Sh. Mukut Bihari Gupta, Rohtak V. ITO, Rohtak

ITA 3608/DEL/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6586 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 07-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 20-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Keywords: Gift

Judgement Text

ITA NO. 3608/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 3608/DEL/2009 A.Y. : 2003-04 SH. MUKUT BIHARI GUPTA, 207/35, MAHARAJA AGARSAIN COLONY NAYA PARAO, ROHTAK (PAN : AAWPG2280Q) VS. INCOME TAX OFFICER, WARD - 2, INCOME TAX OFFICE, ROHTAK (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPODENT ) (RESPODENT ) (RESPODENT ) (RESPODENT ) ASSEESSEE BY : NONE DEPARTMENT BY : SMT. MONA MOHANTY, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 28.7.2 009 PERTAINING TO ASSESSMENT YEAR 2003-04. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INCO ME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF ` 3,10 ,000/- MADE BY THE ASSESSING OFFICER AS UNDISCLOSED INCOME OF THE ASSE SSEE. 3. IN THIS CASE, ASSESSING OFFICER OBSERVED THAT A SSESSEE HAS GIVEN A GIFT OF ` 4,00,000/- TO SHRI JAI BHAGWAN GUPTA. THE SOURCE OF THE GIFT WAS ` 4 LACS WAS AS UNDER:- I) ` 90,000/- WITHDRAWN FROM PPF ACCOUNT AND ITA NO. 3608/DEL/2009 2 II) ` 3,00,000/- RECEIVED FROM SHRI GOPAL GUPTA, SO N OF THE ASSESSEE TO WHOM HE HAD GIVEN A LOAN OF THIS AMOUNT DURING THE YEAR 2001. 3.1 ASSESSING OFFICER CONSIDERED THE ISSUE AND NOT ED THE ASSESSEES SUBMISSION AND CONCLUDED AS UNDER:- SUBMISSIONS OF THE ASSESSEE WAS FORWARDED APPRISED TO THE ADDITIONAL COMMISSIONER OF INCOME TAX WHO ISSUED THE FOLLOWING GUIDELINES:- THE CASE WAS DISCUSSED WITH THE ASSESSING OFFICER IN THE LIGHT OF ENQUIRY CONDUCTED WITH PNB W.R.T. MAJORITY OF FDR AND REPLY DATED 31.10.2008 FILED BY THE ASSESSEE. IN VIEW OF THE REPLY OF THE PNB AND THE EVASIVE AND CONTANC ILY CHANGED STAND OF THE ASSESSEE. THE ASSESSING OFFIC ER MAY TAKE APPROPRIATE ACTION W.R.T. THE AMOUNT OF ` 3,10 ,000/-. IT IS CONCLUDED THAT SUM OF ` 3,10,000/- DEPOSITED CASH IN TO PNB, KATH MANDI, ROHTAK BEFORE GIVING GIFT OF ` 4,0 0,000/- TO SHRI JAI BHAGWAN GUPTA WAS OUT OF UNDISCLOSED I NCOME OF THE ASSESSEE ON THE FOLLOWING GROUNDS:- I) THE ASSESSEES VERSION THAT I MADE LOAN OF ` 3,00,000/- TO SH. GOPAL GUPTA DURING 2001 (23.3.2001). II) SHRI GOPAL GUPTA ADMITTED OF HAVING GIFT OF ` 3,00,000/- FROM HIS FATHER MUKAT BEHARI. III) SHRI GOPAL GUPTA CONFIRMED HAVING REPAID SAME AMOUNT OF ` 3,10,000/- TO HIS FATHER ON GIFT WHICH H E ITA NO. 3608/DEL/2009 3 RECEIVED DURING 2001 VIDE CHEQUE NO. 817-814 DATED 17.10.02. IV) NO CHEQUE WAS ISSUED AND CREDITED INTO BANK ACCOUNT OF SHRI MUKAT BEHARI. V) FREQUENT CHANGE OF STAND BY THE ASSESSEE REFLECT THA T ASSESSEE MADE CONCOCTED STORY TO GIVE SHAPE TO THE TRANSACTION. VI) STAND OF TAKEN BY USED CASH BY ENCASHMENT OF FDR PROVED WRONG BECAUSE THE ENCASHMENT PROCEEDING OF FDR WAS NOT USED FOR CASH DEPOSIT. KEEPING IN VIEW ABOVE DETAILED DISCUSSION, INCOME OF THE ASSESSEE IS RECOMPUTED AS UNDER:- INCOME DECLARED ` 1,10,632/- ADD:- AS DISCUSSED ABOVE ` 3,10,000/- TOTAL INCOME ` 4,20,632/- R/O ` 4,20,630/- 4. ASSESSEE APPEALED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AGAINST THE ABOVE ORDER. THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND CONCLUDED AS UNDER:- THE ISSUE INVOLVED AND THE SUBMISSIONS MADE BY APPE LLANT HAVE BEEN CONSIDERED VIS-A-VIS A DISCUSSION IN THE ASSES SMENT ORDER. THE APPELLANT HAD DEPOSITED CASH INTO PNB KATH MANDI ROHTAK BEFORE GIVING GIFT OF ` 4,00,000/- TO SHRI J AI BHAGWAN GUPTA; ITS STAND HAS BEEN CONFLICTING ITSELF BEFORE THE ASSESSING OFFICER I.E. THE AMOUNT GIVEN WAS ON ACCOUNT OF GIF T OR IT WAS A ITA NO. 3608/DEL/2009 4 LOAN; NO SANE PERSON AS MENTIONED ABOVE IN THE ORDER OF THE ITAT WOULD GIVE GIFT OF ` 4,00,000/- OUT OF RETIREMENT B ENEFITS. THEREFORE OUT OF THE THREE NECESSARY CONDITIONS FOR A TRANSACTION TO BE A GIFT I.E. IDENTITY OF THE DONOR, CREDITWO RTHINESS AND GENUINENESS OF THE TRANSACTION; TWO CONDITIONS OF T HE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION ARE NOT FULFILLED. MORE SO THERE WAS NO RELATIONSHIP WITH THE DONEEE AND NEITHER WAS THERE ANY OCCASION FOR MAKING THE GIFT. THE APPELLANT HAD DEPOSITED CASH OF ` 3,10,000/- FROM ITS UNDISCL OSED INCOME BEFORE MAKING THE ALLEGED GIFT; THEREFORE THE ADDITI ON OF ` 3,10,000/- MADE BY THE ASSESSING OFFICER IS CONFIRME D. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APP EAL BEFORE US. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATI VE. NONE APPEARED ON BEHALF OF THE ASSESSEE. IN OUR CONSI DERED OPINION, THE MATTER CAN BE DISPOSED OF BY HEARING THE LD. DEPAR TMENTAL REPRESENTATIVE AND PERUSING THE RECORDS. UPON CARE FUL CONSIDERATION, WE FIND THAT ASSESSEE HAD BEEN ASSESSED TO TAX FOR THE AMOUNT OF GIFT, HE HAS GIVEN. LD. COMMISSIONER OF INCOME TAX (APPEA LS) HAS OBSERVED THAT NO SANE PERSON COULD GIFT OF ` 4,00,000/- OUT OF THE RETIREMENT BENEFITS. WE FIND THIS IS NOT TENABLE IN LIGHT OF THE FACTS OF THIS CASE AND THE DOCUMENTS SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AND THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) THAT ASSESSEE HAD GIVEN A LOAN TO SHRI GOPAL GUPTA D URING THE YEAR 2001, WHICH HAS BEEN DULY ADMITTED BY THE LONEE. SHRI GOPAL GUPTA CONFIRMED HAVING REPAID THIS AMOUNT OF ` 3,10,000/- . UNDER THE CIRCUMSTANCES, WE FIND THAT SOURCE OF GIFT MADE BY THE ASSESSEE IS DULY EXPLAINED AND ADDITION ON THIS ACCOUNT MADE BY THE REVENUE IS ITA NO. 3608/DEL/2009 5 NOT SUSTAINABLE. ACCORDINGLY, WE SET ASIDE THE O RDERS OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/6/2011 UPO N CONCLUSION OF HEARING. SD/- SD/- [I.P. BANSAL] [I.P. BANSAL] [I.P. BANSAL] [I.P. BANSAL] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 07/6/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES