DR. PRADEEP P. SHINDE, Nagpur V. ITO-WARD-5(3), Nagpur

ITA 447/NAG/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1565 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 19-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: A G PIMPARKHEDE
• Keywords: Gift; Corroborative evidences

Judgement Text

1 ITA NO. 447/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 447 /NAG/201 3 ASSESSMENT YEAR : 20 08 - 09 . DR. PRADEEP P. SHINDE, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 5(3), NAGPUR. PANANLPS1295F APPELLANT. RESPONDENT. APPELLANT BY : SHRI A.G. PIMPARKHEDE RESPONDENT BY : SHRI NARENDRA KANE. DATE OF HEARING : 26 - 10 - 2015. DATE OF PRONOUNCEMENT : 4 TH DEC., 2015. O R D E R PER SHRI SHAMIN YAHYA, A.M . THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 16 - 09 - 2013 AND PERTAINS TO ASSESSMENT YEAR 2008 - 09. THE ISSUE RAISED IS THAT THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.15,32,500/ - AS INCO ME FROM UNDISCLOSED SOURCES. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 1,33,159/ - WAS FILED ON 18/08/2008. AS PER THE AIR INFORMATION RECEIVED BY THE AO, THE APPELLANT HAD DEPOSITED CASH AMOUNTING TO RS.15, 32,500/ - IN ONE SAVING BANK ACCOUNT WITH TIRUPATI URBAN CO - OPERATIVE BANK LTD. IT WAS EXPLAINED BY THE APPELLANT THAT HE HAD RECEIVED A GIFT OF RS.15,00,000/ - FROM HIS FATHER, SHRI PARASHURAM SHINDE 2 ITA NO. 447/NAG/2013 DURING THE YEAR UNDER CONSIDERATION ON VARIOUS DATES, AND PRODUCED THE GIFT DEED PURPORTED TO HAVE SIGNED BY HIS FATHER. THE AO ASKED THE APPELLANT TO PRODUCE HIS FATHER ALONG WITH EVIDENCES TO ESTABLISH THE CREDITWORTHINESS OF THE DONOR. IN RESPONSE TO THIS THE APPELLANT FILED A LETTER DATED 09 - 11 - 2010 STATING THAT HIS FATHER WAS UNWELL AND UNDER TREATMENT FOR THE NEXT THREE MONTHS AT INDORE (MADHYA PRADESH). THE APPELLANT ALSO ENCLOSED MEDICAL CERTIFICATE TO ESTABLISH HIS CONTENTION. THE AO, HOWEVER, ISSUED SUMMONS TO HIS FATHER REQUESTING ATTENDANCE ON 07 - 12 - 1010. WHILE THERE WAS NO ATTENDANCE ON THE SCHEDULED DATE, THE APPELLANT ATTENDED ON 18 - 12 - 2010 AND STATED THAT HIS FATHER SUFFERED A CARDIAC ARREST ON 30 - 11 - 2010 AND IS STILL IN INDORE AND ALSO FILED A COPY OF AGREEMENT DATED 25 - 06 - 2007 TO ESTABLISH THE CREDITWORTHINESS OF SHRI PARASHURAM K. SHINDE WHEREIN IT WAS STATED THAT SHRI PARSHURAM K. SHINDE RECEIVED CONSIDERATION AMOUNTING TO RS.22 LACS IN RESPECT OF HIS PROPERTY OF 3.75 HECTORS WHICH WAS PROPOSED TO BE SOLD TO SHRI AVINASH S. KHAIRKAR IN KALMES HWAR. THE AO PERUSED THE SAID COPY OF AGREEMENT AND IT WAS SEEN THAT THE PAYMENTS WERE SCHEDULED ON VARIOUS DATES AND ALL PAYMENTS WERE IN CASH. IT WAS FURTHER NOTED THAT THE SAID DOCUMENT WAS NEITHER REGISTERED NOR NOTARIZED. 3. THE AO, THEREFORE, ISSUED A LETTER TO THE APPELLANT TO PRODUCE THE PERSON WHO HAD ENTERED INTO AGREEMENT WITH THE FATHER OF THE APPELLANT FOR PURCHASE OF HIS FATHERS AGRICULTURAL LAND SO AS TO ESTABLISH THE GENUINENESS OF THE AGREEMENT AND TO ESTABLISH THAT THE CASH HAD ACTUALLY BEEN RECEIVED BY THE APPELLANTS FATHER. THE AO ALSO ISSUED SUMMONS TO EXAMINE SHRI AVINASH KHAIRKAR WHOSE NAME WAS MENTIONED IN THE COPY OF THE AGREEMENT TO SALE DATED 25 - 06 - 2007 WHEREIN IT WAS INFORMED THAT THE SAID SHRI AVINASH KHAIRKAR EXPIRED IN JANUA RY, 2008 AND HIS LEGAL H A IR MRS. ANITA AVINASH KHAIRKAR, A DOCTOR, ATTENDED IN RESPONSE TO THE SUMMONS BEFORE THE AO. IN THE STATEMENT RECORDED ON OATH, MRS. ANITA AVINASH KHAIRKARED DENIED THAT HER LATE HUSBAND ENTERED INTO ANY AGREEMENT TO SALE WITH SHR I PARSHURAM K. SHINDE AND ALSO DENIED PAYMENT OF 3 ITA NO. 447/NAG/2013 CASH BY HER LATE HUSBAND TO SHRI PARSHURAM SHINDE IN PURSUANCE OF SUCH PURPORTED AGREEMENT. SHE ALSO STATED THAT THE SIGNATURE O N COPY OF AGREEMENT DID NOT BELONG TO HER LATE HUSBAND AND ALSO FURNISHED COPY OF PAN CARD OF HER HUSBAND TO EVIDENCE THE SAME. THE AO OFFERED AN OPPORTUNITY TO CROSS EXAMINE MRS. ANITA AVINASH KHAIRKAR WHICH WAS NOT TAKEN UP BY THE APPELLANT. TAKING INTO CONSIDERATION THE ABOVE AND THE CAPACITY OF THE CREDITOR, HE SUBSEQUENTLY ADDED THE SAID AMOUNT OF RS.15,32,500/ - TO THE INCOME OF THE APPELLANT. 4 . UPON ASSESSEES APPEAL, LEARNED CIT(APPEALS) CONFIRMED THE ADDITION HOLDING AS UNDER : I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF THE APPELLANT. THE AMOUNT OF RS.15,32, 000/ - WAS DEPOSITED IN BANK ACCOUNT OF THE APPELLANT. IT WAS THE APPELLANTS CONTENTION THAT THE SAID AMOUNT WAS A GIFT RECEI VED FROM HIS FATHER DURING THE PREVIOUS YEAR. IN SUCH A SITUATION THE ONUS WAS ON THE APPELLANT TO ESTABLISH THE IDENTITY OF THE DO NOR, THE CAPACITY OF THE DONOR TO MAKE SUCH A GIFT AND TO ESTABLISH THE GENUINENESS OF THE TRANSACTION. THE APPELLANT COULD NOT PRODUCE HIS FATHER BEFORE THE LD.A.O. IN VIEW OF THE ASCERTION MADE BEFORE THE LD. AO THAT HE WAS UNWELL. TO ESTABLISH CREDITWO RTHINESS OF THE DONOR, THE APPELLANT SUBMITTED ONE AGREEMENT TO SALE WHEREIN HIS FATHER WAS SUPPOSED TO HAVE RECEIVED AN AMOUNT OF RS. 22 LACS IN CASH FOR SALE OF ONE PROPERTY. THE SAID DOCUMENT SUPPLIED CONTAINED CERTAIN GLARING SHORT COMINGS. THE DOCUMEN T WAS NOT IN ORIGINAL, IT WAS NOT REGISTERED AND IT WAS NOT NOTARIZED AND THE ENTIRE PAYMENTS OF RS. 22 LACS WERE STATED TO BE IN CASH. IT WAS ONLY LOGICAL THEREFORE THAT THE LD.A.O. ASKED THE APPELLANT TO PRODUCE SHRI AVINASH KHAIRKAR WHO HAD OSTENSIBLY PURCHASED THE SAID PROPERTY. THE LD. A.O. FAILED TO DO SO. THE APPELLANT THEN SUMMONED SHRI AVINASH KHAIRKAR AND HIS LE G AL HAIR DR. ANITA KHAIRKAR ATTENDED BEFORE THE LD.A.O. AND TOTALLY DENIED THE EXISTENCE OF ANY SUCH AGREEMENT OR ANY PAYMENT OF CASH. S HE ALSO DENIED HAT THE SIGNATURE ON THE DOCUMENT WAS THAT OF HER HUSBAND. IT IS ALSO CRUCIAL TO NOTE THAT IN SPITE OF REPEATED OPPORTUNITIES, THE APPELLANT NEVER PRODUCED THE ORIGINAL AGREEMENT TO SALE BEFORE THE LD. A.O. THUS, THE LD. A.O. EFFECTIVELY PRO VED THAT THE ENTIRE STORY MADE UP TO EXPLAIN THE SOURCE OF CREDIT IN HIS BOOKS OF ACCOUNT WAS BOGUS. HERE IT IS IMPORTANT TO NOTE THAT THE 4 ITA NO. 447/NAG/2013 APPELLANTS FATHER DOES NOT HAVE PAN CARD AND HAS NOT BEEN ASSESSED TO TAX AND IS ABOVE 75 YEARS OLD AND RETIRED MILI TARY PE R SON LIVING IN REMOTE RURAL AREA. HE IS HAVING SMALL PIECE OF AGRICULTURAL LAND. THUS, THE APPELLANT NEVER ESTABLISHED THE CREDITWORTHINESS OF THE DONOR. IN V IEW OF THE ABOVE FACTS, THE ADDITION MADE OF RS.15,32,000/ - BEING INCOME FROM UNDISCLOSED SOURCE MADE BY THE LD.A.O. IS HEREBY CONFIRMED. THEREFORE THIS GROUND IS DISMISSED. 5 . AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE US. 6 . WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS GIVEN ALL THE NECESSARY EVIDENCES TO SUBSTANTIATE THE ISSUE OF GIFT. HE SUBMITTED THAT THE DONOR BEING ASSESSEES FATHER WAS NOT WELL WHEN HE AO ASKED FOR HIS PRESENCE AND HE SUBSEQUENTLY DIED. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE COPY OF AGREEMENT TO SALE WHICH WAS PRODUCED BY THE ASSESSEE BUT WAS NOT BELIEVED BY THE AO ON THE GROUND THAT LEGAL HAIR OF SHRI AVINASH KHAIRKAR, NAMELY, DR. ANITA KHAIRKAR ATTENDED BEFORE THE AO AND TOTALLY DENIED THE EXISTENCE OF ANY SUCH AGREEMENT OR ANY PA Y MENT OF CASH. THAT SHE ALSO DENIED THAT THE DESCRIPTION ON THE DOCUMENT WAS NOT OF SHRI AVINASH KHAIRKAR. LEARNED COUNSEL PLEADED THAT THE ASSESSEE SHOULD BE GRANTED AN OPPORTUNITY TO CROSS EXAMINE SMT. ANITA KHAIRKAR AND HENCE PLEADED THAT THE MATTER SHOULD BE REMITTED TO THE AO TO ALLOW AN OPPORTUNITY TO CROSS EXAMINE SMT. ANITA KHAIRKAR. 7 . PER CONTRA LEARNED D.R. STRONGLY RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE SAME SHOULD BE UPHELD. 8 . UPON CAREFUL CONSIDERATION, WE FIND THAT THE AO HAS FOUND ENTRY OF UNDISCLOSED AMOUNT IN ASSESSEES BANK ACCOUNT. WHEN THIS WAS DISCOVERED, THE ASS ESSEE HAS TRIED TO PROVE THIS BY WAY OF GIFT FROM HIS FATHER. THE GIFT FROM FATHER HAS ALSO BEEN SAID TO BE OUT OF SOURCE OF AMOUNT RECEIVED ON ACCOUNT OF AGREEMENT OF SALE. THE ORIGINAL OF THE SAID A GREEMENT WAS NEVER PRODUCED. THE AGREEMENT WAS NOT FI NALLY EXECUTED. IN SUCH CIRCUMSTANCES, THE AUTHORITIES 5 ITA NO. 447/NAG/2013 BELOW ARE CORRECT IN HOLDING THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF CREDIT IN HIS BOOKS OF ACCOUNT. THAT THE AMOUNT WAS RECEIVED BY THE FATHER ON THE BASIS OF AN AGREEMENT OF SALE WHICH WAS NOT EXECUTED AS THE PURCHASER REPORTEDLY DIED AFTER PAYING THE AMOUNT TO THE ASSESSEE HAS NO SUPPORTING EVIDENCE. THE LEGAL HEIR OF THE PURPORTED PURCHASER HAD TOTALLY DENIED THE EXISTENCE OF ANY SUCH TRANSACTION. IT IS CLEARLY MENTIONED IN THE ASSES SMENT ORDER THAT THE AO HAS OFFERED THE ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE THE SAID LEGAL HEIR WHICH THE ASSESSEE HAS DECLINED TO TAKE. HENCE ALL THE EVIDENCES ARE CLEARLY AGAINST THE ASSESSEE. LEARNED COUNSEL OF THE ASSESSEES PLEA THAT ONCE AGAIN T HE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO CROSS EXAMINE THE LEGAL HEIR DR. ANITA KHAIRKAR IS TOTALLY UNSUSTAINABLE. ACCORDINGLY WE UPHOLD THE ORDER OF LEARNED CIT(APPEALS). 9 . IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF DEC., 2015. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 4 TH DEC., 2015. 6 ITA NO. 447/NAG/2013 COPY FORWARDED TO : 1. DR. PRADEEP P. SHINDE, PLOT NO. 41, DHAMBHARE LAYOUT, BEHIND BANK OF INDIA, TRIMURTI NAGAR, NAGPUR - 440022. 2. I.T.O., WARD - 5 ( 3 ), NAGPUR. 3 C.I.T. NAGPUR. 4. CIT(APPEALS) - II, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE.