SMT BANARSI DEVI, Alwar V. ITO, Alwar

ITA 428/JPR/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54290 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-11-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 06-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KRANTI MEHTA
• Keywords: Gift
• Section: 148

Judgement Text

1 ITA 428-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER ITA NO. 428/JP/2011 ASSTT. YEAR : 1997-98. SMT. BANARSI DEVI, VS. THE INCOME-TAX OFFICER, C/O SHAKTI AGENCIES, WARD 2(2), KEDAL GANJ, ALWAR. ALWAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KRANTI MEHTA RESPONDENT BY : - DATE OF HEARING : 09.11.2011 DATE OF PRONOUNCEMENT : 18.11.2011 ORDER DATE OF ORDER : 18/11/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 1997-98. 2. THE ASSESSEE IS OBJECTING IN CONFIRMING THE REOP ENING OF THE ASSESSMENT UNDER SECTION 147/148 ON VARIOUS COUNTS AND OBJECTING IN CONFIRMING THE ADDITION OF RS. 2,00,000/- TREATING THE TWO GIFTS RECEIVED BY ASSES SEE AS INGENUINE. 3. THE AO ISSUED NOTICE UNDER SECTION 148 ON 11.3.2 005 FOR THE ASSESSMENT YEAR 1997-98. IN FACT, AN ADDITION OF RS. 4,50,000/- WA S MADE IN THE HANDS OF THE ASSESSEE FOR ASSESSMENT YEAR 2001-02. THIS ADDITION OF RS. 4,50, 000/- WAS MADE BY NOT ACCEPTING THE EXPLANATION THAT ASSESSEE HAS RECEIVED GIFTS OF RS. 4,50,000/- I.E. RS. 1,00,000/- EACH FROM 2 SHRI DEVENDER BHATNAGAR AND SHRI RAHUL BHATNAGAR DU RING THE ASSESSMENT YEAR 1996-97. RS. 1,00,000/- FROM SMT. HIRMANI BHATNAGAR DURING ASSESSMENT YEAR 1995-96 AND RS. 1,50,000/- FROM SHRI DEVENDER BHATNAGAR DURING ASSE SSMENT YEAR 1994-95. DURING THE SURVEY PROCEEDINGS UNDER SECTION 133A, IT WAS ADMIT TED THAT THIS GIFT WAS NOT GENUINE AND ACCORDINGLY THE SAME WAS ADMITTED. HOWEVER, WHILE FILING THE RETURN OF INCOME, THE SAME WAS NOT SHOWN. THEREFORE, THE AO MADE ADDITION OF RS. 4,50,000/- FOR ASSESSMENT YEAR 2001-02. 4. ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) WHO DELETED THE ADDITION. HOWEVER, HE MADE OBSERVATIONS THAT IF ANY ADDITION CAN BE MA DE THAT CAN BE MADE IN THE YEAR IN WHICH THE GIFT WAS RECEIVED. THEREFORE, IT WAS MENT IONED IN THE ORDER OF LD. CIT (A) THAT AO IS FREE TO INITIATE PROCEEDINGS UNDER SECTION 14 7/148. 5. DEPARTMENT FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL HAS ALSO CONFIRMED THE FINDINGS OF LD. CIT (A) 6. ON THE BASIS OF OBSERVATIONS OF LD. CIT (A) IN T HE APPEAL NO. 86/05-06 FOR ASSESSMENT YEAR 2001-02, THE AO ISSUED NOTICE UNDER SECTION 148 ON 11.3.2005 FOR ASSESSMENT YEAR 1997-98 AS STATED ABOVE. THEREAFTE R, ASSESSMENT WAS COMPLETED AND THE ADDITION OF RS. 2,00,000/- WAS MADE BY NOT ACCEPTIN G THE GENUINENESS OF THE GIFT RECEIVED BY THE ASSESSEE. THE LD. CIT (A) ALSO CONFIRMED TH E ACTION OF THE AO. THE LD. CIT (A) ALSO REJECTED THE LEGAL GROUND RAISED BEFORE HIM RE GARDING ISSUANCE OF NOTICE UNDER SECTION 148. 7. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 8. DETAILED SUBMISSIONS WERE ADVANCED BY LD. A/R. 9. ON THE OTHER HAND, THE LD. D/R HAS PLACED RELIAN CE ON THE ORDER OF LD. CIT (A). 3 10. AFTER CONSIDERING THE ORDER OF AO, LD. CIT (A) AND THE SUBMISSIONS OF THE ASSESSEE, I FIND THAT ASSESSEE DESERVES TO SUCCEED ON LEGAL ISSUE. IT IS SEEN THAT ASSESSEE RECEIVED GIFT OF RS. 1,00,000/- FROM SHRI DEVENDER BHATNAGAR VIDE DEMAND DRAFT NO. NDH 120020 DATED 20.4.1995. ANOTHER GIFT CHEQUE W AS RECEIVED ON 2.5.1995 FROM SHRI RAHUL BHATNAGAR, COPIES OF DD ARE PLACED AT PAGES 3 3 AND 39 OF THE PAPER BOOK RESPECTIVELY. SINCE THEY ARE NRI , DD WAS SENT THR OUGH PROPER BANKING CHANNEL. GIFT DEEDS WERE PARED ON 27 TH JULY, 1996 BETWEEN ASSESSEE AND SHRI DEVENDER BHAT NAGAR AND SHRI RAHUL BHATNAGAR. COPIES OF THESE GIFT DEEDS AR E PLACED AT PAGES 34 & 40 RESPECTIVELY. THESE GIFT DEEDS ARE DATED 27 TH JULY, 1996 PERTAINS TO ASSESSMENT YEAR 1997- 98. ON THE BASIS OF THESE GIFT DEEDS, THE AO ISSUE D NOTICE UNDER SECTION 148 ON THE ASSESSEE. THE AMOUNTS OF GIFTS WERE RECEIVED ON 20. 4.1994 AND 2.5.1995 WHICH PERTAINS TO ASSESSMENT YEAR 1996-97. THEREFORE, IF ANY ADDIT ION ON ACCOUNT OF GIFT RECEIVED CAN BE MADE, THAT CAN BE MADE FOR ASSESSMENT YEAR 1996-97 AND NOT IN THE YEAR 1997-98. THEREFORE, ISSUANCE OF NOTICE UNDER SECTION 148 FOR ASSESSMENT YEAR 1997-98 WAS FACTUALLY INCORRECT. THEREFORE, THE ASSESSMENT CANNOT BE SUS TAINED BECAUSE THE ASSESSEE HAD RECEIVED GIFTS DURING THE ASSESSMENT YEAR 1996-97 A ND NOT IN THE YEAR UNDER CONSIDERATION. THIS FACTUAL ASPECT HAS BEEN MENTIO NED IN THE ORIGINAL ORDER OF LD. CIT (A) AS WELL AS CLEAR FROM THE GIFT DEEDS PLACED IN THE RECORD. IN THESE GIFT DEEDS IT IS CLEARLY MENTIONED THAT THEY HAVE GIFTED A SUM OF RS. 1,00,0 00/- EACH IN THE ASSESSMENT YEAR 1996-97. THEREFORE, ANY ADVERSE INFERENCE CAN BE D RAWN FOR ASSESSMENT YEAR 1996-697 AND NOT FOR A.Y. 1997-98. IN VIEW OF THESE FACTS A ND CIRCUMSTANCES, I CANCEL THE ASSESSMENT COMPLETED BY THE AO. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. 4 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18 .11.2011. SD/- ( R.K . GUPTA ) JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SMT. BANARSI DEVI, ALWAR. THE ITO WARD 2(2), ALWAR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 428/JP/2011) BY ORDER, AR ITAT JAIPUR.