Smt. Suchita Gupta (Agarwal), J.P. Nagar V. ITO, Sambhal

ITA 4423/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6465 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 22-09-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 22-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: VENKETESH MOHAN CHOURASIA
• Keywords: Gift
• Section: 147; 68; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SM C - I , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 4423/DEL/2013 : ASSTT. YEAR : 200 2 - 0 3 SUCHITA GUPTA (AGARWAL), W/O SH. ANIL KUMAR, MOHALLA KATRA, DHANAURA, J.P. NAGAR VS INCOME TAX OFFICER, SAMBHAL (APPELLANT) (RESPONDENT) PAN NO. ABVPA2129G ASSESSEE BY : SH. VENKETESH MOHAN CHOURASIA, ADV. REVENUE BY : SH. F. R. MEENA , SR. DR ORDER THIS IS AN A PPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 18.03.2013 OF LD. CIT(A), BAREILLY . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE LD. CIT (APPEALS) ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL FILED BY THE ASSESSEE. 2. THE LD. CIT (A PPEALS) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE AGAINST ACTION OF THE A.O. IN ASSUMING JURISDICTION U/S 147. 3. THE LD. CIT (APPEALS) ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE WRITTEN S UBMISSIONS AND RELEVANT EVIDENCES FILED BY THE ASSESSEE WITH THE APPEAL PAPERS WHICH SUPPORTED THE STAND OF THE ASSESSEE AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER. 4. THE LD. CIT (APPEALS) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACTS OF THE CASE WITH THAT OF VARIOUS CASES ITA NO. 4423 /DEL /201 3 SUCHITA GUPTA 2 RELIED UPON BY THE ASSESSEE INCLUDING THAT OF MS MAYAWAT I (AFFIRMED BY DELHI HIGH COURT) WHEREIN THE ITAT HAD ACCEPTED THE STAND OF THE ASSESSEE THAT EVEN STRANGERS CAN GIVE GIFTS DESPITE THE FACT THAT MANY OF THE DON ORS TOOK LOANS AND BOUGHT THE PROPERTIES TO GIFT THE SAME TO MS. MAYAWATI. 5. THE LD. CIT (APPEALS) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT UNDER THE IDENTICAL FACTS, THE LD. C.I.T. (APPEALS), BAREILLY HAS ACCEPTED THE GIFTS IN THE C ASE OF SHRI DEEPAK KARNWAL IN APPEAL NO.262/IT0.1/NA]IBABAD.08 - 09 PERTAINING TO A.Y. 2002 - 03: 6. THE LD. CIT (APPEALS) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAVING NOT MAINTAINED BOOKS OF ACCOUNTS, THE PROVISIONS OF SECT ION 68 OR 69 RESORTED TO BY THE ASSESSING OFFICER WERE NOT APPLICABLE IN THE CASE OF THE ASSESSEE. 7. THE ORDER OF THE CIT (APPEALS) MAY BE CANCELLED AND THE ORDER OF THE ASSESSING OFFICER MAY BE MODIFIED BY DELETING THE ADDITION OF RS.2,00,000/ - . 8. ANY OTHER GROUND OF APPEAL WHICH MAY BE RAISED DURING THE COURSE OF HEARING OF APPEAL. 3. FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE GRIEVANCE OF THE ASSESSEE RELATES TO THE SUSTENANCE OF ADDITION OF RS.2,00,000/ - 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME ON 09.07.2002 DECLARING AN INCOME OF RS.87,131/ - WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON 20.03.2003. LATER ON, THE AO RECEIVED THE INFORMATION FROM D.I. (SYSTEM ) THAT THE ASSESSEE HAD RECEIVED ADJUSTMENT ENTRY FROM ITA NO. 4423 /DEL /201 3 SUCHITA GUPTA 3 ONE SH. SUBHASH CHAND FOR RS.2,00,000/ - ON 29.11.2001. ON THE BASIS OF SAID INFORMATION, THE AO REOPENED THE ASSESSMENT U/S 147 OF THE ACT BY ISSUING THE NOTICE U/S 148 OF THE ACT. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE BRANCH MANAGER OF STATE BANK OF INDIA VIDE HIS LETTER DATED 29.09.2008, SENT THE INFORMATION BY ENCLOSING PHOTOCOPY OF A CHEQUE ISSUED BY SH. SUBHASH GUPTA FROM HIS CURRENT ACCOUNT NO. 6943 FOR RS.2,00,300/ - DATED 29.11 .2001 WITH THE REMARK PLEASE ISSUE A DEMAND DRAFT IN FAVOUR OF SMT. SUCHITA GUPTA FOR RS.2,00,000/ - + RS. 300/ - (COMMISSION). HE HAD ALSO ENCLOSED THE PHOTOCOPY OF THE VOUCHER DATED 29.11.2001 DEPICTING THE FACT THAT A DEMAND DRAFT NO. 274953 IN FAVOUR OF SMT. SUCHITA GUPTA FOR RS.2,00,000/ - PAYABLE AT DHANAURA MANDI (U.P.) WAS MADE OUT OF CURRENT ACCOUNT NO. 6943 OF SH. SUBHASH GUPTA. THE AO POINTED OUT THAT SMT. SUCHITA GUPTA IN HER STATEMENT RECORDED BY THE AO, ADMITTED THAT SHE HAD RECEIVED A GIFT OF R S.2,00,000/ - FROM SH. AJAY BANSAL, SON OF SH. V. BANSAL, RESIDENT OF 9/1970, GALI NO. 4, KAILASH NAGAR, DELHI AND HAD FURTHER STATED THAT THE GIFT WAS RECEIVED ON DEEPAWALI FESTIVAL. SHE ALSO STATED THAT SHE WAS NOT IN A POSITION TO GIVE INFORMATION ABOUT THE PRESENT ADDRESS OF THE DONOR, SINCE THE TIME HAD PASSED. SHE ALSO STATED THAT SHE DID NOT KNOW SH. SUBHASH GUPTA AND THAT DRAFT IN QUESTION HAD BEEN GIVEN TO HER BY SH. AJAY BANSAL. THE AO DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND MADE THE ADDITION IN THE HANDS OF THE ASSESSEE BY CONSIDERING THE GIFT AS NON - GENUINE . ITA NO. 4423 /DEL /201 3 SUCHITA GUPTA 4 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE GIFT WAS CONFIRMED BY THE DONOR AND THAT SHOULD HAVE BEEN SUFFICIENT FOR THE AO . THE LD. CIT(A) HOWEVER, DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND OBSERVED THAT NOT ONLY THE TRANSACTION WAS DOUBTFUL BUT THE ASSESSEE HAD NOT BEEN ABLE TO PROVE THE CRITICAL INGREDIENT OF LOVE AND AFFECTION EXISTING BETWEEN DONOR AND DO NEE TO ESTABLISH THAT THE TRANSACTION W AS A GENUINE GIFT. HE, THEREFORE, CONFIRMED THE ADDITION MADE BY THE AO. 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT A GIFT OF RS.2,00,000/ - WAS RECEIVED BY THE ASSESSEE FROM A NATIVE PLACE CLOSE FAMILY FRIEND OF HER HUSBAND SH. ANIL KUMAR FROM AND IN ORDER TO PROVE THE GENUINENESS OF TRANSACTION , FOLLOWING DOCUMENTS WERE FURNISHED BEFORE THE AO: I. COPY OF PAN CARD OF THE DONOR, AVAILABLE AT PB PG NO. 8 II. COPY OF ITR FOR 1999 - 2000,2000 - 01 AND 2001 - 02 OF THE DONOR, AVAILABLE AT PB PG NO. 9 - 11 III. COPY OF BALANCE SHEET OF THE DONOR, AVAILABLE AT PB PG NO. 12 IV. COPY OF COMPUTATION OF INCOME OF THE DONOR, AVAILABLE AT PB PG NO. 13 V. COPY OF NOTORISED AFFIDAVIT OF THE DONOR, AVAILABLE AT PB PG NO. 14 - 15 AND VI. COPY OF GIFT DEED OF THE DONOR, AVAILABLE AT PB PG NO.16 - 17 7. IT WAS FURTHER SUBMITTED THAT THE AO TREATED THE GENUINE GIFT AS BOGUS AND MADE THE ARBITRAR Y ADDITION. IT WAS ALSO SUBMITTED THAT THE ITA NO. 4423 /DEL /201 3 SUCHITA GUPTA 5 ASSESSEE HAD GIVEN CONFIRMATION FROM THE DONOR WHOSE IDENTITY COULD NOT BE DOUBTED , THE TRANSACTION HAD ROUTED THROUGH BANKING CHANNELS AND WHEN ALL THE THINGS WERE PRODUCED, SOMETHING MORE HAD TO BE BROUGHT ON RE CORD THAN MERE SUSPICION TO MAKE OUT THE CASE OF BOGUS GIFTS. IT WAS STATED THAT THE GIFT WAS RECEIVED BY THE ASSESSEE ON 29.11.2001 WHICH WAS EVIDENT FROM PARA 2 AT PAGE 2 OF THE ASSESSMENT ORDER. THEREFORE, THE ADDITION MADE BY THE AO AND SUSTAINED BY TH E LD. CIT(A) WAS NOT JUSTIFIED. 8. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 9. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN TH E PRESENT CASE, IT APPEARS THAT THE ASSESSEE FURNISHED THE COPY OF PAN CARD OF DONOR SH. AJAY BANSAL, COPY OF HIS INCOME TAX RETURN FOR THE ASSESSMENT YEARS 1999 - 2000 AND 2001 - 02, COPY OF BALANCE SHEET OF THE DONOR AND HIS COMPUTATION OF INCOME WHICH ARE P LACED AT PAGE NOS. 8 TO 13 OF THE ASSESSEE S PAPER BOOK. SHE ALSO FURNISHED NOTARIZED AFFIDAVIT OF THE DONOR AND GIFT DEED, COPIES OF WHICH ARE PLACED AT PAGE NOS. 14 TO 17 OF THE ASSESSEE S PAPER BOOK. IN THE INSTANT CASE, THE BANK ALSO CONFIRMED THAT THE DRAFT WAS ISSUED IN FAVOUR OF THE ASSESSEE AND THE DONOR ALSO STATED THROUGH AFFIDAVIT THAT GIFT WAS GIVEN TO THE ASSESSEE VIDE DRAF T NO. 274953 DATED 29.11.2001 DRAWN ON BANK OF PATIALA. THE SAID FACT WAS ITA NO. 4423 /DEL /201 3 SUCHITA GUPTA 6 ALSO AFFIRMED BY THE BANK MANAGER. IN THE PRESENT CASE, THE IDENTITY OF THE DONOR WAS NOT DOUBTED AND NO ADVE RSE REMARK WAS MADE ON THE DOCUMENTS FURNISHED BY THE ASSESSEE I.E. COPY OF INCOME TAX RETURN & CONFIRMATION OF THE DONOR, HIS BALANCE SHEET AND COMPUTATION OF INCOME. IT, THEREFORE, APPEARS THAT THE ADDITION WAS MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) ONLY ON THE BASIS OF SURMISES. THEREFORE, THE SAME IS DELETED. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORDER PRON OUNCED IN THE CO URT ON 16 /12 /2016 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 16 /12 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDEN T 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR