ITO, New Delhi V. Shri Azhar Ali Khan, New Delhi

ITA 4518/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91120 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-04-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 30-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Keywords: Gift; Source of fund
• Section: 69C; 143(3); 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER & SHRI A.T.VARKEY, JUDICIAL MEMBER ITA NO. 4518/DEL/2013 ASSESSMENT YEAR: 2006-07 ITO VS. AZHAR ALI KHAN WARD 41(1) 95, JOHRI FARM NOOR NAGAR EXTN., O KHLA NEW DELHI NEW DELHI ADNPK6765C (APPELLANT) (RESPONDENT) C.O. NO. 402DEL/2013 (IN ITA NO. 4518/DEL/2013) AZHAR ALI KHAN VS. ITO 95, JOHRI FARM WARD 41(1) NOOR NAGAR EXTN., OKHLA NEW DELHI NEW DELHI ADNPK6765C (APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI B.R.R.KUMAR, SR . D.R. RESPONDENT BY : SHRI K.SAMPATH, ADV. DATE OF HEARING : 22.04.2015 DATE OF PRONOUNCEMENT : 05.06.2015 ORDER . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 2 PER N.K.SAINI, A.M : THESE CROSS APPEALS BY THE DEPARTMENT AND THE ASSE SSEE ARE DIRECTED AGAINST THE ORDER DATED 02/05/2013 OF CIT(A) XXX, NEW DELHI. 2. IN THE APPEAL OF THE DEPARTMENT IN ITA NO. 451 8/DEL/2013. ONLY EFFECTIVE GROUND HAS BEEN RAISED IN THIS APPEAL REA D AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN : DELETING THE FOLLOWING ADDITIONS OF RS. 39,00,000/- ON ESTIMATE BASIS BY IGNORING THE EVIDENCE GIVEN BY THE ASSESSEE BEFORE THE WOMEN CELL, POLICE AUTHORITIES AND STATEMENT OF CLAIMS THAT HE HAS SPENT RS. 51 LAKHS ON ACCOUNT OF MARRIAGE OF HIS DAUGHTER. 3. IN THE CROSS OBJECTION NO. 402/DEL./2013 THE ASSESSEE HAS RAISED THE FOLLOWING GROUND:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) ERRED IN SUSTAINING AN ADDITION OF RS. 1 LAKH IN TH E ASSESSED INCOME WHICH BEING ARBITRARY AND SUPERFLUOUS MUST B E DELETED. 4. FROM THE ABOVE GROUNDS IT WOULD BE CLEAR T HAT THE ONLY ISSUE AGITATED BY BOTH THE PARTIES RELATES TO THE DELETIO N / SUSTENANCE OF THE ADDITION MADE BY THE AO ON ACCOUNT OF EXPENSES RELA TING TO MARRIAGE OF THE DAUGHTER OF THE ASSESSEE. 5. FACTS OF THE CASE IN BRIEF ARE THAT THE AO RE CEIVED TAX EVASION PETITION (TEP) ALONG WITH LIST OF EXPENDITURE INCU RRED BY THE ASSESSEE ON THE MARRIAGE OF HIS DAUGHTER HELD IN NOVEMBER 2005. SINCE THERE WAS EVIDENCE IN THE SHAPE OF STATEMENT GIVEN BY THE ASS ESSEE AND HIS . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 3 DAUGHTER BEFORE THE WOMEN CELL, DELHI POLICE WHEREI N EXPENDITURE INCURRED ON THE OCCASION OF MARRIAGE WAS MENTIONED AT RS. 50, 62,370/-. THEREFORE THE AO AFTER RECORDING THE REASONS REOPEN ED THE ASSESSMENT AND ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT, 19 61 (HEREINAFTER REFERRED AS THE ACT). IN RESPONSE TO THE SAID NOTI CE, THE ASSESSEE SUBMITTED THAT THE RETURN OF INCOME ALREADY FILED O N 2.9.2009 MAY BE TREATED AS FILED IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT. 6. THE AO DURING THE COURSE OF ASSESSMENT PROCEED INGS ASKED THE ASSESSEE TO FILE VARIOUS DETAILS INCLUDING DETAILS OF AMOUNTS SPENT ON THE MARRIAGE OF HIS DAUGHTER ALONG WITH SOURCE OF FUNDS . THE ASSESSEE VIDE LETTER DATED 31.10.2011 SUBMITTED AS UNDER :- THAT THE ASSESSEE HAD DONE MARRIAGE OF HIS DAU GHTER MOHSINA KHAN IN NOVEMBER, 2005 BUT HER RELATIONS WI TH HER HUSBAND AND IN-LAWS GOT WITH CRIME BRANCH AND HIS D AUGHTER GAVE LIST OF ARTICLES GIVEN AT THE TIME OF MARRIAGE ALONG WITH JEWELLERY ETC. BEING HER FATHER, THE ASSESSEE HAD T O JOIN HER IN HER FIGHT AND IN ANGUISH GAVE LIST OF ITEMS GIVEN, EXPENDITURE INCURRED ON MARRIAGE ETC. THIS WAS STATED BY HIM OF AN AMOUNT OF RS. 51 LAKHS. THIS WAS MANIPULATED INFLATED ONE AS GUIDED BY THE LAWYERS. THE ASSESSEE BEING GOVT. SERVANT HAD N O CAPACITY TO SPEND THAT MUCH. THE MARRIAGE WAS SOLEMNIZED AT SHEHNAI BANQUET HALL, ASIF ALI ROAD, N. DELHI. THE MARRIAGE WAS ATTENDED BY 200 PERSONS AND WAS A SIMPLE OCCASIONS. AN AMOUNT OF RS. 60 TO 70,000/- WAS SPENT ON THE FUNCT ION. THE ASSESSEE GAVE GOLD JEWELLERY WEIGHING 20 TO 22 TOLA S TO HER AND IN LAWS. THE SAID JEWELLERY WAS PURCHASED BY HIM MU CH EARLIER FROM TIME TO TIME AS AND WHEN HE SAVED MONEY FROM H IS SALARY. COPIES OF SOME OF THE RECEIPTS/BILLS OF JEWELLERY P URCHASED ARE ENCLOSED HEREWITH. WHEN, THE CRIMINAL PROCEEDINGS S TART, ONE HAS TO GO AS PER THE ADVICE OF THE LAWYERS AND WHEN THE SITUATION GOES TO THE EXTENT OF SEPARATION, AS A NA TURAL HUMAN BEING AND A FATHER OF A DAUGHTER WHOSE LIFE WAS RUI NED BY HER IN . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 4 LAWS, ONE WANTS TO GIVE TROUBLE TO OTHER PARTY ALSO AND IN THAT FEELING THE SAID LIST WAS PREPARED AS SUGGESTED BY THE COUNSEL AND SUBMITTED. 7. THE AO AGAIN ASKED THE ASSESSEE TO SHOW CAUSE AND EXPLAIN THE SOURCE OF REAL EXPENDITURE INCURRED DURING THE MARRIAGE OF HIS DAUGHTER AND TO EXPLAIN WHETHER ANY REVISED ESTIMAT E HAD BEEN PRODUCED BEFORE THE CRIME BRANCH OR ANY AUTHORITY. THE AO ALSO ASKED THE ASSESSEE TO GIVE A REAL ESTIMATE OF EXPENDITURE HEAD-WISE IN THE FOLLOWING FORMAT :- ITEM EXPENDITURE AS STATED EARLIER REAL ESTIMATE JEWELLERY 20,37,500 BARAT KHARCHA 5,00,000 CLOTH ACCESSORY &HOUSEHOLD & SILVER UTENSILS 20,24,870 ELECTRONICS ITEMS 5,00,000 TOTAL 50,62,370(+) + COPY OF LSIT AS SUBMITTED EARLIER BEFORE THE CRIM E BRANCH IS ENCLOSED. 8. THE ASSESSEE VIDE REPLY DATED 12.12.2011 S TATED AS UNDER :- 1. AS HAS ALREADY BEEN STATED BY MY COUNSEL SHRI SURESH BATRA, ADVOCATE VIDE LETTER DT. 31.10.2011 SUBMITTED BEFOR E YOU IN PARAGRAPH 7 THAT THE STATEMENT GIVEN BY HIM AND HIS DAUGHTER IN WOMEN CELL, DELHI POLICE WAS FALSE AND MANIPULATED AS GUIDED BY THE L AWYERS ATTENDING THE CASE. THE ONLY CORRECTION IN THE SAID LETTER IS THA T HE HAS MENTIONED THAT THE SAID STATEMENT WAS GIVEN BEFORE CRIME BRANCH. I T WAS NOT CRIME BRANCH BUT WOMEN CELL, DELHI POLICE. . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 5 2. THAT YOU HAVE REQUIRED THE REAL ESTIMATE OF E XPENSES INCURRED AT THE TIME OF MARRIAGE. IT IS GIVEN AS FOLLOWS :- ITEM EXPENDITURE AS STATED EARLIER REAL ESTIMATE BEFORE WOMEN CELL JEWELLERY 2037500 1,40,000 BARAT KHARCHA 5,00,000 80,000 CLOTHS ACCESSORY 2024870 50,000 & HOUSEHOLD & SILVER UTENSILS ELECTRONIC ITEMS 500000 NIL AS HAS BEEN STATED EARLIER THAT JEWELLERY WAS PURCH ASED EARLIER FROM TIME TO TIME AS PER COPIES OF BILLS SU BMITTED BEFORE YOU. REST OF THE EXPENSES OF RS. 130000/- WA S MADE OUT OF THE SAVINGS OF THE ASSESSEE AT HOME AND OUT OF THE SAVINGS MADE BY HIS WIFE FORM HOUSEHOLD EXPENSES. NO REVISED ESTIMATE WAS GIVEN BEFORE THE WOMEN CELL OR ANY OTHER AUTHORITY. THE ESTIMATE GIVEN BEFORE THE WOMEN CELL SHOULD NOT BE RELIED UPON BECAUSE IT WAS A MANIPULATED ONE, GIVEN UNDER ANGUISH AND UNDER ABNO RMAL CIRCUMSTANCES. DAUGHTER HAS GONE BACK TO HER RESPECTIVE HOME, IS HAPPILY LIVING WITH HER HUSBAND. NOW THE RELATIONS BETWEEN THEM AND BOTH THE FAMILIES ARE SMOOTH AND NORMAL. N O ONE HAS GOT ANY COMPLAINT AGAINST EACH OTHER. 3. THAT THIS STATEMENT IS DULY SIGNED BY ME AND I CONFIRM AND SAY THAT AVERMENT MADE BY MY COUNSEL IN HIS LETTER DT. 31.10.2011 IS CORRECT AND TRUE EXCEPT TH AT THE STATEMENT WAS GIVEN BEFORE THE WOMEN CELL AND NOT C RIME BRANCH. 4. THAT THE MATTER HAS BEEN SETTLED AND WITHDRAWN IN COURT. COPY OF WITHDRAWAL LETTER AND ORDER OF THE C OURT IS ENCLOSED HEREWITH. 9. THE AO WAS NOT SATISFIED FROM THE REPLY OF THE ASSESSEE AND CONSIDERED THE EXPENDITURE INCURRED FOR MARRIAGE AS PER STATEMENT GIVEN BEFORE THE WOMEN CELL, DELHI POLICE AT RS. 50 ,62,370/-. THE AO BY KEEPING IN VIEW THE STATUS OF THE FAMILY OF THE ASSESSEE AND . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 6 CONSIDERING THIS FACT THAT THE PURCHASED JEWELLERY MIGHT HAVE BEEN FROM SAVINGS OF EARLIER YEARS AND THAT THE GIFTS WERE RE CEIVED DURING THE OCCASION OF MARRIAGE CONSIDERED RS. 10,62,370/- FRO M EXPLAINED SOURCES AND REMAINING EXPENDITURE TO THE TUNE OF RS . 40,00,000/- (RS.5062370-RS. 1062370) FROM UNEXPLAINED SOURCES AND MADE THE ADDITION OF RS. 40,00,000/- TO THE INCOME OF THE A SSESSEE U/S 69 C OF THE ACT. 10. BEING AGGRIEVED THE ASSESSEE CARRIED THE MAT TER TO THE LD. CIT AND FURNISHED WRITTEN SUBMISSION DATED 25.4.2013 ST ATING HEREIN AS UNDER :- IN CONNECTION WITH THE HEARING OF APPEAL IN THE AB OVE MENTIONED CASE, IT IS RESPECTFULLY SUBMITTED AS UNDER :- 1. THE ASSESSEE RETIRED FROM M.C.D. ON 31.5.2006. BRIEF FACTS OF THE CASE ARE THAT IN NOVEMBER, 2005, HE MARRIED HIS DAUGHTER MOHSINA KHAN WITH ONE SHRI ABID AHMED. DUE TO SOME DISPUTES BETWEEN HER AND HIS HUSBAND AND IN LAWS, SHE LEFT H ER HUSBANDS HOME AND FILED A COMPLAINT WITH CRIME BRANCH. SINCE , SHE WAS MENTALLY UPSET AND WAS OF THE VIEW THAT SHE WONT B E ABLE TO SPEND LIFE WITH THE HUSBAND AND ON THE ADVICE OF LAWYERS, GAVE A LIST OF ITEMS GIVEN DURING THE MARRIAGE AND EXPENSES INCURR ED ON MARRIAGE. THE FIGURES GIVEN WERE ON VERY HIGH SIDE AND EXORBITANT AND INFLATED ONE. LAWYERS SUGGESTED THAT IF YOU GIV E INFLATED FIGURES, YOU WILL GET MUCH LESS OF IT AS IS THE PRA CTICE IN DOWRY CELL/CRIME BRANCH. THE APPELLANT HAD NO CHOICE, BEI NG FATHER OF A GIRL WHO WAS HARASSED BY HER HUSBAND AND IN LAWS, HAD TO JOIN FIGHT WITH HIS DAUGHTER AND ENDORSED THE LIST OF DO WRY ETC. GIVEN BY HER TO THE TUNE OF RS. 51 LAKH APPROX. WHICH IS MAN IPULATED AND INFLATED ONE. THIS WAS JUST A ALLEGATION TO GIVE SO ME LESSON TO THE INLAWS SO THAT THEY COME TO SOME COMPROMISE TABLE AND LIFE OF HIS DAUGHTER IS NOT FURTHER RUINED AND THE COUPLE UNITE SOME WAY OR THE OTHER. . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 7 2. THAT THE LEARNED INCOME TAX OFFICER IN HIS ASSES SMENT ORDER HAS HELD THAT THE STATEMENTS RECORDED BY THE POLICE HAVE LEGAL SANCTITY SINCE THE EXPENDITURE WAS ADMITTED BY THE ASSESSEE AND HIS DAUGHTER. IN THIS CONNECTION, THE APPELLANT WOU LD LIKE TO TAKE A IMAGINARY CASE SO THAT WE MAY COME TO CONCLUSION WH ETHER THE STATEMENT MADE BEFORE THE POLICE CANNOT BE ACCEPTED AS AN EVIDENCE. THE EXAMPLE IS AS UNDER :- I) SUPPOSE A THIEF HAS ENTERED INTO MY HOUSE AND HAS T AKEN AWAY A SUM OF RS.50,000/- IN CASH, JEWELLERY WORTH RS.2 LAKHS. WHILE HE WAS RUNNING AWAY WITH THE SAID CASH AND JE WELLERY, I GOT UP AND I TRIED TO TAKE BACK MY ARTICLES. HE IN JURED ME BADLY AND RAN AWAY. I RECOGNIZED HIM AND FILED A CO MPLAINT WITH THE POLICE. THIEF IS KNOWN TO ME. SINCE, HE HA S TRIED TO HARM ME, INJURED ME BADLY, TAKEN AWAY MY JEWELLERY WORTH RS.2 LAKHS AND CASH OF RS. 50,000/-. TO HARASS HIM, I HAVE MADE STATEMENT IN THE POLICE THAT THE THIEF RAN AWA Y WITH CASH OF RS.15 LAKH AND JEWELLERY WORTH RS.20 LAKHS. DURI NG INTERROGATION, I GOT BACK MY CORRECT VALUABLES AND I WITHDREW THE CASE, THE CASE WAS COMPROMISED AND ALLEGATIONS RETRACTED. NOW, SINCE I HAVE STATED THAT THE THIEF WENT AWAY WITH CASH OF RS.15 LAKHS AND JEWELLERY OF RS.20 LAK HS WHICH WAS LATER ON RETRACTRED AND CASE COMPROMISED. THE I NCOME TAX DEPARTMENT CAME TO KNOW OF MY FALSE ORIGINAL ST ATEMENT HAS MADE ADDITION IN MY INCOME ONLY ON THE GROUND T HAT I HAD ONCE STATED THE SAME BEFORE THE POLICE. HAD I STATE D 2 CRORE, WHETHER THE INCOME TAX DEPARTMENT IS EMPOWERED LEGA LLY TO ADD THE SAID RS. 2 CRORE STRAIGHT AWAY OR THE INCOM E TAX DEPARTMENT IS TO PROVE THE SAID INCOME BEYOND REASO NABLE DOUBT TO TAKE TAX FROM A CITIZEN. 3 THAT CASE OF THE APPELLANT IS NOT DIFFERENT FROM SOME IMAGINARY EXAMPLE. MARRIAGE OF THE DAUGHTER WAS AT THE VERGE OF DISSOLUTION AND THE CASE WAS FILED IN WOMEN CELL. T HE APPELLANT, BEING A HUMAN, FATHER OF A GIRL WHO CAME BACK TO HI M LEAVING HER HUSBAND'S HOME. HOPES OF REUNION WERE REMOTE. THE C OUNSEL SUGGESTED THAT SINCE REUNION APPEARS NOT POSSIBLE, LET'S FILE A LIST THAT SUCH HEAVY EXPENDITURE WAS INCURRED, THE APPEL LANT AND HIS DAUGHTER PREPARED THE SAID FALSE LIST OF RS.51 LAKH S APPROX. AND SUBMITTED. DURING THE PENDENCY OF THE SAID PROCEEDI NGS, DUE TO MEDIATION OF RELATIVES, THE COMPROMISE REACHED, BOT H THE PARTIES ADMITTED THEIR MISTAKES AND DECISION TO WITHDRAW TH E ALLEGATIONS MADE AGAINST EACH OTHER. THE SAME WAS DONE AND DAUG HTER WAS SENT BACK TO THE HUSBAND'S HOME. WHEN THE ENTIRE CA SE IS WITHDRAWN, WHERE IS THE NECESSITY OF FILE REVISED ESTIMATE BEFORE . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 8 THE WOMEN CELL. THE ID. INCOME TAX OFFICER HAS BASE D HIS ADDITION THAT NO SUCH REVISED ESTIMATE WAS GIVEN BE FORE THE WOMEN CELL. AN ESTIMATE IS GIVEN TO TAKE BACK THE MONEY FROM IN LAWS. WHEN THE DAUGHTER IS GOING BACK TO HER HU SBAND'S HOME, WHAT WAS TO BE TAKEN BACK AND WHAT FOR A REVI SED ESTIMATE WAS REQUIRED TO BE SUBMITTED. WHEN THE ENTIRE CASE IS WITHDRAWN, THE SAID STATEMENT ALSO STANDS WITHDRAWN. THERE WAS NO NEED TO SPECIFICALLY WITHDRAW THE STATEMENT MENTIONING RS.5 1 LAKHS EXPENDITURE. 4. THAT IT IS FURTHER PERTINENT TO MENTION THAT IN THE PRECEDING YEAR IN DECEMBER, 2004, THE APPELLANT HAD DONE MARR IAGE OF HER ANOTHER DAUGHTER TABASSUM AND A SUM OF RS.50,000/- WAS SPENT ON THE MARRIAGE. THE SAID CASE HAS ALSO BEEN DONE U /S 143(3) IN SCRUTINY AND EXPENSES OF RS.50,000/- WERE ACCEPTED BY THE ID. INCOME TAX OFFICER. THE APPELLANT HAS FOUR DAUGHTER S. NO FATHER WOULD LIKE TO DISCRIMINATE ON THE EXPENSES TO BE IN CURRED ON THE MARRIAGES OF HIS DAUGHTERS TO THAT EXTENT. IF ONE Y EAR BACK ONLY RS.50,000/- WERE SPENT, IN ONE YEAR AFTER A PERSON WHO IS A GOVT. EMPLOYEE, FROM WHERE HE WOULD BRING RS.50 LAKHS TO SPEND ON MARRIAGE. THE APPELLANT HAS 4 DAUGHTERS ONLY AND AL L THE DAUGHTERS ARE EQUALLY TO PARENTS. THEREFORE, IT APP EARS UNFAIR TO SPEND RS.50,000/- ON ONE MARRIAGE AND RS.50 LAKHS O N ANOTHER IN A TIME GAP OF ONE YEAR. COPY OF ASSESSMENT ORDER FOR A.YR.2005-06 IS NOT AVAILABLE WITH THE APPELLANT. T HE SAME SHALL BE SUBMITTED AFTER GETTING CERTIFIED COPY FROM THE DEPARTMENT. YOUR HONOUR MAY CALL THE RECORDS OF A.YR.2005- 06 A ND CAN VERIFY THE SAME FACT FROM THE WARD FILE OF THE DEPARTMENT ALSO. 5. THAT COPIES OF ORDER DT. 16.9.11 OF POOJA TAL WAR, MM/MAHILA COURT, STATEMENT OF PETITIONER MOHSINA KHAN,DAUGHTE R AND AN APPLICATION DT. 7.9.11 FOR WITHDRAWAL OF COMPLAINT ARE ENCLOSED HEREWITH. 6. THAT A LETTER IN ORIGINAL FROM SHRI ABID AHMED, SON IN LAW OF THE APPELLANT WITH WHOM THE ENTIRE DISPUTES AROSE I S ENCLOSED HEREWITH. HE HAS CATEGORICALLY STATED THAT THERE WE RE NO TRUTHS IN RTI APPLICATION AND IT WAS JUST REACTION TO FIR FIL ED BY HIS WIFE AND THE APPELLANT. HE HAS ADMITTED THAT THERE IS NO TRUTH IN THE COMPLAINT FILED WITH IT DEPARTMENT BY HIM. HE HAS A LSO STATED THAT HE CAN ALWAYS APPEAR BEFORE THE INCOME TAX AUTHORIT IES AS AND WHEN ASKED TO DO SO TO MAKE A STATEMENT THAT THE CO MPLAINT FILED BY HIM WAS FALSE AND IT WAS FILED TO GIVE SOME PAIN S TO THE APPELLANT SINCE HE HAD GIVEN AN EXTRA EXORBITANT LI ST OF EXPENDITURE AND DOWRY GIVEN AT MARRIAGE. . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 9 IN ADDITION TO THE ABOVE, THE APPELLANT WOULD LIKE TO GIVE SOME MORE EVIDENCE AND COPISES OF JUDGEMENTS ON WHICH HE RELIES IN SUPPORT OF THE SUBMISSIONS GIVEN HEREIN. FOR THE PU RPOSE, IT IS REQUESTED THAT THE MATTER MAY KINDLY BE ADJOURNED F OR ABOUT 15 DAYS AND OBLIGE. 11. THE ASSESSEE FURTHER SUBMITTED VIDE SUBMISSIONS DATED 25.04.2013 AS UNDER :- 1.THAT THE APPELLANT JOINED M.C.D. AS SECTION OFFI CER IN 1970. AS A RESULT OF SENIORITY, HE WAS PROMOTED AS ASSTT.EN GINEER, THEN TO EXECUTIVE ENGG., THEN AS SUPERINTENDING ENGINEER AN D HE RETIRED AS DIRECTOR, DEPTT. DELHI JAL BOARD, M.C.D. IN MAY, 2006. NOW, HE IS LIVING RETIRED LIFE AND IS GETTING PENSION OF RS .22975/-. HE HAS 5 DAUGHTERS AND NO SON. IN THE EARLIER LETTER DT. 25. 4.13, IT WAS WRONGLY MENTIONED THAT THE APPELLANT HAS 4 DAUGHTER S. IN FACT, HE HAS 5 DAUGHTERS OUT OF WHICH 4 ARE MARRIED. 2. DETAILS OF DAUGHTERS OF THE APPELLANT, THEIR QUA LIFICATIONS, POSITIONS OF THEIR HUSBANDS AND AMOUNT SPENT OF THE IR MARRIAGES IS GIVEN AS UNDER:- I) ELDEST DAUGHTER SHEEBA KHAN IS B.TECH FROM ALIGA RH. SHE WAS MARRIED TO ONE NISHAD FAISAL IN THE YEAR 1989. AN AMOUNT OF RS.50 TO 75,000/- WAS SPENT ON HER MARRIAGE AND JEW ELLERY BETWEEN 8 TO 10 TOLAS WAS GIVEN TO HER. IT WAS A SI MPLE OCCASION. HER HUSBAND IS LECTURER IN AMU UNIVERSITY, ALIGARH. II) SECOND DAUGHTER NAMELY SHABANA KHAN HAS DONE B.U.M.S. FROM DELHI. SHE WAS MARRIED IN THE YEAR 20 00 WITH ONE MUSHARAF ALI KHAN IN THE YEAR 2000. HER HUSBAND IS WORKING AS ASSTT. ENGINEER IN N.H.P.C. HER MARRIAGE WAS ONLY A SIMPLE OCCASION AND AN AMOUNT NOT EXCEEDING RS.1 LAKH WAS SPENT ON FUNCTION. JEWELLERY OF 8 TO 10 TOLAS WAS GIVEN TO H ER. NO INVESTMENT WAS MADE ON JEWELLERY AT THE TIME OF MAR RIAGE. SOME WAS LYING WITH THE WIFE OF APPELLANT, PURCHASED FRO M TIME TO TIME AND WAS GIFTED BY NEAR RELATIVES. III) 3RD DAUGHTER NAMELY TABASSUM WAS MARRIED IN 2 004. SHE IS ALSO B.TECH. FROM AMU ALIGARH. HER HUSBAND SHRI RAIS AHMED. AN AMOUNT OF RS.50 TO 75000/ WAS SPENT ON HER MARRI AGE WHICH WAS A VERY SIMPLE OCCASION. CASE RELEVANT TO THIS PARTICULAR PERIOD WAS ALSO REOPENED U/S 148, THE ASSESSMENT CO MPLETED U/S 143(3) AT THE RETURNED INCOME. QUESTION WITH REGARD TO EXPENDITURE INCURRED ON MARRIAGE WAS SPECIFICALLY A SKED IN THE QUERY, AND DETAILS OF EXPENSES WERE GIVEN. COPY OF REPLY AND . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 10 AFFIDAVIT DT. 15.9.10 FILED DURING THE COURSE OF AS SESSMENT FOR A.YR.2005-06 IS GIVEN ALONGWITH COPY OF ASSTT. ORDE R FOR A.YR.2005-06. IV) 4TH DAUGHTER NAMELY MOHSINA KHAN WAS MARRIED I N NOV.2005, THE RELEVANT YEAR UNDER APPEAL BEFORE YO UR HONOUR. AS HAS ALREADY BEEN STATED AND DETAILS OF EXPENDITU RE GIVEN DURING ASSESSMENT PROCEEDINGS THAT IT WAS A SIMPLE OCCASION. THE SAID DETAILS ARE NOT BEING REPEATED FOR THE SAK E OF BREVITY. MOHSINA KHAN IS B.U.M.S. FROM JAMIA, DELHI AND IS A LSO M.B.A., HER HUSBAND ABID AHMED IS IN PVT. SERVICE AT BANGAL ORE. V) 5TH YOUNGEST DAUGHTER NAMELY ZENAB KHAN IS B.TE CH. AGED 26 IS UNMARRIED AND IS IN FIND OF SOME JOB. VI) WIFE OF APPELLANT NAMELY SMT. DURDANA IS HOUS EWIFE. 3. IN OUR COMMUNITY OF MOHAMDANS, IT IS NEVER A BIG SHOW IN MARRIAGES. THE APPELLANT CONCENTRATED ON THE EDUCAT ION OF THEIR DAUGHTERS AND SINCE HIS DAUGHTERS ARE WELL EDUCATED , THEIR MARRIAGE WAS NEVER A PROBLEM FOR HIM. MARRIAGES WER E DONE IN A VERY LOW PROFILE MANNER AND AMOUNT SPENT ON THEIR EDUCATION WAS CONSIDERED AS VALUE AND THEIR MARRIAGES DONE IN GOOD FAMILIES. 4. THAT WHETHER IT IS POSSIBLE THAT IN THE YEAR 200 4, THE APPELLANT IS SPENDING RS.75000/- IN MARRIAGE OF ONE DAUGHTER, MAY SPEND RS.50 LAKHS IN THE YEAR 2005 IN THE MARRI AGE OF ANOTHER DAUGHTER. NO FATHER CAN DO SO. EXPENSES IN CURRED TO THE TUNE OF RS.75000/- HAS BEEN ACCEPTED IN THE PRECEDI NG YEAR. 5. AS REGARDS THE FINANCIAL STATUS OF THE APPELLANT IT IS SUBMITTED THAT HE IS THE ONLY EARNING MEMBER IN THE FAMILY. HE TOO HAS ONLY PENSION INCOME PLUS INCOME FROM MONTHL Y INCOME SCHEMES ON INVESTMENT OF RS.21 LAKHS DONE WHEN HE R ECEIVED PENSION FUNDS, GRATUITY ETC. IN MAY,2006 AT THE TIM E OF RETIREMENT. COPIES OF RETURNS FILED FOR THE LAST 4 YEARS ALONG WITH COMPUTATION OF INCOME ARE ENCLOSED HEREWITH. HE HAS 2 BANK ACCO UNTS, ONE WITH P.N.B. MAHARANI BAGH, NEW DELHI WHERE THE PENS ION AMOUNT IS CREDITED EVERY MONTH AND OTHER ACCOUNT IS WITH DENA BANK, CONNAUGHT CIRCUS, N. DELHI WHERE A SMALL PENS ION OF RS.1041/- IS CREDITED EVERY MONTH. COPIES OF THE SA ID PASS BOOKS FOR THE LAST 3 YEARS ARE ENCLOSED HEREWITH. PERUSAL OF THE PASS BOOK WOULD REVEAL THAT THE APPELLANT WITHDRAWS THE AMOUNT OF PENSION ALMOST EVERY MONTH SINCE THAT IS SOURCE OF HIS LIVELIHOOD. APART FROM THESE 2 ACCOUNTS, THE APPELLANT DOES NOT MAINTAIN ANY OTHER BANK ACCOUNT ANYWHERE. HE HAS NO F.D., NEVER INVESTED IN ANY PROPERTY ANYWHERE. HE HAS GOT ONE RESIDENTIAL H OUSE AT 95, JOHRI FARM, NOOR NAGAR EXTENSION, OKHLA NEW DELHI W HICH IS IN . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 11 THE NAME OF HIS WIFE SMT. DURDANA, PURCHASED IN 199 5 FOR RS.1,50,000/-. COPY OF DOCUMENTS OF PURCHASE ARE EN CLOSED HEREWITH. IT IS STILL UNREGULARIZED COLONY. IT WAS CONSTRUCTED TILL 1998. IT IS MG. 200 SQ. YARDS AND CONSTRUCTED TILL 1998 IN INSTALMENTS. DETAILS REGARDING THE SAID PROPERTY WE RE ALSO GIVEN IN THE ASSESSMENT PROCEEDINGS FOR A.YR.2005-06 IN T HE SHAPE OF AFFIDAVIT DT.15.9.10, COPY OF WHICH IS ENCLOSED HER EWITH. THE APPELLANT HAS GOT N.S.CS. WORTH RS.5 LAKHS WHIC H HE HAS BEEN ABLE TO SAVE SINCE THAT IS REQUIRED TO SAVE IN COME TAX EVERY YEAR. THE SAME HAVE DULY BEEN SHOWN EVERY YEAR AND REBATE U/S 80-C TAKEN IN THE RETURNS. ALL THIS CAN LEAD WHAT W ORTH THE APPELLANT HAS. HE COULD NOT EVEN DREAM SPENDING RS. 50 LAKHS ODD ON ONE MARRIAGE. 6. THAT THE AMOUNT OF RS.50 LAKHS ODD, THE LIST SU BMITTED TO THE POLICE WAS MERELY A STATEMENT OF CLAIMS. IT WAS NEITHER A STATEMENT OF FACT, NOR DECLARATION NOR STATEMENT OF TRUTH BUT ONLY A CLAIM LODGED AT THE PARTICULAR TIME WHEN HE WAS VER Y MUCH MENTALLY UPSET SINCE HIS DAUGHTER WAS HARASSED BY H ER IN LAWS. IT WAS JUST OUT OF ANGER AND ANNOYANCE WITH AN INTENTI ON TO GIVE SOME PAINS TO THE IN LAWS OF DAUGHTER WHO WAS BEING HARASSED. 7. THAT THE INDIAN EVIDENCE ACT, 1872 DEFINES WHAT IS PROVED AND WHAT IS DISPROVED IN SECTION 2 WHICH IS AS UNDE R:- PROVED:- A FACT IS SAID TO BE PROVED WHEN, AFTER CO NSIDERING THE MATTERS BEFORE IT, THE COURT EITHER BELIEVES IT TO EXIST, OR CONSIDERS ITS EXISTENCE SO PROBABLE THAT A PRUDENT MAN OUGHT, UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE, TO ACT UPON T HE SUPPOSITION THAT IT EXISTS. DISPROVED:- A FACT IS SAID TO BE DISPROVED WHEN, AF TER CONSIDERING THE MATTERS BEFORE IT, THE COURT EITHER BELIEVES THAT IT DOES NOT EXIST, OR CONSIDERS IT NON-EXISTENCE SO PR OBABLE THAT A PRUDENT MAN OUGHT, UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE, TO ACT UPON THE SUPPOSITION THAT IT DOES NOT EXIST. NOT PROVED:- A FACT IS SAID NOT TO BE PROVED WHEN I T IS NEITHER PROVED NOR DISPROVED. 8. THAT NOW COMING BACK TO THE APPELLANT'S CASE, A STATEMENT OF CLAIMS WAS GIVEN. NO DECISION ON IT WAS TAKEN. NO I NFERENCE WAS DRAWN BY THE COURT. THE CASE WAS WITHDRAWN BY BOTH THE PARTIES. IT DID NOT REACH TO THE STAGE OF WITNESSES AND CONC LUSION. WHEN, A MATTER REMAINED UNDECIDED, THE SAID LIST OF DOWRY ETC. CANNOT BE TAKEN AS AN ADMISSION OR EVIDENCE UNDER INCOME T AX ASSESSMENT. . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 12 9. THAT AN AFFIDAVIT OF THE APPELLANT THAT WHATEVER FACTUAL POSITION HAS BEEN STATED IN WRITTEN SUBMISSIONS DT. 25.4.2013 AND 30.4.2013 ARE TRUE AND CORRECT. IT IS HOPED THAT THE SUBMISSIONS GIVEN ABOVE WILL S HOW YOUR HONOUR THAT WHAT IS DONE BY THE ID. INCOME TAX OFFI CER IS WRONG, UNJUSTIFIED, ILLEGAL AND ADDITION OF RS.40 LAKHS MA DE IN THE CASE SHALL BE DELETED IN ITS ENTIRETY. 12. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIO NS OF THE ASSESSEE DELETED THE ADDITION OF RS. 39,00,000/- AND SUSTAI NED THE ADDITION OF RS. 1,00,000/- BY OBSERVING AS UNDER :- 5. I HAVE PERUSED THE ASSESSMENT ORDER, GRO UNDS OF APPEAL, WRITTEN SUBMISSION AND DISCUSSED THE MATTER WITH THE AR OF THE APPELLANT VERY CAREFULLY. THE AO HAD MADE AN ADDITION OF RS.40 LACS U/S 69C OF THE I.T. ACT O N ESTIMATION OF EXPENDITURE TOWARDS MARRIAGE OF FOURT H DAUGHTER OF THE APPELLANT IN THE F.Y. 2005-06. THE CASE IS HEARD AND DISCUSSED WITH THE APPELLANT AND HIS AR S H. SURESH BATRA, ADVOCATE, WHO ALSO REPRESENTED THE CA SE BEFORE THE AO. THE CASE WAS RE-OPENED U/S 148 OF THE I. T. ACT ON A TAX EVASION PETITION RECEIVED WHERE DUE TO DISPUTE BETW EEN THE BRIDE AND BRIDEGROOM A COMPLAINT HAD BEEN FILED BEFORE THE WOMEN CELL, DELHI POLICE AND ON ANGER TH E SON-IN-LAW OF THE APPELLANT FILED THE PETITION FOR A DIVORCE AND THE APPELLANT, I.E. FATHER OF THE BRIDE FILED F IR ALSO AND MATTER WENT TO WOMEN CELL OF DELHI POLICE FOR G ETTING JUSTICE AND RE-UNION OF THE MARRIAGE. AFTER 5- 6 MO NTHS THE FAMILY SETTLED A MATTER OUT OF COURT AND THEY LIVED HAPPILY AS ON TODAY. THE APPELLANT HAD GIVEN THE EXPLANATIO N OF EXPENDITURE MADE IN THE MARRIAGE AND ALSO GIVEN HIS WRITTEN SUBMISSION ON 25.04.2013 & 30.04.2013 WHICH WAS REPRODUCED AS ABOVE. THE APPELLANT JOINED AS A SECTION OFFICER IN 1970 A ND ROSED TO THE LEVEL OF DIRECTOR, DELHI JAL BOARD, MC D AND RETIRED IN MAY, 2006. THE F.Y. 2005-06 IS ABOUT THE RETIREMENT YEAR IN WHICH THE APPELLANT GETS MARRIAG E TO HIS FOURTH DAUGHTER. THE APPELLANT NARRATES HIS BACKGROUND OF FINANCIAL AND SOCIAL STATUS IN HIS 30 TH APRIL, . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 13 2013 LETTER VERY CLEARLY. HE HAS GIVEN MARRIAGE TO HIS THIRD DAUGHTER AT A COST OF RS.75,000/- IN THE YEAR 2004. HE HAD GIVEN GOOD EDUCATION TO ALL FIVE DAUGHTERS AND STILL ONE DAUGHTER IS UNMARRIED. IN MUSLIM COMMUNITY EDUCATION IS NOT THAT DEVELOPED TO GIRLS. HOWEVER, CONSIDERING THE FINANCIAL CONDITION AND HIS RETIRED PENSION OF RS.20,000/- P.M. AT PRESENT, THE EXPENSES ON MAR RIAGE CANNOT BE MADE MORE THAN RS.2.5 LAKHS FOR THE FOURT H DAUGHTER'S MARRIAGE. SINCE HE HAD SOME PAST SAVINGS AND JEWELLERY AND UTENSILS, PERSONAL EFFECT ETC. I MAKE AN ADDITION OF RS.1,00,000/- ON ESTIMATE BASIS TOWARDS THE MARRIAGE EXPENSES OF APPELLANT'S FOURTH DAUGHTER U/ S 69C OF THE I.T. ACT. THE TOTAL INCOME ASSESSED AFTER TH IS APPELLATE ORDER WILL BE RS.3, 15,010/- AND THE BALA NCE AMOUNT OF RS.39,00,000/- WILL BE DELETED. 13. NOW, THE DEPARTMENT IS AN APPEAL AGAINST THE RELIEF OF RS. 39,00,000/- AND THE ASSESSEE IS IN APPEAL AGAINST T HE SUSTENANCE OF ADDITION OF RS. 1,00,000/- . THE LD. DR STRONGLY SUPPORTED THE ORDER OF THE AO AND REITERATED THE OBSERVATIONS MADE IN THE ASSESSMENT ORDER DATED 19.12.2011. IN HIS RIVAL SUBMISSIONS, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE AO HAD TAKEN THE AMO UNT OF MARRIAGE EXPENSES ONLY ON THE BASIS OF STATEMENT RECORDED BY THE OFFICERS OF WOMEN CELL, DELHI POLICE WHICH WAS MERELY STATEMENT OF CLAIM BUT NOT STATEMENT OF TRUTH, IT WAS JUST OUT OF ANGER AND AN NOYANCE WITH AN INTENTION TO GIVE SOME PAINS TO THE IN-LAWS OF DAUG HTER WHO WAS BEING HARASSED. IT WAS CONTENDED THAT LATER ON SON IN LA W OF THE ASSESSEE WROTE A LETTER TO THE DEPARTMENT STATING THAT THE C OMPLAINT FILED BY HIS . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 14 FATHER-IN-LAW WAS FALSE AND EXORBITANT, LIST OF IT EMS GIVEN ON MARRIAGE AS DOWRY WAS MENTIONED AND IN TURN HE ALSO FILED THE C OMPLAINT TO THE INCOME TAX DEPARTMENT WHICH WAS FALSE. THE LD COUN SEL FOR THE ASSESSEE FURTHER SUBMITTED THAT IN THE EARLIER YEAR INCOME OF THE ASSESSEE WAS ACCEPTED U/S 143(3) OF THE ACT AT RS. 2,60,504/ -. IT WAS STATED THAT NO EXPENSES WERE INCURRED FROM THE OTHER SOURCES O N THE MARRIAGE OF THE DAUGHTER. THEREFORE, THE ADDITION SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED . 14. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH T HE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE WAS H AVING FIVE DAUGHTERS AND HAD GIVEN GOOD EDUCATION TO ALL OF THEM. HE CLA IMED TO HAVE SPENT AN AMOUNT OF RS. 50 TO 75,000/- AND JEWELLERY BETWEEN 8 TO 10 TOLAS ON THE MARRIAGE OF HER ELDEST DAUGHTER IN 198 9 WHICH IS NOT DOUBTED BY THE DEPARTMENT, FOR THE 2 ND DAUGHTER, HE CLAIMED TO HAVE SPENT ABOUT RS. 1,00,000/- AND GIVEN JEWELLERY OF 8 TO 10 TOLAS IN THE YEAR 2000, THE SAID SPENT AMOUNT WAS ALSO NOT DOUBT ED. FOR THE THIRD DAUGHTER THE ASSESSEE CLAIMED THAT EXPENSES OF RS. 50 TO 75,000/- WERE INCURRED ON ACCOUNT OF MARRIAGE IN 2004. THOS E WERE ALSO NOT DOUBTED AND ACCEPTED WHILE FRAMING THE ASSESSMENT U /S 143(3) OF THE ACT. THE 4 TH DAUGHTER WAS MARRIED IN NOVEMBER, 2005 BUT SOME . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 15 DISPUTE AROSE WITH THE IN-LAWS AND THE ASSESSEE F ILED A COMPLAINT TO THE WOMEN CELL OF POLICE, ON THE BASIS OF THE SAID COMPLAINT, THE AO PRESUMED THAT THE ASSESSEE MIGHT HAVE INCURRED AN EXPENSES OF RS. 50,62,370/-. HOWEVER NOTHING WAS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE SAID EXPENDITURE WAS IN FACT INCURRED BY T HE ASSESSEE. THE ASSESSEE LATER ON CLARIFIED TO THE AO THAT ACTUAL E XPENSES FOR CLOTH ACCESSORIES AND BARAT KHARCHA WERE AT RS.50,000/- A ND RS.80,000/- RESPECTIVELY AND JEWELLERY WORTH RS. 1,40,000/- PUR CHASED IN EARLIER YEARS WAS GIVEN. THE SAID EXPLANATION APPEARS TO BE PLAUSIBLE CONSIDERING THE EXPENSES INCURRED BY THE ASSESSEE O N THE OCCASION OF THE MARRIAGES OF HIS OTHER DAUGHTERS IN THE EARLIER YEARS. THEREFORE, WE ARE OF THE VIEW THAT THE AO WAS NOT JUSTIFIED IN MA KING THE ADDITION OF RS.39 LACS AND THE LD. CIT(A) ALSO SUSTAINED THE AD DITION OF RS. 1,00,000/- ON ESTIMATE BASIS WITHOUT BRINGING ANY M ATERIAL ON RECORD. IN OUR OPINION WHEN THE LD. C.I.T.(A) HAD ACCEPTED THAT THE ASSESSEE HAD SOME PAST SAVING AND JEWELLERY & UTENSILS, PER SONAL EFFECTS ETC., THE ADDITION OF RS. 1 LAC ON ESTIMATE BASIS WAS NOT JUSTIFIED. 15. WE, THEREFORE, CONSIDERING THE TOTAL FACT OF THE CASE DEEM IT APPROPRIATE TO DELETE THE ADDITION SUSTAINED BY THE LD. CIT(A). 16. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED AND THAT OF THE ASSESSEE IS ALLOWED. . ITA NO. 4518/DEL/2 013 C.O. NO. 4 02/DEL/2013 16 (ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH JUNE, 2015.) SD/- SD/- (A.T.VARKEY ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED 5 TH JUNE, 2015 B.RUKHAIYAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR