Smt. Renu Khanna, Delhi V. ITO, New Delhi

ITA 3888/DEL/2013

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9302 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 29-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 18-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: VIPIN KHATRI
• Keywords: Gift; Income from undisclosed sources

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.3888/DEL/2013 ASSESSMENT YEAR: 2008-09 MS RENU KHANNA, AG -228, SHALIMAR BAGH, DELHI. PAN: AGEPK1901E VS INCOME - TAX OFFICER , WARD 19(1), NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SHRI VIPIN KHATRI, CA REVENUE BY S HRI SURENDER PAL, SR. DR ORDER PER K. NARASIMHA CHARY, JM AGGRIEVED BY THE ORDER DATED 28/02/2013 IN APPEAL NO. 298/10-11 FOR THE ASSESSMENT YEAR 2008-09 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXII, NEW DELHI (FOR SHORT LD. CIT(A)), ASSESSEE PREFERRED THIS APPEAL. 2. FACTS IN BRIEF TO THE EXTENT RELEVANT FOR THE DISPOSAL OF THIS APPEAL ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND SHE FILED A RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 31 ST OF JULY 2008 DECLARING A TOTAL INCOME OF RS.1,48,000/-. BASING ON THE AIR INFORMATION AND THE BANK STATEMENT OF THE ASSESSEE, LEARNED ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD INTRODUCED RS. 4 LACS IN CASH IN HIS SB ACCOUNT NO. 5374 WITH INDRAPRASTHA SEHKARIBANK LTD DATE OF HEARING 05.12 .2018 DATE OF PRONOUNCEMENT 18 .1 2 .2018 ON 14/12/2007 AND IN SPITE OF REPEATED NOTICES THE ASSESSEE FAILED TO APPEAR BEFORE HIM AS SUCH TREATING THE SAID AMOUNT AS INCOME FROM UNDISCLOSED SOURCES, LEARNED ASSESSING OFFICER ADDED IT BACK TO THE INCOME OF THE ASSESSEE. 3. IN THE APPEAL PREFERRED BY THE ASSESSEE, LD. CIT(A) HELD THAT THE ASSESSEE HAD NOT DISCHARGED THEIR BURDEN OF PROVING THE CAPACITY OF THE CLAIM OF DONOR TO GIVE THE GIFT NOR SHE HAS PROVED THE ACTUAL GIFT OR THE GENUINENESS OF THE TRANSACTION, AS SUCH, NO RELIEF COULD BE ALLOWED TO THE ASSESSEE. HE, THEREFORE, CONFIRMED THE ADDITION. 4. ASSESSEE IS, THEREFORE, BEFORE US IN THIS APPEAL STATING THAT SUCH RS.4 LAKHWAS RECEIVED BY THE ASSESSEE FROM HER SON AS A GIFT ON THE OCCASION OF HER BIRTHDAY ON 04/12/2007 AND AS PER EXCEPTIONS MENTIONED UNDER SECTION 56(2)(VII) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) ANY GIFT RECEIVED FROM A RELATIVE INCLUDING THE SON, IS NOT TAXABLE IN THE HANDS OF THE PERSON RECEIVING THE GIFT AND THEREFORE RS.4 LACS RECEIVED BY THE ASSESSEE IS GIFT FROM HER SON, IS NOT TAXABLE. LEARNED ASSESSING OFFICER, HOWEVER, WITHOUT GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE CONCLUDED THE ASSESSMENT PROCEEDINGS STATING THAT THE ASSESSMENT WAS GOING TO BE BARRED BY TIME, ADDING THE SAID AMOUNT TO THE INCOME OF THE ASSESSEE. IT IS FURTHER CONTENDED BY THE ASSESSEE THAT THE LD. CIT(A) ALSO WITHOUT LOOKING INTO THE NECESSARY PROOFS CONFIRMING THE RECEIPT OF GIFT BY THE ASSESSEE FROM HER SON AND THE BANK ACCOUNT DETAILS OF THE DONOR, CONFIRMED THE SAME. 5. PER CONTRA, LD. DR PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE FAILED TO PRODUCE PROPER RECORD BEFORE THE LD. CIT(A) EXCEPT THE COPIES OF THE DOCUMENTS THAT WERE ALREADY SUBMITTED EARLIER AND INASMUCH AS THERE WAS NO EFFECTIVE REPRESENTATION FOR THE ASSESSEE BEFORE THE AUTHORITIES BELOW, THE AUTHORITIES BELOW ARE JUSTIFIED IN MAKING AND SUSTAINING THE ADDITION. 6. WE HAVE GONE THROUGH THE RECORD. THERE IS NO DISPUTE THAT THE DONOR OF RS.4 LACS TO THE ASSESSEE IS HER OWN SON. THE ASSESSEE PLEADED THAT HER SON IS EMPLOYED IN HCL TECHNOLOGIES LTD AND HE GAVE THE GIFT OF RS.4 LACS ON THE OCCASION OF HER BIRTHDAY. THE BANK ACCOUNT AND FORM 16 AA OF THE DONOR WAS PRODUCED AND WAS AVAILABLE ON RECORD. FROM FORM 16 AA, WE FIND THAT THE SON OF THE ASSESSEE IS EMPLOYED IN HCL TECHNOLOGIES LTD AND IS ALSO AN INCOME TAX ASSESSEE. THE ACCOUNT OF THE DONOR WITH THE ICICI BANK PROVES THAT THE DONOR WITHDREW A SUM OF RS. 1 LAKH AT THE RATE OF RS. 50,000/-ON 25/04/2007 AND 08/08/2007 RESPECTIVELY AND ALSO A SUM OF RS. 3.2 LAKHS ON 18/10/2007. ACCORDING TO THE ASSESSEE OUT OF THESE WITHDRAWALS, HER SON GIFTED HER A SUM OF RS.4 LACS. WHEN THE SON IS AN EMPLOYEE IN HCL TECHNOLOGIES LTD AND HAS GIFTED RS. 4 LACS TO HIS MOTHER AND THE BANK STATEMENTS SHOW WITHDRAWALS SUPPORTING THE CAPACITY OF THE SON TO GIFT RS. 4 LACS TO HIS MOTHER, WE DO NOT FIND ANYTHING SUSPICIOUS NOT TO BELIEVE THE SAID VERSION. HAVING REGARD TO THE SMALLNESS OF AMOUNT AND THE FACT THAT THE SON IS EMPLOYED IN HCL TECHNOLOGIES LTD AND ALSO THE FACT THAT HE IS ALSO AN INCOME TAX ASSESSEE, WE ARE INCLINED TO ACCEPT THE VERSION OF THE ASSESSEE. WE, THEREFORE, FIND IT DIFFICULT TO SUSTAIN THE ADDITION AND ACCORDINGLY DIRECT THE LEARNED ASSESSING OFFICER TO DELETE THE SAME. 7. APPEAL OF THE ASSESSEE IS, ACCORDINGLY, ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2018 . SD/- SD/- (PRASHANT MAHARISHI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH DECEMBER, 2018/VJ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON 17.12.2018 DRAFT PLACED BEFORE AUTHOR 18.12.2018 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON DATE OF UPLOADING ORDER ON THE WEBSITE FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.