Smt. Pratikshben R.Kotak, Baroda V. The ACIT., Circle-3, Baroda

ITA 4190/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5655 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-07-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 22-11-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV BATHAN
• Assessee Lawyers: M J SHAH
• Keywords: Gift; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD D BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND MAHAVIR SINGH , JUDICIAL MEMBER) ITA.NO.4190/AHD/2007 ASSTT.YEAR : 2004-2005 SMT.PRATIKSHABEN R. KOTHAK 42, SAINIKPURI NR.CHANAKYAPURI CROSS ROAD NEW SAMA ROAD BARODA 390 002. VS. ACIT, CIR.3 BARODA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.J. SHAH REVENUE BY : SHRI GAURAV BATHAN O R D E R PER G.D. AGRAWAL, VICE-PRESIDENT: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, BARODA DATED 5.09.2007 ARISING OUT OF THE ORDERS OF THE AS SESSING OFFICER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961. 2. IN THIS APPEAL OF THE ASSESSEE, THE ONLY GROUND RAISED IS AGAINST THE ADDITION OF RS.3,00,000/- MADE BY THE AO BY NOT ACC EPTING THE GIFT CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE. 3. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSES SEE RECEIVED GIFT OF RS.3,00,000/- FROM SHRI LATHIGARA RAMKESHKUMAR JAYA NTILAL RESIDENT OF SUDAN WHO IS HER FAMILY FRIEND. THAT IN SUPPORT OF THE G IFT, THE ASSESSEE HAD FURNISHED THE DECLARATION OF DONOR DULY CERTIFIED BY THE NOTA RY PUBLIC, COPY OF THE PASSPORT OF THE DONOR, COPY OF THE BANK DRAFT AND T HE CERTIFICATE FROM THE BANK THAT THE ABOVE DRAFT WAS PREPARED FROM THE NON-RESI DENT SAVING BANK ACCOUNT OF THE DONOR. THAT THE AO ASKED THE ASSESSEE TO FURNI SH THE COPY OF THE NON- ITA.NO.4190/AHD/2007 -2- RESIDENT SAVING BANK ACCOUNT OF THE DONOR. HOWEVER , ON THE REQUEST OF THE ASSESSEE, THE BANK REFUSED TO FURNISH COPY OF SUCH BANK ACCOUNT, THEREFORE, THE ASSESSEE FURNISHED THE DETAILS OF THE BANK ACCOUNT WITH THE AO AND REQUESTED HIM TO OBTAIN SUCH COPY FROM THE BANK. HE THEREFO RE SUBMITTED THAT THE ASSESSEE HAS DULY DISCHARGED THE ONUS OF PROVING TH E GIFT AND THEREAFTER IF THE AO WANTED ANY FURTHER INFORMATION, HE COULD HAVE OB TAINED SUCH INFORMATION FROM THE BANK. FOR THE FAILURE OF THE AO TO OBTAIN SUCH DETAILS, THE ASSESSEE CANNOT BE PENALISED. HE THEREFORE SUBMITTED THAT T HE ADDITION OF RS.3,00,000/- MADE BY THE AO AND SUSTAINED BY THE CIT(A) MAY BE D ELETED. 4. THE LEARNED DR, ON THE OTHER HAND, STATED THAT I T IS SETTLED LAW THAT THE ONUS IS UPON THE ASSESSEE TO PROVE THE GIFT CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE. TO DISCHARGE SUCH ONUS, THE ASSESSEE HAS TO ESTABLISH THE IDENTITY OF THE DONOR, CREDIT-WORTHINESS OF THE DONOR AND GENUI NENESS OF THE TRANSACTION. THE AO HAS DISCUSSED THE FACTS IN DETAIL AND HAS CO ME TO THE CONCLUSION THAT THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH THE CRE DIT-WORTHINESS OF THE DONOR. THAT WHEN THE ONUS IS UPON THE ASSESSEE, IT IS FOR THE ASSESSEE TO LEAD THE EVIDENCE TO ESTABLISH THE CREDIT-WORTHINESS OF THE DONOR. IT IS NOT FOR THE AO TO COLLECT THE INFORMATION FOR ESTABLISHING THE CREDIT -WORTHINESS OF THE DONOR. HE FURTHER SUBMITTED THAT IF THE BANK WAS NOT GIVING T HE COPY OF NR SAVING ACCOUNT TO THE ASSESSEE, THE ASSESSEE SHOULD HAVE R EQUESTED THE DONOR TO OBTAIN SUCH INFORMATION AND THEN THE SAME COULD HAVE BEEN FURNISHED TO THE AO. HE THEREFORE SUBMITTED THAT THE ADDITION OF RS.3,00,00 0/- WAS RIGHTLY SUSTAINED BY THE CIT(A). 5. IN THE REJOINDER, IT IS SUBMITTED BY THE LEARNED COUNSEL THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD REQUESTED THE AO TO OBTAIN THE COPY OF NR SAVING ACCOUNT OF THE DONOR FROM THE BANK. H OWEVER, IF THE AO WAS NOT WILLING TO ACCEPT THE ABOVE REQUEST OF THE ASSESSEE , HE COULD HAVE INTIMATED THE ASSESSEE OF HIS DECISION SO THAT THE ASSESSEE COULD HAVE OBTAINED BANK ACCOUNT ITA.NO.4190/AHD/2007 -3- FROM THE DONOR. HE ALSO SUBMITTED THAT THE ASSESS EE IS PREPARED EVEN NOW TO SUBMIT SUCH DETAILS IF THE MATTER IS SET ASIDE TO T HE FILE OF THE AO. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AFTER CONSI DERING THE ARGUMENTS OF BOTH THE SIDES AND THE FACTS OF THE CASE, WE ARE OF OPIN ION THAT IT WOULD MEET ENDS OF JUSTICE IF THE MATTER IS SET ASIDE AND RESTORED BAC K TO THE FILE OF THE AO. WE ORDER ACCORDINGLY AND DIRECT THE AO TO ALLOW ADEQUA TE OPPORTUNITY TO THE ASSESSEE TO PRODUCE NECESSARY EVIDENCE FOR ESTABLIS HING THE CREDIT-WORTHINESS OF THE DONOR. THEREAFTER HE WILL RE-ADJUDICATE THE MATTER IN ACCORDANCE WITH LAW AFTER CONSIDERING THE EVIDENCE AS MAY BE FURNIS HED BEFORE HIM. 7. IN THE RESULT, THE ASSESSEES APPEAL IS DEEMED T O BE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 9 TH JULY, 2010. SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 09-07-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER AR, ITAT, AHMEDABAD