Ram Das Goyal (HuF), Etah V. ITO, Etah

ITA 36/AGR/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6818 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-05-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 06-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK MISHRA
• Assessee Lawyers: RAKESH JAIN
• Keywords: Gift
• Section: 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.36/AGR/2009 ASST. YEAR: 1999-2000 SHRI RAM DAS GOYAL (HUF), VS. INCOME-TAX OFFI CER, C/O. BATRA JAIN & CO., WARD 3(1), ETAH. CHARTERED ACCOUNTANTS, 26/209, SANJAY PLACE, AGRA. (PAN : AAGHR 0025 L). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH JAIN, C.A. RESPONDENT BY : SHRI ASHOK MISHRA, JR. D.R. ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 02.09.2008. 2. THE ASSESSEE HAS FILED THIS APPEAL LATE BY 75 DA YS. SINCE THE REASONS FOR FILING THE APPEAL LATE WAS DULY EXPLAINED BY WAY OF AFFIDAVIT. WE FI ND THAT THERE IS SUFFICIENT CAUSE ON ACCOUNT OF WHICH THE APPEAL HAS BEEN FILED LATE BY THE ASSESSE E. WE, THEREFORE, CONDONE THE DELAY. 3. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES T O THE CONFIRMATION OF THE ADDITION OF RS.4,00,000/- BY THE CIT(A) UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 (THE ACT HEREINAFTER). 2 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E SUBMITTED THE RETURN ON 30.11.1999 ON AN INCOME OF RS.1,46,420/- WHICH WAS PROCESSED UNDER S ECTION 143(1). LATER ON, NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 29.03.2006 WHI CH WAS SERVED ON 30.03.2006. THE A.O. NOTED THAT THE ASSESSEE HAS RECEIVED GIFT OF RS.4,0 0,000/- VIDE DD NO.619377 DATED 24.03.1999 FROM SHRI D.K. AGARWAL, TRUSTEE OF M/S. HAR PRASAD BAL NATH PVT. FAMILY TRUST. THE A.O. ALSO NOTED THAT SIMILAR GIFT HAS BEEN GIVEN BY THE SAME TRUST TO SHRI ABHISHEK GOYAL AMOUNTING TO RS.2,00,000 VIDE DD NO.619326 DATED 24.03.1999. TH E A.O. WAS OF THE OPINION THAT THESE WERE NOT GENUINE TRANSACTIONS AND HE ACCORDINGLY ADDED A SUM OF RS.4,00,000/- UNDER SECTION 68 OF THE ACT. WHEN THE MATER WENT BEFORE THE CIT(A), THE CI T(A) CONFIRMED THE ADDITION. 5. BEFORE US THE LD. A.R. POINTED OUT THAT THE CASE OF THE ASSESSEE IS DULY COVERED BY THE DECISION OF THIS BENCH IN ITA NO.35/AGR/2009 IN THE CASE OF SHRI ABHISHEK GOYAL VS. ITO IN WHICH THIS TRIBUNAL VIDE ORDER DATED 08.05.2009 DEL ETED THE ADDITION OF SIMILAR GIFT RECEIVED BY SHRI ABHISHEK GOYAL FROM THE SAME VERY TRUST AMOUNT ING TO RS.2,00,000/-. LD. D.R. WAS FAIR ENOUGH TO CONCEDE THE DECISION. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE NOTED THAT SHRI ABHISHEK GOYAL HAS ALSO RECEIVED GIFT OF RS.2, 00,000/- FROM THE SAME VERY TRUST THROUGH SHRI D.K. AGARWAL, TRUSTEE AND THE ADDITION MADE UN DER SECTION 68 WAS DELETED BY THIS TRIBUNAL VIDE ORDER DATED 08.05.2009 BY OBSERVING S UNDER :- DURING THE FIRST APPELLATE PROCEEDINGS, THE LEGAL AS WELL AS MERITORIOUS GROUNDS WERE ADJUDICATED UPON IN THE SAME MANNER AS WAS DONE BY THE LD. AO. AFTER HEARING BOTH THE SIDES AND AFTER CAREFULLY PE RUSING THE FACTS ON RECORDS IN THE LIGHT OF PROVISIONS AND PRECEDENTS ON THE SUBJE CT, THERE IS NO DOUBT ABOUT THE 3 LEGAL POSITION THAT THE ASSESSEE HAS TO PROVE THE R ECEIPT OF GIFT IN THE SAME MANNER AS IT IS REQUIRED TO PROVE THE CASH CREDITS U/S. 68 OF THE ACT. THE ASSESSEE IS REQUIRED TO PROVE THE IDENTITY AND CREDITWORTHINESS OF DONOR AND THE GENUINENESS OF THE GIFT. IN SO FAR AS THE IDENTITY OF THE DONOR IS CONCERNED, THAT IS OBVIOUSLY NOT IN DOUBT. THE CREDITWORTHINESS OF THE DONOR, IN A W AY, CANNOT BE DOUBTED, BUT WHEN ONE IS CARRIED AWAY BY THE OTHER FACT THAT SHR I D.K. AGAWAL HAS CREATED NUMEROUS TRUSTS AND HE HAS BEEN PROVIDING ACCOMMODA TION ENTRIES IN THE NAME OF GIFTS ETC., IN THAT EVENTUALITY, THE SCALE TIPS IN THE FAVOUR OF THE REVENUE AND FOR THAT MATTER A HIGHER DEGREE OF PROOF MAY BE DESIRED FROM THE ASSESSEE. BUT THE ASSESSEE HAS PROVED THE FACTUM OF GIFT THROUGH GIFT DEED IN QUESTION AND HAS ALSO EXPLAINED OTHER RELEVANT QUESTIONS ASKED BY THE LD. AO. THE AO HAS GIVEN ABOVE MENTIONED POINTS (EXTRACTED IN THE FORMER PART OF T HIS ORDER BUT ALL THESE POINTS ARE BASED ON GENERAL INFERENCE DRAWN BY THE LD. AO. UNDER SIMILAR FACTS AND THE CIRCUMSTANCES, HEAVY GIFTS GIVEN VIA SHRI D.K. AGAR WAL, IN THE CASE OF SHRI MUKESH KUMAR AGARWAL VS. ITO, THIS BENCH HAS TAKEN A VIEW THAT WHEN SHRI D.K. AGARWAL HAS CONFIRMED THE GIFT, THERE IS NO QUESTIO N OF NOT ACCEPTING THE SAME AS GENUINE. THE FACTS IN THE CASE OF MUKESH KUMAR AGAR WAL VS. ITO IN ITA NO. 110/AGRA/2005, A.Y. 2001-02, ORDER DATED 27.07.2005 ARE EVEN WORST WHERE SHRI D.K. AGARWAL HAD INITIALLY GIVEN DIFFERENT STATEMEN T, BUT LATER ON, HE GAVE CONFIRMATORY STATEMENT REGARDING THE GIFT. THEREFOR E, BY RESPECTFULLY FOLLOWING THE ABOVE DECISION DATED 27.07.2005, I OBSERVE THAT THE INFERENCES DRAWN BY THE AO ARE SIMPLY ADHOC AND ILLOGICAL. THE DECISION IN THE CASE OF MANAK CHAND GARG VS. ITO, IN ITA NO. 192/AGR./2007 DATED 30.01.2009 RELI ED ON BY THE DEPARTMENT IS DISTINGUISHABLE ON FACTS AND IS NOT APPLICABLE TO T HE FACTS OF THE CASE. THE OTHER DECISIONS RELIED BY THE REVENUE ARE ALSO DISTINGUIS HABLE ON FACTS. THE IDENTITY AND CREDITWORTHINESS OF THE DONOR, AND GENUINENESS OF T HE TRANSACTION STANDS APTLY PROVED ON RECORD. ACCORDINGLY, I ALLOW GROUND NO. 2 , 3 & 4 OF ASSESSEES APPEAL. 7. RESPECTFULLY FOLLOWING THE AFORESAID ORDER, WE D ELETE THE ADDITION OF RS.4,00,000/-. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.06.2010 ). SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 25 TH JUNE, 2010. 4 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY