ACIT, Circle - 4(2), Ahmedabad V. Smt. Anju Jayeshbhai Patel, Ahmedabad

ITA 392/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5956 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 18-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P PATHAK
• Assessee Lawyers: WRITTEN SUBMISSION NON E
• Keywords: Unexplained cash credit; Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 392/AHD/2016 & C.O. NO. 69/AHD/16 (ASSESSMENT YEAR: 2011-12) A.C.I.T., CIRCLE-4(2), AHMEDABAD V/S SMT. ANJU JAYESHBHAI PATEL 40, NIRANT PARK SOCIETY, OPP. SUN AND STEP CLUB, SOLA ROAD, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AFDPP5453J APPELLANT BY : SHRI O.P. PATHAK, SR. D.R . RESPONDENT BY : WRITTEN SUBMISSION/NONE ( )/ ORDER DATE OF HEARING : 22 -02-201 8 DATE OF PRONOUNCEMENT : 26-02-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. ITA NO. 392/AHD/2016 & C.O. NO. 69/AHD/2016 ARE APP EAL BY THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE PREFERRED AGAIN ST THE ORDER OF THE LD. ITA NO. 392 & C.O. 69/AHD/2016 . A.Y. 2011-12 2 CIT(A)-4, AHMEDABAD DATED 10.12.2015 PERTAINING TO A.Y. 2011-12. NONE APPEARED ON BEHALF OF THE ASSESSEE, WE DECIDED TO P ROCEED EX PARTE. 2. THE FIRST GRIEVANCE OF THE REVENUE RELATES TO THE D ELETION OF THE ADDITION MADE BY THE A.O. MADE U/S. 68 OF THE ACT. 3. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, TH E A.O. NOTICED THAT THE ASSESSEE HAS ADVANCED LOAN OF RS. 20,00,000/- TO SH RI PARTH SURESHBHAI PATEL AND RS. 2,00,000/- TO SHRI JAYESHBHAI PATEL. THE A. O. FOUND THAT BOTH THE LOANS WERE GIVEN IN CASH AND TREATED THE SUM OF RS. 22 LA CS AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. 4. BEFORE THE LD. CIT(A), THE ASSESSEE STRONGLY CONTEN DED THAT THE LOANS WERE GIVEN AND THE ENTRIES HAVE BEEN PROPERLY RECORDED I N THE BOOKS OF ACCOUNTS. IT WAS ALSO CONTENDED THAT PROVISIONS OF SECTION 68 AR E NOT AT ALL APPLICABLE ON THE FACTS OF THE CASE. THE LD. CIT(A) AGREED WITH THE C ONTENTION OF THE ASSESSEE AND DELETED THE ADDITION OF RS. 22 LACS . 5. BEFORE US, THE LD. D.R. STRONGLY RELIED UPON THE FI NDINGS OF THE A.O. 6. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORI TIES BELOW. ADMITTEDLY, IT IS A FACT THAT THE ASSESSEE HAS ADVANCED LOAN TO THE T WO PARTIES. WE FAIL TO UNDERSTAND HOW PROVISIONS OF SECTION 68 ARE APPLICA BLE ON THE FACTS OF THE CASE. IT IS NOT A CASE OF THE A.O. THAT THE ASSESSEE HAS TAKEN UNSECURED LOANS, THEREFORE, APPLYING THE PROVISIONS OF SECTION 68 IS NOT ONLY ERRONEOUS BUT AGAINST THE PROVISIONS OF THE LAW. WE, THEREFORE, D ECLINE TO INTERFERE. GROUND NO. 1 IS DISMISSED. ITA NO. 392 & C.O. 69/AHD/2016 . A.Y. 2011-12 3 7. GROUND NO. 2 RELATES TO THE DELETION OF THE ADDITIO N OF RS. 25 LACS MADE U/S. 68 ON ACCOUNT OF GIFT. 8. THE A.O. FOUND THAT THE ASSESSEE HAS CLAIMED RECEIP T OF GIFT OF RS. 12,50,000/- EACH FROM SHRI ALPESH M. PATEL AND SHRI ASHOK M. PA TEL. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS ALONG WITH COPY OF GIF T DEED. ON RECEIVING NO PLAUSIBLE REPLY, THE A.O. TREATED RS. 25 LACS AS UN EXPLAINED CASH CREDIT AND MADE THE ADDITIONS U/S. 68 OF THE ACT. 9. BEFORE THE LD.CIT(A), THE ASSESSEE BROUGHT TO THE N OTICE, THE CHRONOLOGICAL EVENTS WHICH DEPRIVED THE ASSESSEE TO FURNISH NECES SARY DETAILS. IT WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A) THAT GIFTS WERE REC EIVED FROM THE BROTHERS AND IN SUPPORT OF GIFT DEED GIVING PARTICULARS OF NAME OF THE DONOR AS WELL AS COMPLETE ADDRESS WERE FURNISHED. THE LD. CIT(A) OBSERVED THA T SINCE THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN SUBMITTING THE DETAILS, THE SAME WERE ADMITTED AS A DDITIONAL EVIDENCES AS PER RULE 46A OF THE I.T. RULES. AFTER ADMITTING THE ADD ITIONAL EVIDENCES, THE LD. CIT(A) CONSIDERED THE DOCUMENTS AND FOUND THAT THE GIFTS WERE GENUINE AND THE DONORS HAD SUFFICIENT FUNDS FOR MAKING THE GIFT . THE LD. CIT(A) PERUSED THE RETURNS FILED IN USA BY THE DONORS AND DIRECTED THE A.O. TO DELETE THE ADDITIONS. 10. BEFORE US, THE LD. D.R. STRONGLY SUPPORTED THE FIND INGS OF THE A.O. 11. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DENIAL THAT BOTH THE DONORS WERE BROTHERS OF THE ASSESSEE; THE GIFT WAS RECEIVED THROUGH BANKING CHANNEL. COPIES OF DRAFT/CHEQUE ISS UED BY THE DONOR ALONG ITA NO. 392 & C.O. 69/AHD/2016 . A.Y. 2011-12 4 WITH THE COPY OF PASSPORT AND THE ACKNOWLEDGEMENT O F THE DONOR HAVING FILED THE RETURNS IN USA WERE EXAMINED BY THE LD. CIT(A). IN OUR CONSIDERED OPINION, THE ASSESSEE HAS DISCHARGED THE ONUS CAST UPON HIM BY THE PROVISIONS OF SECTION 68 OF THE ACT. WE, THEREFORE, DO NOT FIN D ANY ERROR OR INFIRMITY IN THE FINDINGS OF THE LD. CIT(A). GROUND NO. 2 IS DISMISS ED. 12. GROUND NO. 3 RELATES TO THE RESTRICTION OF THE ADDI TION MADE ON ACCOUNT OF HOUSE HOLD EXPENSES FROM RS. 3,00,000/- TO RS. 1,00 ,000/-. 13. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, TH E A.O. ASKED THE ASSESSEE TO GIVE DETAILS OF HIS FAMILY MEMBERS & HOUSE HOLD EXPENSES. THE ASSESSEE REPLIED THAT RS. 3.15 LACS WERE THE TOTAL HOUSE HOL D EXPENSES FOR THE YEAR UNDER CONSIDERATION OUT OF WHICH THE ASSESSEE HAS CONTRIB UTED RS. 97,543/-. IT WAS EXPLAINED THAT THE ASSESSEE IS HAVING FIVE FAMILY M EMBERS INCLUDING THREE SCHOOL GOING CHILDREN. THE A.O. WAS OF THE OPINION THAT LOOKING TO THE SIZE OF THE FAMILY AND THE STANDARD OF LIVING, THE HOUSE HO LD EXPENSES SHOWN BY THE ASSESSEE IS ON THE LOWER SIDE. THE A.O. ACCORDINGLY MADE AN ADHOC ADDITION OF RS. 3 LACS. 14. BEFORE THE LD. CIT(A), IT WAS STRONGLY CONTENDED TH AT THE SAME A.O. HAS MADE ADDITION OF RS. 3 LACS IN THE CASE OF THE HUSBAND OF THE ASSESSEE. THEREFORE, A SIMILAR ADDITION IN THE HANDS OF THE ASSESSEE IS NO T JUSTIFIED. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS AND THE REMAND REPORT OF THE A.O., THE LD. CIT(A) CONCLUDED BY HOLDING THAT AN ADDITION OF RS. 1 LAC SHOULD MEET THE ENDS OF JUSTICE AND ALLOWED RELIEF OF RS. 2 LACS. 15. BEFORE US, THE LD. D.R. SUPPORTED THE FINDINGS OF T HE A.O. ITA NO. 392 & C.O. 69/AHD/2016 . A.Y. 2011-12 5 16. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTH ORITIES BELOW QUA THE ISSUE. WE FIND THAT IN THE CASE OF THE HUSBAND OF THE ASSE SSEE, THE LD. CIT(A) HAS RESTRICTED THE DISALLOWANCE TO RS. 1 LACS. THEREFOR E, RESTRICTING THE ADDITION TO RS. 1 LACS IN THE HANDS OF THE ASSESSEE ALSO IS JUS TIFIED. WE, THEREFORE, DECLINE TO INTERFERE. GROUND NO. 3 IS DISMISSED. 17. COMING TO THE CROSS OBJECTION OF THE ASSESSEE, THE FIRST TWO GROUNDS ARE IN SUPPORT OF THE FINDINGS OF THE LD. CIT(A), THEREFOR E, NEEDS NO SEPARATE ADJUDICATION. 18. VIDE GROUND NO. 3 THE ASSESSEE HAS CHALLENGED THE R ESTRICTION OF THE ADDITION TO RS. 1 LAC AND PRAYED THAT THE SAME SHOULD BE DELETE D. WE DO NOT FIND ANY MERIT IN THIS CLAIM OF THE ASSESSEE BECAUSE A SIMILAR ADD ITION IS ALSO MADE IN THE HANDS OF THE HUSBAND OF THE ASSESSEE. IN LINE WITH THE SA ME, THIS GRIEVANCE IS DISMISSED. THE C.O. IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 26- 02- 20 18 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 26/02/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD