ACIT, New Delhi V. Sh. Manoj Mehra, Gurgaon

ITA 4091/DEL/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6597 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 21-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 08-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: MRS RANO JAIN CAS
• Keywords: Unexplained cash credit; Gift; Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `E: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T. A. NO.4091/DEL/2009 ASSESSMENT YEAR : 2004-05 ASSTT. COMMISSIONER OF INCOME-TAX, SHRI MANOJ MEHR A, CIRCLE 33(1), NEW DELHI. VS. HOUSE NO.94, ARJUN MA RG, DLF CITY-I, GURGAON, HARYANA. PAN: AAIPM1011B (APPELLANT) (RESPONDENT ) APPELLANT BY: SHRI A.K. MONGA, SR. DR. RESPONDENT BY: SHRI VED JAIN & MRS. RANO JAIN, CAS. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: IN THIS APPEAL FILED BY THE REVENUE AGAINST THE ORD ER DATED 3.07.2009 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) PERTAINING TO THE ASSESSMENT YEAR 2004-05, THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN DELETING AN ADDITIO N OF RS.20 LAKHS, MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U /S 68 OF I.T. ACT, 1961, WITHOUT CONSIDERING THE FACT THAT THE AS SESSEE COULD NOT PROVE THE IDENTITY, CREDITWORTHINESS & GENUINEN ESS OF DONORS, DURING ASSESSMENT PROCEEDINGS. 2. LD. CIT(A) HAS ALSO ERRED IN ACCEPTING DOCUMENTA RY EVIDENCE IN SUPPORT OF GIFT DEEDS, AFFIDAVITS FROM DONORS, CONFIRMATIONS AND THEIR PAN CARD, COPY OF RETURNS O F INCOME & WEALTH TAX AS ADDITIONAL EVIDENCE. 2 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y PERUSED THE ORDERS OF THE AUTHORITIES BELOW. 3. IN THIS CASE, IT WAS FOUND BY THE ASSESSING OFFI CER THAT THE ASSESSEE HAD ACCEPTED LOAN OF RS.10 LAKH EACH FROM HIS MINOR CHILDREN. THE SOURCE OF MONEY IN THE HANDS OF MINOR CHILDREN WAS EXPLAIN ED TO BE GIFTS RECEIVED FROM FIVE DONORS AGGREGATING TO RS.20 LAKH. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO MADE ENQUIRY ABOUT THE CREDITWO RTHINESS OF THE DONORS. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESS EE ALSO CLAIMED THAT THE ASSESSEES MINOR CHILDREN HAD RECEIVED GIFTS FROM R ELATIVES OF HIS IN-LAWS. SINCE THE DONORS WERE NOT PRODUCED BEFORE THE AO, T HE AO TREATED THE AMOUNT TO BE UNEXPLAINED. THE ASSESSEE THEN FILED APPEAL BEFORE THE LEARNED CIT(A). 4. BEFORE THE LEARNED CIT(A) THE ASSESSEE FURNISHED COPY OF GIFT DEED, AFFIDAVIT, CONFIRMATIONS, BANK STATEMENTS, STATEMEN T OF AFFAIRS, PAN CARD, RATION CARD, ACKNOWLEDGMENT OF INCOME-TAX RETURNS O F THE DONORS TO PROVE THE IDENTITY OF THE DONORS, CREDITWORTHINESS OF THE DONORS AND GENUINENESS OF THE GIFTS. IT WAS CLAIMED BY THE ASSESSEE BEFORE T HE LEARNED CIT(A) THAT ALL THESE DOCUMENTS WERE FURNISHED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. AFTER CONSIDERING ALL THESE DOCUMENT S, THE LEARNED CIT(A) DELETED THE ADDITION. THE LEARNED CIT(A) HAS TAKEN A VIEW THAT THE ASSESSEE 3 ADDUCED DOCUMENTARY EVIDENCE IN SUPPORT OF GIFTS AN D THESE DOCUMENTS INCLUDED GIFT DEEDS, AFFIDAVITS FROM DONORS, CONFIR MATIONS, THEIR PAN CARDS/RATION CARDS, COPIES OF INCOME-TAX RETURNS AN D RETURNS OF WEALTH AND COPIES OF THEIR BANK ACCOUNT. THE CIT(A) ALSO TAKE N A VIEW THAT THE IDENTITY OF THE DONORS WAS ESTABLISHED AS THEY WERE BORNE OU T OF THE RECORD OF THE DEPARTMENT. HOWEVER, IN THE COURSE OF HEARING OF T HIS APPEAL, IT COULD NOT BE ASCERTAINED EITHER BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE OR BY THE DEPARTMENTAL REPRESENTATIVE WHETHER THESE DOCUMENTS WERE FILED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. IT WAS, THER EFORE, DECIDED TO RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATION AFTER EXAMINING AND VERIFYING THE AFORESAID DOCUMENTARY E VIDENCES ON THE BASIS OF WHICH THE LEARNED CIT(A) HAS DELETED THE ADDITIO N. THE AO SHALL PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. 6. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT I MMEDIATELY AFTER THE HEARING WAS OVER ON 21 ST JUNE, 2011. SD/- SD/- (B.C. MEENA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST JUNE, 2011. 4 ITA NO.4091/DEL/2009 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.