAS IN RECEIPT OF INCOME OF RS.3 L AKHS P.A. THE AO OBSERVED THAT ASSESSEE HAS MADE HEAVY INVESTMENT IN INCOME Y IELDING ASSETS AND THAT RENTAL INCOME GENERATED BY THOSE ASSETS WAS DISPROPORTIONA TELY HIGH WHEN COMPARED WITH THE INVESTMENT SHOWN TO HAVE BEEN MADE IN THEM . AS PER AO, THIS DISPROPORTIONATE YIELDING OF INCOME PRIMA FACIE/SUF FICIENTLY INDICATES THAT THE DOCUMENTED INVESTMENT HAS BEEN SUPPRESSED SUBSTANT IALLY. IN THIS CONNECTION, THE ASSESSEE WAS ASKED TO EXPLAIN WHAT THE COST OF ACQU ISITION, IGNORING THE DOCUMENTED INVESTMENT, SHOULD NOT BE TAKEN AT THE F AIR MARKET VALUE AND WHILE DOING SO WHY THE PROVISIONS OF RULE 3 OF PART B OF THE 3 RD SCHEDULE 3 TO THE WEALTH TAX ACT NOT BE TAKEN HELP OF BOTH FOR THE PURPOSES OF INCOME TAX AND FOR THE PURPOSE OF WEALTH TAX ASSESSMENT. THE AO STATED TH AT IN THE ENTIRE BLOCK PERIOD COMPRISING AY 1998-99 TO 2004-05 MANY PROPERTIES HA VE BEEN ACQUIRED BY THE ASSESSEE, WHICH ARE DULY DECLARED IN THE INCOME TAX RETURNS. FURTHER DURING THE PROCEEDINGS U/S 153A/143(3) OF THE ACT, THE DETAILE D CHARTS OF VARIOUS PROPERTIES ACQUIRED BY DIFFERENT ASSESSEES OF THE GROUP, SUBST ANTIATING THE SOURCE OF INVESTMENT, HAVE BEEN FURNISHED AND ARE AVAILABLE O N RECORDS. THE AO ALSO MADE A REFERENCE TO THE VALUATION CELL IN RESPECT OF THE PROPERTY SO PURCHASED BY THE ASSESSEE FOR ASCERTAINING THE FAIR MARKET VALUE OF THE PROPERTY ON THE VERY SAME DATE WHEN THE ASSESSMENT ORDER WAS PASSED. THE AO RESORTED TO PROVISIONS OF WEALTH TAX ACT FOR ARRIVING AT THE FAIR MARKET PRIC E OF THESE PROPERTIES AND MADE ADDITION ON THE BASIS OF DIFFERENCE BETWEEN FAIR MA RKET VALUE SO ARRIVED AT AS PER THE PROVISIONS OF SCHEDULE 3 OF WEALTH TAX RULES. IT WAS SUBMITTED BY THE ASSESSEE THAT ALL THE PROPERTIES SO PURCHASED WERE DULY SUPPORTED BY PROPER CONVEYANCE DEED/SALE DEED AND VALUE OF WHICH HAS DU LY BEEN ACCEPTED BY THE SUB REGISTRAR FOR THE PURPOSE OF STAMP DUTY VALUATION. IT WAS FURTHER SUBMITTED THAT ASSESSEE HAS NOT PAID ANY AMOUNT OVER AND ABOVE THE CONSIDERATION STATED IN THE SAID SALE DEED. IT WAS ALSO STATED THAT THIS FACT CAN FURTHER BE VERIFIED BY SELLER OF ITA-3421/D/2008 & 11 OTHERS 4 RESPECTIVE PROPERTIES WHOSE ADDRESS IS GIVEN IN THE RESPECTIVE SALE DEEDS. IT WAS ALSO BROUGHT TO THE NOTICE OF THE AO THAT IT WAS A CASE OF SEARCH AND NO INCRIMINATING MATERIAL WHATSOEVER HAS BEEN SEIZED O R CAME TO THE NOTICE OF THE DEPARTMENT WHICH OTHERWISE PROVES THAT INVESTMENT I N PROPERTIES HAS BEEN UNDERSTATED. BY REFERRING TO THE DECISION OF HON'B LE SUPREME COURT IN THE CASE OF K.P.VERGHESE 131 ITR 597, IT WAS CONTENDED BY LEA RNED AR THAT ONUS LIES ON THE DEPARTMENT TO PROVE THAT SOME CONSIDERATION OVER AN D ABOVE THE CONSIDERATION STATED IN THE SALE DEED HAVE BEEN INVESTED AND THAT NO ADDITION CAN BE MADE ON PRESUMPTION AND SUSPICIONS. 4. BY THE IMPUGNED ORDER, THE CIT(A) OBSERVED THAT THE AO HAS PROCEEDED ON THE PLEA THAT ANNUAL RENT YIELD ON THIS PROPERTY WA S VERY HIGH AS COMPARED TO THE NORMAL RETURN OF INVESTMENT, ACCORDINGLY APPLYING T HE RENT CAPITALIZATION METHOD, THE AO HAS ARRIVED AT THE FAIR MARKET VALUE. AS PE R CIT(A), SUCH VALUATION DEPENDS UPON VARIOUS FACTORS THAT ARE RULING IN THE MARKET AT THE TIME OF GIVING RENT OR PURCHASING PROPERTY. HE FURTHER OBSERVED T HAT IT IS NOT POSSIBLE TO ADDUCE EVIDENCE IN RESPECT OF EXCHANGE OF MONEY AND MERELY ON THE BASIS OF STAMP DUTY VALUATION AUTHORITY, ONE CANNOT CONCLUDE THAT THE R ATES ADOPTED BY THEM ARE REFLECTING THE TRUE VALUE IN THE OPEN MARKET. WITH OUT REFERRING TO THE SPECIFIC REASON OR JUSTIFICATION, THE CIT(A) HELD THAT IN HI S OPINION THE VALUATION OF THE PROPERTY CAN REASONABLY BE TAKEN AT A RATE WHICH WA S HIGHER THAN THE VALUE DISCLOSED BY THE ASSESSEE. ACCORDINGLY, PART RELIE F WAS GIVEN BY THE CIT(A). BOTH THE ASSESSEE AND REVENUE ARE IN APPEAL AGAINST THE ORDER OF CIT(A). 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAR EFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FROM THE RECORD, WE FOUND THAT ON THE BASIS OF SALE DEED FOUND DURING THE COURSE OF SEARCH IN RESP ECT OF PURCHASE OF VARIOUS PROPERTIES, THE AO FOUND THAT ASSESSEE WAS IN RECEI PT OF RENTAL INCOME IN RESPECT OF THESE PROPERTIES. AS PER AO, THE DISPROPORTIONATE YIELD OF INCOME FROM THESE PROPERTIES INDICATE THAT THE AMOUNT INVESTED HAS BE EN SUPPRESSED. ACCORDINGLY, HE ITA-3421/D/2008 & 11 OTHERS 5 APPLIED PROVISIONS OF RULE 3 OF PART (B) OF THE 3 RD SCHEDULE TO THE WEALTH TAX RULES FOR THE PURPOSE OF DETERMINING THE FAIR MARKE T VALUE OF THESE PROPERTIES. THE AO ALSO MADE A REFERENCE TO THE DVO, AS THE REF ERENCE WAS MADE ONE DAY PRIOR TO THE FRAMING OF ASSESSMENT, HE WAS NOT IN R ECEIPT OF ANY DVOS REPORT. IT IS UNDISPUTED FACT THAT DEPARTMENT HAS NOT REFERRED ANY INCRIMINATING MATERIAL HAVING BEEN FOUND DURING THE COURSE OF SEARCH AND I NVESTIGATION MADE THEREAFTER WHICH INDICATE THAT ASSESSEE HAD PAID ANYTHING MORE THAN WHAT HAS BEEN STATED IN THE SALE DEEDS. IT WAS ALSO NOT THE ALLEGATION OF THE DEPARTMENT THAT THERE WAS ANY DIFFERENCE IN THE VALUE OF THE PROPERTY AS ACCEPTED BY THE SUB REGISTRAR FOR THE PURPOSE OF STAMP DUTY VALUATION. IN VIEW OF THE FA CT THAT NO MATERIAL WAS FOUND INDICATING ANYTHING PAID OVER AND ABOVE THE REGISTE RED SALE PRICE OF THE PROPERTY SO ACQUIRED, KEEPING IN VIEW OF THE DECISION OF HON'BL E SUPREME COURT IN THE CELEBRATED JUDGMENT OF K.P.VERGHESE (SUPRA) WHEREIN IT WAS HELD THAT ONUS LIES ON THE DEPARTMENT TO PROVE THAT SOME CONSIDERATION OVE R AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED HAVE BEEN INVESTED, NO ADDI TION CAN BE MADE ON PRESUMPTIONS AND SUSPICIONS. IN THE LATEST CASE OF CIT VS. SHAKUNTALA DEVI (ITA NO.345/2007), HON'BLE DELHI HIGH COURT HELD IT MAY BE RELEVANT TO NOTE THAT A DIVISION BENCH OF THE COURT COMPRISING DR.ARIJIT PR ASAYATH AND JUSTICE D.K.JAIN, AS THEIR LORDSHIPS THEN WERE RETREATED THAT THERE MUST BE A FINDING OF THE REVENUE THAT THE ASSESSEE HAD RECEIVED AMOUNTS OVER AND ABOVE TH E CONSIDERATION STATED IN THE SALE DEED, FOLLOWING THE RATIO OF K.P.VERGHESE (SUP RA). K.P.VERGHESE (SUPRA) HAS ALSO BEEN FOLLOWED AND APPLIED BY THE SUPREME COURT IN CIT VS. GODAVARI CORPORATION LIMITED 200 ITR 567. THE DIVISION BENC H OF HON'BLE DELHI HIGH COURT IN CIT VS. ASHOK KHETRAPAL 294 ITR 143 OBSERV ED THAT BY REFERRING TO THE REPORT OF VALUATION OFFICER IN THE ABSENCE OF ANY I NCRIMINATING DOCUMENTS FOUND IN THE COURSE OF A SEARCH NO ADDITION COULD BE MADE BY TREATING INVESTMENT AS UNDISCLOSED ON THE BASIS OF ANY DVOS REPORT. THE DECISION IN CIT VS. MANOJ JAIN 287 ITR 285 IS ALSO TO THE SAME EFFECT. IN CI T VS. SHIVAKAMI COMPANY (P) LTD. 151 ITR 79(SC), THEIR LORDSHIPS HAVE ONCE AGAI N RETREATED THAT ONUS WHETHER THE ASSESSEE HAD RECEIVED MORE CONSIDERATION THAN W HAT WAS STATED IN THE ITA-3421/D/2008 & 11 OTHERS 6 DOCUMENTS OF TRANSFER, RESTED ON THE REVENUE AND IN THE ABSENCE OF THAT BURDEN HAVING BEEN BEING DISCHARGED, IT WOULD BE LEGALLY I MPERMISSIBLE TO MAKE ANY INFERENCES AGAINST THE ASSESSEE. 6. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THE ADDITION MADE BY THE AO UNDER THE HEAD UNEXPLAINED INVESTMEN T ON ACCOUNT OF VARIOUS PROPERTIES PURCHASED BY THE ASSESSEE DURING THE BLO CK PERIOD ON THE BASIS OF FAIR MARKET VALUE AS ESTIMATED BY THE AO. ALL THESE ADD ITIONS ARE DIRECTED TO BE DELETED. 7. THE GROUND TAKEN BY THE ASSESSEE WITH REGARD TO THE ADDITION MADE ON ACCOUNT OF VARIOUS GIFTS RECEIVED BY THEM AND THEIR CHILDREN, FROM THE RECORD WE FOUND THAT COPY OF GIFT DEED AND OTHER DOCUMENTS RE LATING TO THE GIFTS WERE SEIZED BY THE AUTHORIZED OFFICIAL DURING THE COURSE OF SEA RCH AND THESE DOCUMENTS WERE SEIZED VIDE ANNEXURE NO.LP-4/A-2, LP 6/A-43. THE A SSESSEE SUBMITTED THAT THE AO SUMMONED THE DONORS AND RECORDED THEIR STATEMENT IN THE PROCEEDINGS U/S 131 OF THE ACT AND THE DONORS FURNISHED THEIR BANK STAT EMENTS, FINANCIAL STATEMENTS LIKE BALANCE SHEETS OF THEIR FIRMS, COPY OF INCOME TAX R ETURNS FOR THE LAST SIX YEARS FOR DEMONSTRATING THE CAPACITY FOR MAKING GIFTS. IT WA S FURTHER SUBMITTED THAT THE DONORS DULY DISCLOSED THE NATURE OF RELATIONSHIP WI TH THE FAMILY AND EXPLAINED THE REASONS FOR GIVING GIFTS TO THE APPELLANT AND HIS M INOR CHILDREN. THE ASSESSEE ALSO SUBMITTED THE COPY OF STATEMENTS OF BOTH THE DONORS RECORDED BY THE AO. THESE STATEMENTS ARE SAID TO HAVE BEEN RECORDED BY THE AO AROUND SIX TO NINE MONTHS BACK BEFORE PASSING THE ASSESSMENT ORDER ON 8.11.20 07. THE ASSESSEE SUBMITTED THAT THE COPIES OF THE STATEMENTS WERE NEVER CONFRO NTED TO THE ASSESSEE BY THE AO INSPITE OF HIS SPECIAL REQUEST MADE BY HIM IN RESPO NSE TO SHOW CAUSE NOTICE ISSUED BY THE AO BEFORE PASSING THE ASSESSMENT ORDER. THE ASSESSEE PLEADED THAT THE ADDITION MADE ON ACCOUNT OF GIFT IS TOTALLY ARBITRA RY AND THE SAME IS MADE ON SUSPICION ONLY. BEING NOT SATISFIED WITH THE REPLI ES OF THE ASSESSEE, THE ADDITION WAS MADE BY THE AO AND THE SAME WAS CONFIRMED BY CI T(A), AGAINST WHICH ITA-3421/D/2008 & 11 OTHERS 7 ASSESSEE IS IN FURTHER APPEAL BEFORE US WITH RESPEC T TO THE VARIOUS ADDITIONS MADE IN THE HANDS OF DIFFERENT ASSESSEES ON ACCOUNT OF GIFT S RECEIVED BY THEM. FROM THE DETAILS OF THE FACTS BROUGHT ON RECORD BY THE AO IT IS VERY CLEAR THAT THE ASSESSEE IS IN THE HABIT OF SHOWING GIFTS IN LARGE SUMS IN HIS NAME AND IN THE HANDS OF OTHER FAMILY MEMBERS. IT HAS BEEN CONCLUSIVELY ESTABLISH ED BY THE AO THAT THE TWO DONORS BY NAME SH.NARESH JAIN AND SH.ANIL JAIN ARE ONLY A NEIGHBOURS WITHOUT ANY RELATIONSHIP WITH THE FAMILY OF THE APPELLANT. IT IS TOTALLY UNIMAGINABLE TO THINK THAT THE NEIGHBOURS COULD GIVE MILLIONS OF RU PEES TO UNKNOWN PERSONS WITHOUT ANY CONSIDERATION. GIFTS USUALLY FLOW FROM CLOSE BLOOD RELATIONS AND CHILDHOOD FRIENDS. THAT TOO ONLY ON AN IMPORTANT O CCASIONS. MOSTLY THESE GIFTS ARE PREVALENT AMONG RELATIONS AND THEY ARE RECIPROC AL IN NATURE. MOST OF THESE GIFTS ARE IN KIND AND CASH GIFTS DO EXISTS BUT THEY ARE IN SMALL DENOMINATION. SELDOM WE SEE HUGE SUMS OF LANDS OF RUPEES AS GIFTS ESPECIALLY TO MINORS. IN THIS CASE THE APPELLANT HAS CLARIFIED THAT HE HAS NOT GI VEN GIFTS TO ANY OF THESE PERSONS EARLIER OR IN SUBSEQUENT PERIOD. HENCE THE CONCEPT OF RECIPROCATION IS TOTALLY LACKING IN THE INSTANT CASE. IT IS ARGUED THAT OUT OF INDEBTEDNESS TO SH. DINESH JAINS FATHER THE GIFTS WERE GIVEN. BUT NO FURTHER DETAILS WERE PRODUCED HOW THESE TWO DONORS WERE INDEBTED TO FAMILY OF THE APPELLANT . FURTHER THE FINANCIAL CAPACITY TO GIVE LAKH OF RUPEES ALSO LACKING IN THIS CASE. MERE FACT THAT THE AMOUNTS WERE ROUTED THROUGH BANK ACCOUNT DOES NOT IPSE FACTOR PR OVES THE CREDITABILITY OF THE DONORS BEYOND DOUBT. TO GIVE LAKHS OF RUPEES AS GI FTS TO NEIGHBOURS THE PERSON SHOULD HAVE BEEN WORTH CRORES OF RUPEES HAVING INCO ME OF SUBSTANTIAL NATURE. NO SUCH CONFIRMATIONS ARE FORTHCOMING TO ESTABLISH THE FINANCIAL SOUNDNESS OF THESE TWO DONORS. ANOTHER FACT TO BE SEEN HERE IS NEITHE R THE DONORS GIVEN GIFTS TO OTHERS NOR THE ASSESSEE RECEIVED GIFTS FROM OTHER CLOSE RE LATIONS. IT ONLY FRUCTIFIES THE BELIEF THAT THE GIFTS ARE NOTHING BUT ASSESSEES OW N INCOME WHICH ARE PLOUGHED BACK AS GIFTS THROUGH OTHER PERSONS. BY REFERRING TO THE VARIOUS DECISIONS REPORTED AT 109 ITD 288, 165 TAXMAN 505, 270 ITR 368 AND 292 ITR 552, THE AUTHORITIES BELOW CAME TO THE CONCLUSION THAT GIFTS ARE NOTHING BUT ASSESSEES OWN MONEY RECEIVED BACK UNDER THE GUISE OF GIFTS FROM UNKNOWN PERSONS. IN THE CASE OF ANIL ITA-3421/D/2008 & 11 OTHERS 8 KUMAR 292 ITR 552, THE HON'BLE DELHI HIGH COURT H AS CATEGORICALLY HELD THAT THE ONUS LIES ON ASSESSEE TO ESTABLISH THE IDENTITY AS WELL AS THE FINANCIAL CAPACITY OF DONOR. IN THE CASE OF CHAIN SUKH RATHI 270 IT R 368, ALTHOUGH GIFT WAS GIVEN BY FATHER TO THE SON, STILL IT IS HELD THAT UNDISCL OSED INCOME OF THE ASSESSEE IN THE ABSENCE OF ANY OCCASION. THE CIT(A) HAS ALSO FORTI FIED THE FINDINGS OF THE AO BY OBSERVING THAT CONSISTENTLY THE COURTS ARE OF THE O PINION THAT APART FROM IDENTITY AND CREDITWORTHINESS, THE GENUINENESS OF THE TRANSA CTION IS OF VITAL ISSUE IN GIFTS. UNLESS OCCASION AND RELATIONSHIP IS ESTABLISHED , THE GIFTS CANNOT BE HELD AS GENUINE. FROM THE PERUSAL OF FAMILY DETAILS IT CAN BE SEEN THAT A NUMBER OF CLOSE RELATIONS ARE AVAILABLE BUT NONE OF THEM HAD GIFTED ANY SUMS TO THE ASSESSEE. HOWEVER, ASSESSEE COULD RECEIVE SUBSTANTIAL AMOUNTS AS GIFTS FROM A REMOTELY CONNECTED PERSONS. ASSESSEE ALSO COULD NOT CONFIRM TO THE FACT THAT HE KNEW THE DONORS INTIMATELY. THIS TYPE OF ONE-SIDED GIFTS OF SUBSTANTIAL AMOUNTS NOT ASSOCIATED WITH ANY OCCASION FROM RELATIVELY UNKNOW N PERSONS IN SUCCESSIVE YEARS DEFIES ANY AMOUNT OF LOGIC. AS DISCUSSED IN PRECED ING PARAS THE WHOLE TRANSACTION IS DESIGNED TO SHOW HUGE AMOUNTS AS GIFTS WITHOUT A NY LIABILITY OF PAYING TAXES. THE FINDINGS SO RECORDED BY THE LOWER AUTHORITIES C OULD NOT BE CONTROVERTED BY THE LEARNED AR BY BRINGING ANY MATERIAL, MUCH LESS A CO GENT MATERIAL SO AS TO PERSUADE US TO DEVIATE FROM THE ALLEGED FINDING. W E THEREFORE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE LOWER AUTHO RITIES IN RESPECT OF THE ADDITION MADE ON ACCOUNT OF BOGUS GIFTS. IN THE RESULT, THE GROUNDS TAKEN BY ALL THE ASSESSEES WITH REGARD TO GIFTS IN VARIOUS YEARS, AR E BEING DISMISSED. 8. WITH REGARD TO GROUND TAKEN BY THE ASSESSEE FOR CHARGING OF INTEREST U/S 234B, IT WAS HELD BY THE COORDINATE BENCH IN THE CA SE OF DINESH JAIN BELONGING TO THE SAME GROUP OF ASSESSEES VIDE ORDER DATED 27.2. 2009 IN ITA NO.2139/D/2009, THAT INTEREST U/S 234B IS TO BE CALCULATED FROM THE DATE OF ORDER U/S 143(1) OR 153A WHICHEVER IS LATER. ITAT HYDERABAD BENCH OF ITAT R ENDERED IN THE CASE OF SRINIVASA RESORTS LTD. VS. ACIT, CIRCLE-3(2), HYDER ABAD VIDE AN ORDER DATED 20.4.2007 PASSED IN ITA NO.1063/HYD/2004 WHEREIN IT WAS HELD THAT INTEREST U/S ITA-3421/D/2008 & 11 OTHERS 9 234B HAS TO BE LEVIED FROM THE DATE ON WHICH THE TO TAL INCOME WAS DETERMINED U/S 143(1) TILL THE DATE ON WHICH THE ASSESSMENT WAS CO MPLETED AFTER REOPENING. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE TRI BUNAL, WE UPHOLD THE IMPUGNED ORDER OF THE LEARNED CIT(A) DIRECTING THE AO TO CHA RGE INTEREST U/S 234B FROM THE DATE OF ORDER U/S 143(1) TILL THE DATE OF ORDER PAS SED U/S 153A. 9. RESPECTFULLY FOLLOWING THE DECISION REFERRED ABO VE, WE DIRECT THE AO TO RECOMPUTED THE INTEREST U/S 234B AS DIRECTED HEREIN ABOVE. 10. OTHER GROUNDS RAISED IN THE APPEALS WERE NOT PR ESSED BY THE LEARNED AR DURING THE HEARING, THE SAME ARE THEREFORE DISMISSE D IN-LIMINE AS HAVING BEEN NOT PRESSED. 11. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE AND REVENUE ARE ALLOWED IN PART, IN TERMS INDICATED HEREINABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2009. SD/- SD/- (I.P.BANSAL) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.09.2009. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR ITA-3421/D/2008 & 11 OTHERS 10