ITO, New Delhi V. Harinder Bhatia (HUF), Delhi

ITA 3524/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3448 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-07-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 10-08-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Assessee Lawyers: K K SINGH
• Keywords: Gift; Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER I.T. A. NO.3524/DEL/2009 ASSESSMENT YEAR : 2004-05 INCOME-TAX OFFICER, SHRI HARINDER KUMAR BHATIA HU F, WARD 34(3), NEW DELHI. VS. 855, WELCOME HOME SEELAM PUR, NEW DELHI. PAN: AABHH9569Q (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SALIL MISHRA, SR. DR. RESPONDENT BY: SHRI K.K. SINGH , AR. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL AGAINST THE ORDER DATED 15 .04.2009 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) PE RTAINING TO THE ASSESSMENT YEAR 2004-05. 2. THE DEPARTMENT HAS TAKEN THE FOLLOWING GROUNDS:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD . CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.10,51,000/- MA DE BY THE AO ON ACCOUNT OF UNDISCLOSED BANK DEPOSITS U/S 68 OF T HE I.T. ACT, 1961. THE LD. CIT(A) ERRED IN LAW IN ACCEPTING THE ADDITI ONAL EVIDENCES DURING THE COURSE OF APPELLATE PROCEEDING S WITHOUT PROVIDING AN OPPORTUNITY TO THE AO WHICH IS A VIOLE NCE OF RULE 46A(3) OF THE INCOME TAX RULE, 1962. 2 3. WE HAVE HEARD THE LEARNED DR AS WELL AS SHRI K.K . SINGH, AUTHORIZED BY THE ASSESSEE. 4. IN THE COURSE OF HEARING OF THIS APPEAL, THE AU THORIZED PERSON OF THE ASSESSEE SUBMITTED A COPY OF INCOME-TAX COMPUTATION FORM WHEREBY THE AO GAVE AN APPEAL EFFECT TO THE ORDER OF THE LEARNED C IT(A) BY DELETING THE ALLEGED ADDITION OF RS.10,51,000/- AND SUBMITTED TH AT THE MATTER HAS ALREADY BEEN SETTLED BY THE LEARNED CIT(A). 5. IN THIS CASE, AN ADDITION OF RS.10,51,000/- BEIN G THE AMOUNT OF GIFT CLAIMED TO HAVE BEEN RECEIVED FROM ONE SHRI SUDHIR SACHDEVA. THE AO THEREFORE, ISSUED A NOTICE TO SHRI SUDHIR SACHDEVA TO EXAMINE THE DETAILS OF THE FACTS OF THE GIFT AND FOR RECORDING HIS STATEME NT BUT HE NEITHER APPEARED BEFORE THE AO NOR THE ASSESSEE HAS BEEN ABLE TO PRO DUCE HIM BEFORE THE AO. THE AO, THEREFORE, TREATED THE SUM OF RS.10,51,000/ - TO BE AN UNDISCLOSED INCOME OF THE ASSESSEE. 6. ON AN APPEAL, THE LEARNED CIT(A) DELETED THE ADD ITION. WHILE DELETING THE ADDITION THE LEARNED CIT(A) HAS OBSERVED THAT T HE ASSESSEE HAS FURNISHED THE RELEVANT DETAILS WHICH WERE PLACED ON RECORD. HE FURTHER STATED THAT THE GIFT WAS MADE VIDE PAY ORDER NO.1080403 DATED 9.10. 2003 DRAWN ON STATE BANK OF INDORE, ROHINI, NEW DELHI, WHICH WAS DEPOSI TED IN THE ASSESSEES BANK ACCOUNT. THE LEARNED CIT(A) FURTHER STATED TH AT THE DONOR WAS AN 3 INCOME-TAX ASSESSEE WITH PAN NO.AOBPS-0381-M BEING ASSESSED WITH ITO, WARD 32(4), NEW DELHI. THE LEARNED CIT(A) STA TED THAT THE ASSESSEE HAS ESTABLISHED THAT THE GIFT WAS MADE VOLUNTARILY AND WAS ACCEPTED BY THE ASSESSEE. HOWEVER, HE HAS FAILED TO EXAMINE AS TO WHAT WAS THE OCCASION FOR MAKING A GIFT OF RS.10,51,000/- BY SHRI SUDHIR SACH DEVA TO THE ASSESSEE HUF. THE LEARNED CIT(A) HAS ALSO NOT EXAMINED THE RELATIONSHIP BETWEEN SHRI SUDHIR SACHDEVA AND THE ASSESSEE HUF, WHICH PR OMPTED THE DONOR TO GIVE A GIFT OF RS.10,51,000/- TO THE ASSESSEE HUF. THE LEARNED CIT(A) HAS ALSO NOT GIVEN A FINDING AS TO WHETHER THE TRANSACT ION OF GIFT HAS BEEN DULY SHOWN BY THE DONOR IN HIS INCOME-TAX RETURN AND WHA T WAS THE SOURCE OF MONEY. IT IS ALSO AN ADMITTED POSITION THAT DONOR HAD NOT APPEARED BEFORE THE AO NOR BEFORE THE CIT(A) NOR HE WAS PRODUCED BY THE ASSESSEE IN SPITE OF NOTICES ISSUED BY THE AO. THE LEARNED CIT(A) HA S FAILED TO TAKE THIS FACT INTO ACCOUNT. IN ORDER TO EXAMINE THE GENUINENESS OF THE TRANSACTION OF GIFT, STATEMENT OF DONOR SHRI SUDHIR SACHDEVA AND HIS EXA MINATION BY THE AO IS VITAL SO AS TO ASCERTAIN THE TRUE AND CORRECT AFFAI RS OF THE TRANSACTION. THE LEARNED CIT(A) HAS NOT CALLED FOR ANY REMAND REPORT FROM THE AO IN RESPECT OF VARIOUS DETAILS ON THE BASIS OF WHICH, THE LEARN ED CIT(A) HAS DELETED THE ADDITION AND HAS NOT GIVEN AN OPPORTUNITY TO THE AO TO RECORD THE STATEMENT OF THE ASSESSEE AS WELL AS OF THE DONOR BEFORE DELE TING THE ADDITION. IN THE 4 LIGHT OF THESE FACTS, WE THEREFORE, FIND IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR HIS FRESH ADJ UDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE AO SHALL MAKE FURTHER ENQUIRY TO FIND OUT THE GENUINENESS OF THE GIFT, CREDITWORTHINESS OF THE DONOR, SOURCE OF MONEY FOR PAY ORDER, AND TO AS CERTAIN THE RELATIONSHIP BETWEEN THE ASSESSEE AND SHRI SUDHIR SACHDEVA, AND THE OCCASION & PURPOSE FOR WHICH THE GIFT WAS STATED TO HAVE BEEN GIVEN BY SHRI SUDHIR SACHDEVA. THE ASSESSEE SHALL BE AT LIBERTY TO PRODUCE AND FUR NISH ANY FURTHER EVIDENCES OR MATERIALS BEFORE THE AO IN SUPPORT OF HIS CASE W HICH, IF SO FILED, SHALL BE CONSIDERED THE AO. WE ORDER ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. 8. THIS DECISION WAS PRONOUNCED ON 22 ND JULY, 2011 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- SD/- (K.G. BANSAL) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22ND JULY, 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) BY ORDER 5. DR *MG DEPUTY REGISTRAR, ITAT.