ITO, Rohtak V. Smt Raj Bala, Rohtak

ITA 4573/DEL/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9952 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 08-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIV RAJ KUMAR BATRA
• Assessee Lawyers: VIKRAM SAHAY
• Keywords: Gift; Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH F FF F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI INTURI RAMA RAO INTURI RAMA RAO INTURI RAMA RAO INTURI RAMA RAO, , , , ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO. .. .4573/DEL/2012 4573/DEL/2012 4573/DEL/2012 4573/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009- -- -10 1010 10 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -1, ROHTAK. 1, ROHTAK. 1, ROHTAK. 1, ROHTAK. VS. VS. VS. VS. SMT. RAJ BALA, SMT. RAJ BALA, SMT. RAJ BALA, SMT. RAJ BALA, W/O SHRI OM PARKASH, W/O SHRI OM PARKASH, W/O SHRI OM PARKASH, W/O SHRI OM PARKASH, 7/13, HANUMAN COLONY, 7/13, HANUMAN COLONY, 7/13, HANUMAN COLONY, 7/13, HANUMAN COLONY, SUKHPURA CHOWK, SUKHPURA CHOWK, SUKHPURA CHOWK, SUKHPURA CHOWK, ROHTAK. ROHTAK. ROHTAK. ROHTAK. PAN : AMYPB0365M. PAN : AMYPB0365M. PAN : AMYPB0365M. PAN : AMYPB0365M. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHIV RAJ KUMAR BATRA, ADVOCATE. RESPONDENT BY : SHRI VIKRAM SAHAY, SR.DR. DATE OF HEARING : 08.04.2015 08.04.2015 08.04.2015 08.04.2015 DATE OF PRONOUNCEMENT : 10.04.2015 10.04.2015 10.04.2015 10.04.2015 ORDER ORDER ORDER ORDER PER INTURI RAMA RAO, AM PER INTURI RAMA RAO, AM PER INTURI RAMA RAO, AM PER INTURI RAMA RAO, AM : :: : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS), ROHTAK DATED 29 TH JUNE, 2012 FOR THE ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS:- 1. THE LD.CIT ERRED IN LAW & ON THE FACTS IN DELET ING THE CASH CREDITS OF RS.26,15,000/- WHILE THE ASSESS EE FAILED TO PROVE THE GENUINENESS, CREDIT WORTHINESS & IDENTITY OF THESE CASH CREDITS DURING THE COURSE OF ASSTT. PROCEEDINGS AS WELL AS DURING THE COURSE OF APPELLA TE PROCEEDINGS. ITA-4573/DEL/2012 2 2. THE LD.CIT(A) DELETED THE ADDITION OF RS.26,15,0 00/- WITHOUT GIVING ANY COGENT REASONS AND WITHOUT REJEC TING THE REMAND REPORT. 3. THE APPELLANT CRAVES LEAVE TO ADD, DELETE OR AMEND ANY GROUND OR GROUNDS OF APPEAL AT THE TIME O F HEARING. 3. THE BRIEF FACTS OF THE CASE LEADING TO THE PRESE NT APPEAL OF THE REVENUE ARE AS FOLLOWS. THE RESPONDENT ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM THE BUSINESS OF PURCHASE AND S ALE OF ARTIFICIAL JEWELLERY. FOR THE ASSESSMENT YEAR 2009-10, THE RE SPONDENT ASSESSEE FILED THE RETURN OF INCOME ON 26.05.2009 DECLARING TOTAL INCOME OF `1,34,680/-. SUBSEQUENTLY, THE CASE WAS SELECTED F OR SCRUTINY UNDER CASS AND THE ASSESSMENT WAS COMPLETED VIDE ORDER DA TED 20 TH DECEMBER, 2012 AT A TOTAL INCOME OF `27,51,479/- AF TER MAKING SEVERAL DISALLOWANCES. ONE OF THE DISALLOWANCES WAS FOR AL LEGED UNDISCLOSED BANK DEPOSITS OF `26,15,000/-. 4. AGGRIEVED BY THE ABOVE DISALLOWANCE, THE RESPOND ENT ASSESSEE HAS FILED AN APPEAL BEFORE THE COMMISSIONER OF INCO ME TAX (APPEALS), ROHTAK WHO, AFTER CONSIDERING THE EXPLANATION AND M ATERIAL FILED, HAD DELETED THE ADDITION. AGGRIEVED, THE REVENUE HAD F ILED THE PRESENT APPEAL. 5. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATI VE VEHEMENTLY ARGUED THAT THE LEARNED CIT(A) OUGHT NOT TO HAVE DE LETED THE ADDITION AS THE BOOKS OF ACCOUNT AS CLAIMED TO HAVE BEEN PRO DUCED BEFORE THE AO, WERE NEVER PRODUCED. HE FURTHER ARGUED THAT TH E GIFTS CLAIMED TO HAVE BEEN RECEIVED FROM THE REAL BROTHERS OF THE AS SESSEE WERE MADE IN CASH, RAISE SERIOUS DOUBTS AND SUSPICIONS ABOUT THE GENUINENESS OF THE GIFTS. ITA-4573/DEL/2012 3 6. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRES ENTATIVE OF THE ASSESSEE HAD RELIED UPON THE ORDER OF THE CIT(A). 7. WE HEARD THE RIVAL PARTIES AND PERUSED THE MATER IAL ON RECORD. IN THE PRESENT CASE, WE HAVE TO EXAMINE WHETHER THE EXPLANATION OFFERED BY THE ASSESSEE THAT THE CASH DEPOSITS MADE IN THE BANKS WERE MADE OUT OF THE BUSINESS INCOME OF THE ASSESSEE FOR WHICH THE BOOKS OF ACCOUNT WERE MAINTAINED, AND THE GIFTS RECEIVED FROM THE RELATIVES ARE TENABLE IN THE EYES OF LAW OR NOT. WE FIND THA T THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAD EXTRACTED THE ENTRIES MADE IN THE ORDER SHEET OF THE ASSESSING OFFICER. FROM THESE ENTRIES, IT IS CLEAR THAT THE ASSESSEE HAD PRODUCED THE BOOKS OF A CCOUNT AND EXPLAINED THE SOURCE OF DEPOSITS IN CASH BEFORE THE AO. THE AO, WITHOUT CONSIDERING THE EXPLANATION FURNISHED, HAD ARBITRARILY MADE ADDITION OF CASH DEPOSITS. THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS), AFTER VERIFICATION OF THE CASH DEPOSITS WITH REFERENCE TO THE BOOKS OF ACCOUNT MAINTAINED, HAD COME TO A CONCLUSI ON THAT THE DEPOSITS WERE MADE OUT OF THE BUSINESS SOURCE AND E ACH DEPOSITS AND WITHDRAWALS WERE DULY REFLECTED IN THE BOOKS MAINTA INED. THE LEARNED DR HAD NOT PRODUCED ANY CONTRARY EVIDENCE. WITH RE GARD TO THE GIFTS STATED TO HAVE BEEN RECEIVED FROM THE BROTHERS AND CLOSE RELATIVES, WE FIND THAT THE CLOSE RELATIVES HAVE FILED AFFIDAVITS DULY NOTARIZED AFFIRMING THE FACTUM OF THE CASH GIFT MADE TO THE A SSESSEE. THE AFFIDAVITS FILED ALSO CONTEND THAT THE GIFTS WERE M ADE OUT OF THE RETIREMENT BENEFITS ETC. INDICATING THE SOURCE OF T HE GIFTS. THE LEARNED DR HAD NOT CONTROVERTED THE CONTENTS OF THE AFFIDAV ITS BUT HE ONLY MADE A BALD STATEMENT THAT AFFIDAVITS CANNOT BE ACC EPTED IN VIEW OF THE FACT THAT THE GIFTS WERE MADE IN CASH. THE CON TENTIONS OF THE LEARNED DR CANNOT BE ACCEPTED. THE EVIDENCE TENDER ED BY WAY OF AN AFFIDAVIT BEFORE THE AO SHOULD BE ACCEPTED AS SUFFI CIENT PROOF OF THE CONTENTS OF THE AFFIDAVIT. HAD THE AO DISSATISFIED WITH THE CONTENTS OF ITA-4573/DEL/2012 4 THE AFFIDAVIT, THE ONLY COURSE OPEN TO HIM IS TO CR OSS-EXAMINE THE DEPONENT. IF NO SUCH THING IS DONE, THE AFFIDAVIT BY ITSELF SHOULD BE REGARDED AS SUFFICIENT PROOF AS HELD BY HON. SUPREM E COURT IN MEHTA PARIKH & CO.VS. CIT [1956] 31 ITR 181. MOREOVER, THERE IS NO BAR UNDER THE PROVISIONS OF ANY STATUTE THAT GIFTS SHOU LD NOT BE MADE IN CASH. THE MERE FACT THAT THE DONORS WERE NOT ASSES SED TO TAX IS NOT OF ANY CONSEQUENCE, MORE SO, WHEN THE AMOUNT INVOLVED IS VERY MEAGRE. FURTHER, WE FIND THAT IN THE CASE OF THE ASSESSEES SPOUSE WHERE SIMILAR ADDITION WAS MADE, THE APPEAL FILED BY THE REVENUE WAS DISMISSED BY THIS HONBLE TRIBUNAL VIDE ORDER DATED 8 TH MARCH, 2013 IN ITA NO.4572/DEL/2012. THEREFORE, WE HAVE NO HESITATION IN QUASHING THE GROUNDS OF APPEAL FILED BY THE REVENUE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 10 TH APRIL, 2015. SD/- SD/- ( (( ( G.C. GUPTA G.C. GUPTA G.C. GUPTA G.C. GUPTA ) )) ) (INTURI RAMA RAO (INTURI RAMA RAO (INTURI RAMA RAO (INTURI RAMA RAO ) )) ) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER VK. COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -1, ROHTAK. 1, ROHTAK. 1, ROHTAK. 1, ROHTAK. 2. RESPONDENT : SMT. RAJ BALA, W/O SHRI OM PARKASH, SMT. RAJ BALA, W/O SHRI OM PARKASH, SMT. RAJ BALA, W/O SHRI OM PARKASH, SMT. RAJ BALA, W/O SHRI OM PARKASH, 7/13, HANUMAN COLON 7/13, HANUMAN COLON 7/13, HANUMAN COLON 7/13, HANUMAN COLONY, Y,Y, Y, SUKHPURA CHOWK, ROHTAK. SUKHPURA CHOWK, ROHTAK. SUKHPURA CHOWK, ROHTAK. SUKHPURA CHOWK, ROHTAK. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR