Sh. Lal Singh Yadav, Haryana V. ITO, Rewari

ITA 3750/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98340 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 08-12-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 09-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Keywords: Gift; Additional evidence
• Section: 143(3); 148

Judgement Text

1 ITA N OS. 3749,3750,3751/DEL/2015 IN THE INCOME TAX APPELLAT E TRIBUNAL DELHI BENCH: SMC 1 NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCO UNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A .NO.-3749/DE L/2015(A.Y 2006-07) I.T.A .NO.-3750/DE L/2015(A.Y 2007-08) I.T.A .NO.-3751/DE L/2015(A.Y 2010-11) LAL SINGH YADAV HOUSE NO. 39, GALI NO. 1 SARSHWATI VIHAR, BAWAL ROAD, REWARI HARYANA AAAPY7728H (APPELLANT) VS ITO WARD-2 REWARI (RESPONDENT) APPELLANT BY SH. GEORGE KOSHI, CA RESPONDENT BY SH. AMRIT LAL, SR. DR ORDER PER SUCHITRA KAMBLE, JM (ASSESSMENT YEAR 2006-07) THIS APPEAL IS FILED AGAINST THE ORDER DATED 7/4/20 15 PASSED BY LD. CIT(A)S ROHTAK. 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- 1. THAT THE ORDER OF THE HONBLE CIT (APPEALS) IS CONT RARY TO LAW AND THE FACTS OF THE APPELLANTS CASES. DATE OF HEARING 08.12.2015 DATE OF PRONOUNCEMENT 29.12.2015 2 ITA N OS. 3749,3750,3751/DEL/2015 2. THAT THE HONBLE CIT (APPEALS) ERRED IN NOT HOLDING THAT THE ISSUE OF THE NOTICE UNDER SECTION 148 WAS BARRED BY LIMITATION AND ALL THE PROCEEDINGS THERE UNDER WERE WRONG AND ILLEGAL. 3. THAT THE HONBLE CIT (APPEALS) ERRED IN NOT CONSIDE RING AS GENUINE THE GIFT OF RS.100000/- RECEIVED BY THE ASS ESSEE FROM HIS FATHER AND IN IGNORING THE CONFIRMATION OF GIFT GIVEN BY HIS FATHER, THE BANK PASS BOOK OF THE FATHER WHI CH SHOWED THE PAYMENT MADE TO THE ASSESSEE, THE AFFIDAVIT OF SHRI SUBH RAM YADAV SON OF LATE SHRI RAM LAL YADAV WHO WITNES SED THE GIFT AND THE STATEMENT OF THE WITNESS OF THE GI FT. 4. THAT THE HONBLE CIT (APPEALS) ERRED IN REJECTING T HE CONFIRMATION OF THE GIFT ON THE GROUND THAT IT WAS NOT REGISTERED. 3. THE ASSESSEE LAL SINGH YADAV IS A GOVERNMENT EMP LOYEE SINCE 1981 AND PRESENTLY WORKING IN THE OFFICE OF DISTRIC T INDUSTRIES CENTRE REWARI. DURING ASSESSMENT YEAR 2006-07, HE RECEIVED SALARY OF RS.1,24,354/- AND FILED HIS INCOME TAX RE TURN ACCORDINGLY. THEREAFTER, THE DEPARTMENT ISSUED A NOTICE U/S 148 DATED 14/10/2013 LATER ON DECIDED THE CASE U/S 148, 143 B Y MAKING AN ADDITION OF RS.97,400/- ON ACCOUNT OF INVESTMENT IN A FLAT ALLOTTED BY SIDCO SOCIETY MANESAR. WHEREAS DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE RECEIVED A GIFT OF RS. 1 LAC FROM HIS FATHER SHRI RAM YADAV AND OUT OF THESE FUNDS THE AB OVE INVESTMENT OF RS.97,500/- WAS MADE. IN SUPPORT OF ABOVE GIFT C ONFIRMATION OF GIFT DEED DULY SIGNED BY THE DONOR ALONG WITH BANK PASS BOOK WAS SUBMITTED BY THE ASSESSEE ALONG WITH THE AFFIDAVIT OF SH SUBH RAM YADAV S/O SH. RAM YADAV AND BROTHER OF THE ASSESSEE WHO WAS A 3 ITA N OS. 3749,3750,3751/DEL/2015 WITNESS IN RESPECT OF THE GIFTS GIVEN BY THEIR FATH ER TO THE ASSESSEE, BUT THE ASSESSING OFFICER OVERLOOKED THESE DOCUMENT S AND MADE THE ADDITION OF RS.97,500/-. 4. THE LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESS ING OFFICER. THE CIT(A) HELD THAT BY PRODUCING A WITNESS AT THE REMAND STAGE WHO IS THE BROTHER OF THE ASSESSEE IS JUST A SELF S ERVING MECHANISM TO SUIT THE CLAIMS OF THE ASSESSEE. 5. THE AR SUBMITTED THAT ALL THE CONFIRMATIONS OF T HE GIFT DEED WAS PRODUCED BEFORE THE A.O AS WELL AS LD. CIT(A). THE AR FURTHER SUBMITTED THAT THE CONFIRMATION OF THE GIFT DEED BY HIS FATHER I.E. THE DONOR HAS BEEN SUBMITTED TO THE ASSESSING OFFICER. THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE HIS FATHER I.E. THE DO NOR FOR STATEMENT BEFORE THE ASSESSING OFFICER AS HIS FATHER DIED ON 03.06.2011. 6. THE DR RELIED ON A.OS ORDER AND LD. CIT(A) ORDE R. 7. WE HAVE PERUSED THE RECORDS AND HEARD BOTH THE P ARTIES. THE LD. CIT(A) HAS IGNORED THE FACT THAT THE ASSESSEE P RODUCED THE CONFIRMATION OF GIFT DEED DULY SIGNED BY THE DONOR AS WELL AS THE AFFIDAVIT OF THE SHRI SUBRAO YADAV WHO IS A BROTHER OF ASSESSEE AND WITNESS TO THE GIFT DEED BEFORE THE A.O.. SINCE THE FATHER OF THE 4 ITA N OS. 3749,3750,3751/DEL/2015 ASSESSEE DIED ON 3/6/2011, THE INSISTENCE OF STATEM ENT OF THE DECEASED FATHER IS NOT PROPER ON PART OF THE ASSESS ING OFFICER. THE AFFIDAVIT/STATEMENT OF BROTHER OF THE ASSESSEE IS S UFFICIENT MATERIAL TO SHOW THAT THE GIFT WAS FROM HIS FATHER. IN VIEW OF THIS, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT PROPE R AND LD. CIT(A)S ORDER IS SET ASIDE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ASSESSMENT YEAR 2007-08 9. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- 1. THAT THE ORDER OF THE HONBLE CIT (APPEALS) IS CONT RARY TO LAW AND THE FACTS OF THE APPELLANTS CASE. 2. THAT THE HONBLE CIT (APPEALS) ERRED IN NOT CONSIDE RING AS GENUINE THE GIFT OF RS.150000/- RECEIVED BY THE ASS ESSEE FROM HIS FATHER AND IN IGNORING THE CONFIRMATION OF GIFT GIVEN HIS FATHER, THE BANK PASS BOOK OF THE FATHER WHICH SHOWED THE PAYMENT MADE TO THE ASSESSEE, THE AFFIDAVIT OF SHRI. SUBH RAM YADAV SON ON LATE SHRI RAM LAL YADAV WHO WITNES SED THE GIFT AND THE STATEMENT OF THE WITNESS OF THE GI FT. 3. THAT THE HONBLE CIT (APPEALS) ERRED IN NOT CONSIDE RING AS GENUINE THE GIFT OF RS.430000/- RECEIVED BY THE ASS ESSEE FROM SMT. SANTRA DEVI, HIS REAL AUNTY (CHACHI) AND IN IGNORING THE CONFIRMATION OF GIFT GIVEN BY SMT. SAN TRA DEVI, THE BANK PASS BOOK OF SMT. SANTRA DEVI WHICH SHOWED THE PAYMENT MADE TO THE ASSESSEE, AND THE AFFIDAVIT OF THE 5 ITA N OS. 3749,3750,3751/DEL/2015 ASSESSEE THAT BECAUSE OF TYPHOID HE WAS UNABLE TO P RODUCE THE DONOR BEFORE THE LD. A.O ON 26/10/2012. 4. THAT THE HONBLE LD. CIT(APPEALS) ERRED IN REJECTIN G THE CONFIRMATIONS OF THE GIFTS ON THE GROUND THAT THEY WERE NOT REGISTERED. 10. DURING THE A.Y 2007-08, THE ASSESSEE RECEIVE D SALARY OF RS.1,36,032/- AND FILED HIS I.T RETURN ACCORDINGLY. THEREAFTER, THE DEPARTMENT ISSUED A NOTICE U/S 148 DATED 13/10/2011 , AND DECIDED THE CASE U/S 148, 143(3) THE I. TAX ACT, BY MAKING ADDITION OF RS.5,87,400/- AND CREATED AN ADDITION DEMAND OF RS.2,65,880/-. 11. DURING THIS YEAR HE HAD PURCHASED A PLOT FOR RS .5,57,400/- IN THE NAME OF HIS WIFE SMT. RAMA DEVI, AT SARASWATI V IHAR, REWARI, AND THE SOURCE OF THIS INVESTMENT WAS AS UNDER: GIFT OF RS.4,30,000/- RECEIVED FROM HIS REAL AUNTY (CHACHI) SMT. SANTRA DEVI. GIFT OF RS. 1,50,000/- RECEIVED FROM HIS FATHER SH. SIRI RAM YADAV. 12. SMT. SANTRA DEVI (CHACHI OF THE ASSESSEE) HAD S OLD A LAND SITUATED AT VILLAGE MAJRA GURDAS DISTT. REWARI FOR RS. 4,31,250/- ON 13/6/2006, AND THE SAID SALE PROCEED WAS DEPOSITED IN THE OBC BANK A/C. NO. 0962010116730. THEREAFTER, SHE HAD G IFTED A SUM 6 ITA N OS. 3749,3750,3751/DEL/2015 OF RS.4,30,000/- TO THE ASSESSEE ON 16/6/2006 AFTER WITHDRAWING THE SAME FROM HER BANK ACCOUNT, FOR WHICH A CONFIRM ATION OF GIFT DEED WAS ALSO EXECUTED, WHICH WAS ALSO PRODUCED BEF ORE THE A.O DURING ASSESSMENT PROCEEDINGS. BUT UNFORTUNATELY D UE TO ILLNESS (TYPHOID) OF THE ASSESSEE, HE COULD NOT PRODUCE S MT. SANTRA DEVI, THE DONOR, BEFORE THE A.O ON THE FIXED DATE D URING ASSESSMENT PROCEEDINGS, AND THE CASE WAS DECIDED WITHOUT RECOR DING THE STATEMENT OF SMT. SANTRA DEVI AND IN THE ABSENCE OF HER STATEMENT THE SAID GIFT AMOUNT OF RS.4,30,000/- USED FOR PURC HASE OF ABOVE SAID PLOT HAS BEEN DISALLOWED BY THE ASSESSING OFFI CER. THE BALANCE AMOUNT OF RS.1,27,400/- (5,57,500/- - 4,30,000/-) W AS INVESTED OUT OF THE GIFT AMOUNT OF RS.1,50,000/- RECEIVED FROM T HE FATHER OF THE ASSESSEE SH. SIRI RAM YADAV, WHO UNFORTUNATELY EXPI RED IN 3/6/2011, SO DUE TO HIS DEATH HE COULD NOT BE PRODU CED BEFORE THE A.O. HOWEVER, COPY OF CONFIRMATION OF GIFT DEED E XECUTED BY THE SH. SIRI RAM YADAV, IN HIS LIFE TIME, ALONG WITH CO PY OF BANK PASS BOOK WERE PRODUCED BEFORE THE A.O. BUT IN THE ABSE NCE OF STATEMENT OF DONOR THE A.O IGNORED THE SUBMITTED DO CUMENTS AND MADE THE ADDITION OF RS.5,57,400/- TOWARDS THE INCO ME OF THE ASSESSEE. 13. AGGRIEVED WITH THE ORDER OF THE A.O., THE ASSES SEE HAS FILED APPEAL BEFORE THE CIT(A) AND SUBMITTED SOME DOCUMEN TS AS ADDITIONAL EVIDENCE, UNDER RULE 46 OF THE INCOME TA X RULES, WHICH HAS BEEN CONSIDERED AND IN COMPLIANCE TO REMAND REP ORT 7 ITA N OS. 3749,3750,3751/DEL/2015 PROCEEDINGS THE STATEMENT OF THE SMT. SANTRA DEVI ( DONOR) OF RS.4,30,000/- AND STATEMENT OF SH. SUBH RAM YADAV S /O LATE. SHRI SIRI RAM YADAV THE WITNESS OF THE GIFT OF RS.1 ,50,000/- RECEIVED DURING THE A. Y 2007-08 FROM SHRI SIRI RAM YADAV (FATHER OF THE ASSESSEE) WERE RECORDED BY THE A.O. 14. THE AR SUBMITTED THAT ALL THE CONFIRMATIONS OF THE GIFT DEEDS WAS PRODUCED BEFORE THE A.O AS WELL AS LD. CIT(A). 15. THE DR RELIED ON A.OS ORDER AND LD. CIT(A) ORD ER. 16. WE HAVE PERUSED THE RECORDS AND HEARD BOTH THE PARTIES. THE LD. CIT(A) HAS IGNORED THE FACT THAT THE ASSESSEE P RODUCED THE CONFIRMATION OF GIFT DEED DULY SIGNED BY THE DONOR AS WELL AS THE AFFIDAVIT OF THE SHRI SUBRAO YADAV WHO IS A BROTHER OF ASSESSEE AND WITNESS TO THE GIFT DEED BEFORE THE A.O.. SINCE THE FATHER OF THE ASSESSEE DIED ON 3/6/2011, THE INSISTENCE OF STATEM ENT OF THE DECEASED FATHER IS NOT PROPER ON PART OF THE ASSESS ING OFFICER. THE AFFIDAVIT/STATEMENT OF BROTHER OF THE ASSESSEE IS S UFFICIENT MATERIAL TO SHOW THAT THE GIFT WAS FROM HIS FATHER. IN VIEW OF THIS, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT PROPE R IN RESPECT OF GIFT RECEIVED FROM FATHER AND LD. CIT(A)S ORDER IS SET ASIDE TO THAT EXTENT. 8 ITA N OS. 3749,3750,3751/DEL/2015 17. AS RELATES TO THE AMOUNT RECEIVED FROM SMT. SAN TRA DEVI I.E. AUNT OF THE ASSESSEE, THE ASSESSEE, THE ASSESSEE WA S GIVEN AMPLE OPPORTUNITY TO PRODUCE HER BEFORE THE ASSESSING OFF ICER. THE ASSESSEE FAILED TO DO SO. THUS THE ASSESSING OFFIC ER HAS RIGHTLY REJECTED THE SAID GIFT OF RS. 4,30,000/-. THE CIT(A ) HAS ALSO RIGHTLY HELD THAT THE FINANCIAL STATUS OF THE DONOR LOGICAL LY DOES NOT EXPLAIN HE GENEROSITY IN MAKING THE GIFT AND THE CREDITWORT HINESS OF THE DONOR REMAINS UNEXPLAINED. THEREFORE, GROUND NO. 2 OF THE ASSESSEES APPEAL IS ALLOWED AND GROUND NO. 3 IS DI SMISSED. 18. IN RESULT, THE APPEAL IS PARTLY ALLOWED. ASSESSMENT YEAR 2010-11 19. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- 1. THAT THE ORDER OF THE HONBLE CIT (APPEALS) IS CONT RARY TO LAW AND THE FACTS OF THE APPELLANTS CASE. 2. THAT THE HONBLE CIT (APPEALS) ERRED IN NOT CONSIDE RING AS GENUINE THE GIFT OF RS.150000/- RECEIVED BY THE ASS ESSEE FROM HIS FATHER AND IN IGNORING THE CONFIRMATION OF GIFT GIVEN HIS FATHER, THE BANK PASS BOOK OF THE FATHER WHICH SHOWED THE PAYMENT MADE TO THE ASSESSEE, THE AFFIDAVIT OF SHRI. SUBH RAM YADAV SON ON LATE SHRI RAM LAL YADAV WHO WITNES SED THE GIFT AND THE STATEMENT OF THE WITNESS OF THE GI FT. 3. THAT THE HONBLE CIT (APPEALS) ERRED IN REJECTING T HE CONFIRMATIONS OF THE GIFTS ON THE GROUND THAT THEY WERE NOT REGISTERED. 9 ITA N OS. 3749,3750,3751/DEL/2015 20. THE ASSESSEE LAL SINGH YADAV IS A GOVERNMENT E MPLOYEE SINCE 1981 AND PRESENTLY WORKING IN THE OFFICE OF D ISTRICT INDUSTRIES CENTRE REWARI. DURING ASSESSMENT YEAR 2010-11, HE RECEIVED SALARY OF RS.2,70,510/- AND FILED HIS INCOME TAX RE TURN ACCORDINGLY. THEREAFTER, THE DEPARTMENT ISSUED A NOTICE U/S 148 DATED 13/10/2011 LATER ON DECIDED THE CASE U/S 148, 143 B Y MAKING AN ADDITION OF RS.2,14,000/- AND CREATED AN ADDITIONAL DEMAND OF RS. 43,450/-. DURING THIS YEAR HE HAD INVESTED A SUM OF RS. 6,05,000/- IN CONSTRUCTION OF RESIDENTIAL HOUSE AND THE SOURCE OF THIS INVESTMENT WAS AS UNDER: 1,60,118/- HOUSE LOAN TAKEN FROM UCO BANK REWARI 3,37,000/- WITHDREW FROM GPF A/C. 1,08,000/- OUT OF GIFT OF RS. 1,50,000/- RECEIVED FROM HIS FATHER. AN INVESTMENT OF RS.1,08,000/- WAS MADE OUT OF THE GIFT OF RS. 1,50,000/- RECEIVED IN FEBRUARY, 2010 FROM HIS FATH ER, SH SIRI RAM YADAV, FOR WHICH THE DONOR HAD ALSO EXECUTED A CONF IRMATION OF GIFT DEED, WHICH WAS SUBMITTED TO THE A.O. THE SAID GIFT AMOUNT OF RS. 1,50,000/- WAS WITHDRAWN BY THE DONOR FROM HIS K.C.C. BANK A/C. THE FATHER OF THE ASSESSEE DIED ON 03.06.2011. THEREFORE, IT WAS NOT POSSIBLE FOR THE ASSESSEE TO PRODUCE THE DO NOR FOR RECORDING OF STATEMENT BEFORE THE A.O. INSPITE OF S UBMISSION OF DEATH CERTIFICATE OF THE DONOR, DURING THE ASSESSME NT PROCEEDINGS 10 ITA NOS. 3749,3750,3751/DEL/2015 THE A.O. INSISTED FOR PERSONAL PRESENCE OF THE DONO R FOR RECORDING OF HIS STATEMENT AND MADE ADDITION OF RS. 1,50,000/-. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A), BUT CIT(A) ALSO CON FIRMED THE SAME. 21. THE AR SUBMITTED THAT ALL THE CONFIRMATIONS OF THE GIFT DEED WAS PRODUCED BEFORE THE A.O AS WELL AS LD. CIT (A). THE AR FURTHER SUBMITTED THAT THE CONFIRMATION OF THE GIFT DEED BY HIS FATHER I.E. THE DONOR HAS BEEN SUBMITTED TO THE ASSESSING OFFICER. THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE HIS FATHER I.E. THE DO NOR FOR STATEMENT BEFORE THE ASSESSING OFFICER AS HIS FATHER DIED ON 03.06.2011. 22. THE DR RELIED ON A.OS ORDER AND LD. CIT (A) OR DER. 23. WE HAVE PERUSED THE RECORDS AND HEARD BOTH THE PARTIES. THE LD. CIT(A) HAS IGNORED THE FACT THAT THE ASSESSEE P RODUCED THE CONFIRMATION OF GIFT DEED DULY SIGNED BY THE DONOR AS WELL AS THE AFFIDAVIT OF THE SHRI SUBRAO YADAV WHO IS A BROTHER OF ASSESSEE AND WITNESS TO THE GIFT DEED BEFORE THE A.O.. SINCE THE FATHER OF THE ASSESSEE DIED ON 3/6/2011, THE INSISTENCE OF STATEM ENT OF THE DECEASED FATHER IS NOT PROPER ON PART OF THE ASSESS ING OFFICER. THE AFFIDAVIT/STATEMENT OF BROTHER OF THE ASSESSEE IS S UFFICIENT MATERIAL TO SHOW THAT THE GIFT WAS FROM HIS FATHER. IN VIEW OF THIS, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT PROPE R AND LD. CIT(A)S ORDER IS SET ASIDE. 11 ITA NOS. 3749,3750,3751/DEL/2015 24. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 29 TH OF DECEMBER 2015. SD/- SD/- (S.V. MEHROTRA) (SUCHIT RA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29/12/2015 *R. NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 08.12.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 09.12.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .12.2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. .12.2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 30.12.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON .12.2015 PS 12 ITA NOS. 3749,3750,3751/DEL/2015 7. FILE SENT TO THE BENCH CLERK 30.12.2015 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.