AJIT GHOLKAR, MUMBAI V. ITO WD 11(2)(1), MUMBAI

ITA 408/MUM/2013

• Counselvise Citation: 40819914 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-10-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 14-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Assessee Lawyers: DEEPAK TRALSHAWALLA
• Keywords: Gift; Search and seizure
• Section: 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ITA N O. 407 & 408 / MUM/20 1 3 ( ASSESSMENT YEAR : 20 0 1 - 02 & 2002 - 03 ) MR. AJIT GHOLKAR, OM SAIDHAM COMPLEX, CHAPHEKAR BANDHU MARG, MULUND (E), MUMBAI - 81 VS. ITO, WARD - 11(2)(1), MUMBAI PAN/GIR NO. : A DZ PG 1631 K ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI DEEPAK TRALSHAWALLA /REVENUE BY : SHRI ASGHAR ZAIN DATE OF HEARING : 4 TH DECEMBER , 201 4 DATE OF PRONOUNCEMENT 17 TH DECEMBER , 201 4 O R D E R PER R.C.SHARMA (A.M) : TH ESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 30 - 11 - 2012 FOR THE ASSESSMENT YEAR S 200 1 - 02 & 2002 - 03 , IN THE MATTER OF ORDER PASSED U/S.143(3) R.W.S.147 OF THE ACT . 2. FACTS IN BOTH THE YEARS ARE SIMILAR. THE ASSESSEE IS AGGRIEVED FOR REOPENING OF THE ASSESSMENT U/S.147 OF THE ACT AS WELL AS FOR CONFIRMING THE ADDITION ON ACCOUNT OF CAPITALIZATION FEES PAID FOR STUDY OF DAUGHTER OF THE ASSESSEE. 3. RIVAL CON TENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT THERE WAS SEARCH AND SEIZURE OPERATION AT D.Y.PATIL GROUP, WHEREIN IT WAS FOUND THAT CERTAIN CAPITALIZATION FEES WAS PAID BY THE STUDENTS FOR THEIR STUDY/GETTING ADMISSION. ON THE BASIS O F THIS MATERIAL, ITA NO.407&408/13 2 THE AO ISSUED NOTICE TO THE ASSESSEE U/S. 148 OF THE ACT. THEREAFTER ASSESSMENT WAS COMPLETED AND ADDITION OF RS. 5,40,000/ - WAS MADE IN THE A.Y.2001 - 02 ON THE PLEA THAT THE AMOUNT OF FEE PAID WAS UNEXPLAINED. ACCORDINGLY, ADDITION WAS MADE U/S.69 OF THE ACT AMOUNTING TO RS. 5,40,000/ - . 4. IT WAS ARGUED BY THE LD. AR THAT THERE WAS NO LIVELINK BETWEEN THE DOCUMENT FOUND DURING THE COURSE OF SEARCH WITH ANY AMOUNT PAID BY THE ASSESSEE ON ACCOUNT OF FEES . AS PER THE LD. AR , MS. PRANJAL GHOLKAR WAS MAJOR AT THE TIME OF STUDY OF MBBS. NOTHING WAS PAID BY THE ASSESSEE DR. AJIT GHOLKAR, THEREFORE, THERE WAS NO REASON TO REOPEN THE ASSESSMENT OF DR. AJIT GHOLKAR. ON MERIT, IT WAS ARGUED THAT ASSESSEE HAS FURNISHED COMPLETE LIST OF PERSONS FROM WHO HE R DAUGHTER HAS RECEIVED GIFT. ALL THE PERSONS GIVING GIFT WAS IN CLOSE RELATION WITH THE ASSESSEE HAVING SUFFICIENT CREDITWORTHINESS AND EACH OF THEM HAVE GIVEN GIFT OF RS. 20,000/ - FOR PAYMENT OF COLLEGE FEE. 5. ON THE OTHER HAND, LEARNED DR RELIED ON THE ORDER OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT A SEARCH WAS CARRIED OUT IN THE CASE OF M/S RAMARAO ADIK EDUCATION SOCIETY ON 20 - 7 - 2005, WHEREIN RECEIPT OF CAPITALIZATION FEE OF RS. 5.40 LAKHS BY MS. PRANJAL GHOLKAR WAS FOUND. THE AO ISSUED NOTICE TO THE FATHER OF THE ASSESSEE BY MS. PRANJAL GHOLKAR . THE ASSESSEE APPEARED BEFORE THE DDIT ALONG WITH HIS DAUGHTER . IT WAS STATED THAT MS. PRANJAL GHOLKAR HAD PAID DONATION OF RS. 5.40 LAKHS, WHICH WAS RECEIV ED BY HER AS GIFT ON CELEBRATION OF HER PASSING HSC 12 TH BOARD EXAMINATION. WE FOUND ITA NO.407&408/13 3 THAT FATHER OF THE ASSESSEE APPEARED BEFORE THE DDIT AND SUBMITTED DETAIL OF SOURCE OF CAPITALIZATION FEES RECEIVED FROM VARIOUS DONORS. THIS LIST CONSISTED OF 82 PERSONS. WE HAD CAREFULLY GONE THROUGH THE LIST SO FILED BEFORE THE INCOME TAX AUTHORITIES, WHEREIN IT CLEARLY GIVES THE AMOUNT RECEIVED, DATE OF RECEIPT, RELATION OF DONOR WITH MS. PRANJAL GHOLKAR, COMPLETE ADDRESS OF THE DONOR ETC. AFTER GOING THROUGH THE ENTIRE LIST, WE FOUND THAT THESE DONORS WERE IN CLOSE RELATION/FRIEND CIRCLE OF THE ASSESSEE. WE FOUND THAT DONATION WAS GIVEN MAINLY BY THE GRANDFATHER, GRANDMOTHER, UNCLE AUNTY, FAMILY FRIENDS ETC. FULL ADDRESS OF ALL THESE PERSONS WERE FURNISHED BEFORE THE AO AND SOME OF THESE DONORS WERE ALSO APPEARED BEFORE AO AND CONFIRMED THE DONATION. WE FOUND THAT GIFTS WERE RECEIVED BY MS. PRANJAL GHOLKAR ON SUCCESS IN 12 TH EXAMINATION. LOOKING TO THE AMOUNT OF GIFT, RELATION OF THE DONORS WITH MS. PRANJAL GHOLKAR, WE A RE SATISFIED THAT THE ASSESSEE HAS DISCHARGED ITS PRIMARY ONUS OF HAVING RECEIPT OF THE GIFTS FROM RELATIVES/FAMILY FRIENDS, WHICH WAS UTILIZED FOR GIVING FEE TO THE COLLEGE. NOT ONLY THE NAME OF RELATI VES WERE GIVEN BUT THE FULL ADDRESS OF THE DONORS WERE ALSO GIVEN. WITHOUT MAKING ANY ENQUIRY ON THE ADDRESSES AND WITHOUT BRINGING ANY CONTRARY MATERIALS ON RECORD , THE AO HELD THAT GIFTS SO RECEIVED BY MS. PRANJAL GHOLKAR WAS BOGUS. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN THE ACTION OF AO FOR DECLINING THE CLAIM OF SMALL GIFTS WHICH WERE RECEIVED FROM CLOSE RELATIVES/FAMILY FRIENDS AND UTILIZED FOR PAYMENT OF COLLEGE FEES. 7. FACTS AND CIRCUMSTANCES DURING THE ASSESSMENT YEAR 2003 - 04 ARE SIMILAR, FOLLOWING THE SAM E REASONING AS DISCUSSED FOR A.Y.2001 - 02, WE ITA NO.407&408/13 4 DIRECT THE AO TO DELETE THE ADDITION SO MADE IN THE HANDS OF THE FATHER OF THE ASSESSEE DR. AJIT GHOLKAR. 8 . IN THE RESULT, BOTH APPEAL S OF THE ASSESSEE ARE ALLOWED , IN TERMS INDICATED HEREINABOVE. ORDER PRONOU NCED IN THE OPEN COURT ON THIS 17 /12 / 201 4 . 17 /12 / 2014 SD/ - SD/ - ( ) ( SANJAY GARG ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 17 /12 /2014 /PKM , PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//