ITO, New Delhi V. Smt. Shimla Devi, New Delhi

ITA 4511/DEL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3760 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 23-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SARAS KUMAR SENIOR
• Keywords: Unexplained cash credit; Gift; Set aside
• Section: 64; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4511/DEL./2016 (ASSESSMENT YEAR : 2012-13) ITO, WARD 41 (3), VS. SMT. SHIMLA DEVI, NEW DELHI. C 29, NEW MULTAN NAGAR, NEW DELHI 110 056. (PAN : AFYPD6835R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANDEEP JAIN, CA REVENUE BY : SHRI SARAS KUMAR, SENIOR DR DATE OF HEARING : 27.11.2019 DATE OF ORDER : 29.11.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, ITO, WARD 41 (3), NEW DELHI (HEREINAFTE R REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 16.06.2016 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-14, NEW DELHI QUA THE ASSESSMENT YEAR 2012-13 ON THE GROUNDS INTER ALIA T HAT:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER (AO) ON ACCOUNT OF UNEXPLAINED CASH CREDITS U/S 68 OF THE A CT TREATING AS BOGUS GIFTS AMOUNTING TO RS.1,60,75,000 ITA NO.4511/DEL./2016 2 WITHOUT PROPERLY VERIFYING THE BANK STATEMENTS OF T HE DONORS EVEN THOUGH THE ASSESSEE COULD NOT PROVE THE NEXUS OF GIFT RECEIPTS WITH SUPPORTING DOCUMENTS DU RING THE ASSESSMENT PROCEEDINGS 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING TH E ADDITION MADE BY THE ASSESSING OFFICER (AO) TREATIN G AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES AMOUNTING TO RS.27,50,000/- WITHOUT APPRECIATING TH E FINDINGS OF THE ASSESSING OFFICER. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE ISSUE AT HAND ARE : FROM THE STATEMENT OF AFFAIRS, ASSESSING OFFICER (AO) NOTICED THAT THE ASSESSEE HAS RECEIVED GIFT OF RS.1,06,50,000, RS.11,50,000/- & RS.42,75,000/- FROM SHRI DHARAMPAL , SHRI AJAY LAKRA & SHRI NAVEEEN KUMAR LAKRA RESPECTIVELY. ON FAILURE OF THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF TH E CASH DEPOSIT AND TO PROVE THE IDENTITY, CREDITWORTHINESS OF THE PARTIES AND GENUINENESS OF THE TRANSACTION, AO MADE ADDITION OF RS.1,60,75,000/-. AO ALSO MADE ADDITION OF RS.27,5 0,000/- BEING THE INCOME FROM OTHER SOURCES BY DECLINING THE CONT ENTION OF THE ASSESSEE THAT THIS INCOME IS AGRICULTURAL RECEIPT A ND THEREBY ASSESSED THE TOTAL INCOME AT RS.1,92,90,840/-. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION BY ALLOWIN G THE APPEAL. ITA NO.4511/DEL./2016 3 FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE T HE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. GROUND NO.1 5. UNDISPUTEDLY, ASSESSEE HAS RECEIVED AN AMOUNT OF RS.1,06,50,000, RS.11,50,000/- & RS.42,75,000/- FRO M SHRI DHARAMPAL, SHRI AJAY LAKRA & SHRI NAVEEEN KUMAR LAK RA RESPECTIVELY AS A GIFT. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAD FILED COPY OF VOTER I-CARD, PAN AND INCOME-TAX RETU RNS OF THE DONORS VIDE REPLY DATED 26.03.2015 BEFORE THE AO. 6. WE ARE OF THE CONSIDERED VIEW THAT WHEN ASSESSEE HAS PRODUCED PAN, COPIES OF INCOME-TAX RETURNS AND VOTE R I-CARD OF THE DONORS DURING THE ASSESSMENT PROCEEDINGS AS WELL AS BEFORE THE APPELLATE PROCEEDINGS, THERE IS NO QUESTION OF DISP UTING THEIR IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE T RANSACTIONS PARTICULARLY WHEN DONORS ARE HUSBAND AND SONS OF TH E ASSESSEE. PERUSAL OF THE ASSESSMENT ORDER OF DHARAMPAL, DONOR FOR AY 2012- 13, THE YEAR UNDER ASSESSMENT, AND COPY OF ORDER DA TED 16.06.2016 PASSED BY THE LD. CIT (A) FOR AY 2012-13 QUA DHARAM PAL, SOURCE ITA NO.4511/DEL./2016 4 OF HIS INCOME AND CREDITWORTHINESS HAS BEEN DULY AC CEPTED. IN CASE OF SON OF THE ASSESSEE, AO HIMSELF HAS ACCEPTED HIS CREDITWORTHINESS. LD. CIT (A), AFTER APPRECIATING ALL THESE FACTS AND BY RELYING UPON THE DECISION OF THE HONBLE DEL HI HIGH COURT IN THE CASE OF CIT VS. RAMESH SURI (2015) 57 TAXMANN.COM 84 (DELHI), DELETED THE ADDITION. 7. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SURESH KUMAR KAKAR IN ITA 128/2009 ORDER DATED 27.04.2010 ALSO DECIDED THE IDENTICAL ISSUE BY RETURNING FOLLOWING FINDINGS :- 3. INSOFAR AS THE IDENTITY IS CONCERNED, THA T IS AN ADMITTED POSITION THAT THE GIFTS WERE MADE BY THE MOTHER TO THE SON. WITH REGARD TO THE CREDITWORTHINESS, THE ASSESSEE HAS BEEN ABLE TO DISCHARGE THE ONUS CAST UPON HIM BY FURNISHING THE BANK STATEMENT OF HIS MOTHER (DONOR)AS AL SO THE CONFIRMATION CERTIFICATE FROM THE MOTHER CONFIRMING THE SAID GIFTS. ONCE THE ASSESSEE HAS DISCHARGED THE PRIMAR Y ONUS, WHICH WAS CAST UPON THE ASSESSEE, IT WAS INCUMBENT UPO N THE ASSESSING OFFICER TO PROVE ON THE BASIS OF A COGENT EVIDENCE THAT THE TRANSACTION WAS NOT GENUINE. THERE IS NO SUCH EVIDENCE FORTHCOMING. WE FIND THAT THE CONC LUSIONS OF THE ASSESSING OFFICER AND THE COMMISSIONER OF INCOM E-TAX (APPEALS) WITH REGARD TO THE GENUINENESS OF T HE TRANSACTIONS ARE MERELY CONJECTURAL AND ARE BASED ON SURMIS ES AND ASSUMPTIONS. SUCH CONJECTURES AND ASSUMPTIONS CANNOT TAKE THE PLACE OF PROOF, ONCE THE ASSESSEE HAS DIS CHARGED THE PRIMARY BURDEN WHICH HAD BEEN CAST UPON HIM. 8. SO, WE FIND NO ILLEGALITY OR PERVERSITY IN THE D ELETION OF ADDITION MADE BY THE AO ON ACCOUNT OF BOGUS GIFTS, HENCE GROUND NO.1 IS DETERMINED AGAINST THE REVENUE. ITA NO.4511/DEL./2016 5 GROUND NO.2 9. ASSESSEE CLAIMED AN AMOUNT OF RS.27,50,000/- AS AGRICULTURAL INCOME HAVING BEEN RECEIVED FROM LOV K USH AND ANAND TO THE TUNE OF RS.17,50,000/- AND RS.10,00,00 0/- RESPECTIVELY AS RENT FOR CULTIVATING THE LAND MEASU RING 64 BIGHAS OWNED BY THE ASSESSEE, IT HAS BEEN TREATED AS INCOM E FROM OTHER SOURCES BY THE AO ON THE GROUND THAT STATEMENT OF L OV KUSH AND ANAND SHOWS THAT THE RECEIPT IS NOT AN AGRICULTURAL RECEIPT BUT INCOME FROM OTHER SOURCES. 10. LD. AR FOR THE ASSESSEE CONTENDED INTER ALIA TH AT IN THE PRECEDING YEARS, INCOME FROM THE LAND IN QUESTION H AS BEEN ACCEPTED AS AGRICULTURAL INCOME BY THE REVENUE; THA T OWNERSHIP OF THE LAND AND ITS CULTIVATORS ARE NOT DISPUTED AND T HAT THE AO PROCEEDED TO REACH THE CONCLUSION ONLY ON THE BASIS OF STATEMENT OF LOV KUSH AND ANAND BUT HAS NOT PREFERRED TO RECORD THE STATEMENT OF RISHI KUMAR NOR THE AO HAS PREFERRED TO LOOK INT O THE REVENUE RECORD. 11. PERUSAL OF THE STATEMENT OF LOV KUSH AND ANAND, WHEN READ IN ENTIRETY, GOES TO PROVE THAT THE LAND IN QUESTIO N REMAINED UNDER CULTIVATION WITH THEM AND MERELY ON THE BASIS OF HY PER- TECHNICALITIES, THE INCOME HAS BEEN TREATED FROM OT HER SOURCES. MOREOVER, WHEN OWNERSHIP OF THE LAND AND ITS CULTIV ATION BY LOV ITA NO.4511/DEL./2016 6 KUSH, RISHI KUMAR AND ANAND IS NOT DISPUTED AND IT IS PROVED FROM THE REVENUE RECORD I.E. KHASRA GIRDWARI IN FORM P-4 AVAILABLE AT PAGE 1 OF THE PAPER BOOK AND DETAIL OF AGRICULTURAL ACTIVITIES HAVE BEEN DULY GIVEN BY THE ASSESSEE AT PAGE 2 OF THE PA PER BOOK SUPPORTED WITH RECEIPT OF PAYMENT MADE BY CULTIVATO RS IN FAVOUR OF THE ASSESSEE, THE ENTIRE ADDITION MADE BY THE AO IS CONJECTURAL WHICH IS NOT SUSTAINABLE ON THE FACE OF FACTS AND D OCUMENTS ON RECORD. IN THESE CIRCUMSTANCES, LD. CIT (A) HAS RI GHTLY DELETED THE ADDITION MADE BY THE AO BY THRASHING THE FACTS IN T HE LIGHT OF THE DECISION RENDERED BY THE TRIBUNAL, HENCE WE FIND NO ILLEGALITY OR PERVERSITY IN THE DELETION OF ADDITION MADE BY THE LD. CIT (A), HENCE GROUND NO.2 IS ALSO DETERMINED AGAINST THE RE VENUE. 12. RESULTANTLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 29 TH DAY OF NOVEMBER, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 29 TH DAY OF NOVEMBER , 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-14, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.