ITO, Rohtak V. Sh. Ashok Kumar Prop., Rohtak

ITA 4707/DEL/2011

• Counselvise Citation: 470720114 RSA 2011
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 28-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C B SINGH
• Assessee Lawyers: R N CHAWLA ADV APPEAL HEARD ON
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI A.N.PAHUJA, ACCOUNTANT MEMBER I.T.A .NO.-4707/DEL/2011 ASSESSMENT YEAR-2008-09 ITO, VS. SH. ASHOK KUMAR PROP., WARD-4, SONEPAT, DHINGRA KIRYANA STORE, HQ AT AAYAKAR BHAWAN, MAIN BAZAR, MEHAM, ROHTAK DIST.-ROHTAK PAN-AJTPK9162F (APPELLANT) (RESPONDENT) C.O. NO-388/DEL/2011 (IN ITA NO.- 4707/DEL/2011) ASSESSMENT YEAR-2008-09 SH. ASHOK KUMAR PROP., VS. ITO, DHINGRA KIRYANA STORE, WARD-4, SONEPAT, MAIN BAZAR, MEHAM, HQ AT AAYAKAR BHAWAN, DIST.-ROHTAK ROHTAK (RESPONDENT) (APPELLANT) APPELLANT BY: SHRI C.B.SINGH, SR. DR RESPONDENT BY: SHRI R.N.CHAWLA, ADV. APPEAL HEARD ON-28.08.2012 ORDER PRONOUNCED ON-31.08.2012 ORDER PER HARI OM MARATHA, JM THE APPEAL BY THE REVENUE IS DIRECTED AGAINST AND THE CROSS OBJECTION (CO) BY THE ASSESSEE HAS BEEN FILED IN SUPPORT OF T HE ORDER OF LD. CIT(A), ROHTAK, DATED 19.08.2011. NO MATERIAL GROUND HAS BEEN RAISED IN THE CO. RESULTANTLY, THE CROSS-OBJECTION STANDS DISMISSED, BEING SIMPLY SUPPORTIVE. I.T.A .NO.-4707/DEL/2011 2 2. THE REVENUE HAS RAISED THE FOLLOWING MATERIAL OF APPEAL:- (I) THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.2,55,000/- MADE ON ACCOUNT OF GIFT RECEIVED FROM HIS BROTHER BY ACCEPT ING THE AFFIDAVIT OF THE DONER, WITHOUT APPRECIATION THE FA CTS OF CASE. (II) THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN DELETING THE ADDITIONS OF RS. 4,00,000/- MA DE ON ACCOUNT OF BOGUS SALE AGREEMENT BY ACCEPTING THE PL EA OF THE ASSESSEE, ACTUALLY SH. HARI CHAND IS NOT A MAN OF MEANS AND HE HAS NO BANK ACCOUNT ANY WHERE. (III) THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN DELETING THE ADDITIONS OF RS. 2,50,000/- MA DE ON ACCOUNT OF TAKEN BACK FROM HIS FATHER BY ACCEPTING THE AFFIDAVIT OF ASSESSEES FATHER, WITHOUT ANY COGENT REASONS. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFUL LY PERUSED THE ENTIRE RECORD AVAILABLE INCLUDING THE PAPER-BOOK(S) FILED BEFORE US. 4. THE FIRST GROUND OF THE REVENUES APPEAL RELATES TO DELETION OF AN ADDITION OF RS. 2,55,000/- MADE ON ACCOUNT OF BOGUS GIFT RECEIVED BY THE ASSESSEE FROM HIS REAL BROTHER. BRIEFLY STATED, TH E FACTS LEADING TO THIS APPEAL ARE THAT THE ASSESSEE IS RUNNING A KIRYANA-GOODS-SH OP ON RETAIL BASIS BEING A PROPRIETOR OF DHINGRA KIRYANA STORE. FOR THE YEAR 2008-09, HE HAS DECLARED TOTAL INCOME OF RS. 1,05,500/- UNDER THE PROVISION OF SECTION 44AF OF THE ACT. THE ASSESSEE WAS NOT REQUIRED TO MAINTAIN BOO KS OF ACCOUNTS AS PER RULES BUT HE HAS A BANK ACCOUNT WITH THE INDUSIND B ANK, IN WHICH AMOUNT TOTALING TO RS. 14,05,200/- HAVE BEEN DEPOSITED, ON VARIOUS DATES FALLING DURING THE RELEVANT YEAR. THE ASSESSEE WAS ASKED T O EXPLAIN THE SOURCE OF EACH OF THE CREDIT ENTRY AND PURPOSE OF WITHDRAWALS IN AND FROM THIS ACCOUNT. THE ASSESSING OFFICER HAS ACCEPTED THE CONTEN TION REGARDING A SUM OF I.T.A .NO.-4707/DEL/2011 3 RS. 2,52,441/- WHICH WAS STATING TO BE SOURCED FROM A RECEIPT OF MATURITY AMOUNT FROM KISAN VIKAS PATRA. HOWEVER, THREE AMOU NTS NAMELY, CLAIMED AS GIFT OF RS. 2,55,000/- FROM SH. MUNISH KUMAR, HI S BROTHER; RECEIPT OF RS. 4,00,000/- AS PER AN AGREEMENT FOR SALE OF A PI ECE OF LAND TO ONE SH. HARI CHAND; AND A SUM OF RS. 2,50,000/- ALLEGEDLY TAKEN BACK FROM SH. ATTAR CHAND, HIS FATHER HAVE NOT BEEN ACCEPTED AS PROPERL Y EXPLAINED BY ASSESSING OFFICER. THE FOLLOWING EXCERPTS FROM PAGE 2 OF TH E ORDER OF CIT(A) EXHIBITS REASONS AS TO WHY THE ASSESSING OFFICER HA S NOT ACCEPTED THE CONTENTION OF THE ASSESSEE QUA THESE AMOUNTS:- (I) GIFT OF RS.2,55,000/- FROM SH. MUNISH KUMAR, BROTH ER HE IS NOT AN IT ASSESSEE. AN AFFIDAVIT CONFIRMING THE GIFT WAS FILED. THE ASSESSING OFFICER HELD THAT IN THE ABSENCE OF EVIDENCE, THE CAPACITY OF SH. MUNISH KUMAR TO GI VE THE GIFT IS NOT VERIFIABLE AND FURTHER HE WAS NOT PRODU CED FOR EXAMINATION. (II) RECEIPT OF RS. 4.00 LACS ON ACCOUNT OF AGREEMENT DOR SALE OF LAND OF SH. HARI CHAND THE AGREEMENT IS DATED 23.02.2008 AND TIME FOR REGISTRY IS UPTO 31.12.2010 , ABOUT 25 MONTHS, WHICH IS ABNORMAL. THE TOTAL SALE CONSIDERATION IS RS. 6.00 LACS WHEREAS THE ADVANCE RECEIVED WAS SHOWN AS RS. 4.00 LACS, WHICH IS NOT RELIABLE. IN THE STATEMENT RECORDED BY THE AO, SH. HARI CHAND FAILED TO EXPLAIN THE SOURCE OF THE AMOUNT GI VEN TO THE APPELLANT AND FURTHER HE HAS NO BANK A/C. (III) RS. 2,50,000/- TAKEN BACK FROM SH. ATTA R CHAND, FATHER- THE APPELLANT FILED HALPHIYA BAYAN OF HIS FATHER WHERE IT WAS STATED THAT HE HAS TAKEN RS. 2.50 LACS FROM HIS SON, SH. ASHOK KUMAR, FOR THE PURCHASE OF LAND AND AS THEDEAL DID NOT MATERIALIZE, THE SAID AMOUNT WAS RE TURNED ON DIFFERENT DATES. THE AO HELD THAT THIS DECLARAT ION IS NOT GENUINE AS THE SAME WAS PREPARED ON 15.11.2010, AFTER THE SELECTION OF CASE FOR SCRUTINY. THE APPE LLANT HAS NOT STATED FROM WHICH BANK A/C THE SAID AMOUNT WAS GIVEN TO HIS FATHER AND ON WHAT DATE. FURTHER, IT IS NOT I.T.A .NO.-4707/DEL/2011 4 BELIEVABLE THAT THE APPELLANT SHOWING INCOME ONLY O F RS. 1,05,500/- IS IN A POSITION TO GIVE RS. 2.50 LACS T O HIS FATHER. ACCORDINGLY, THE ASSESSING OFFICER HAS ADDED TOTAL SUM OF RS. 11,52,759/- TO THE RETURNED INCOME. 5. AGGRIEVED, THE ASSESSEE FILED APPEAL AND LD. CIT (A) HAS DELETED ALL THE THREE ADDITIONS ON THE FORCE OF EVIDENCE WHICH WERE FILED BEFORE BUT IGNORED BY THE ASSESSING OFFICER WITHOUT ANY PLAUSIBLE REAS ONS. 6. AFTER COGITATING ENTIRE RECORD VIS-A-VIS THE ORA L SUBMISSION OF THE PARTIES, WE GIVE OUR FINDING IN THE FOLLOWING PARAS . ADDITION OF RS. 2,55,000/-, CLAIMED AS GIFT BY THE ASSESSEE TO HAVE BEEN RECEIVED FROM HIS REAL BROTHER, WHO HAS ALSO CONFIRMED THE SAME B Y FILING HIS DULY SWORN IN AFFIDAVIT, WAS SIMPLY MADE DOUBTING THE GENUINITY O F THE GIFT MAKING CAPACITY OF THE DONOR AS A BASIS. THE CONTENTION O F LD. AR THAT AFTER FILING AFFIDAVIT, NO FURTHER EVIDENCE WAS ASKED FROM ASSES SING OFFICERS SIDE, IS FOUND TO BE CORRECT. IT WAS SUBMITTED THAT ASSESSI NG OFFICER NEVER ASKED THE ASSESSEE TO PRODUCE HIS BROTHER IN PERSON AND THIS FACT COULD NOT BE CONTROVERTED BY THE REVENUE. AT THE TIME OF HEARIN G, LD. DR COULD NOT DESTABILIZE THE FINDING OF LD. CIT(A) INASMUCH AS T HAT SH. MUNISH KUMAR, THE REAL BROTHER OF THE ASSESSEE, MADE A TOTAL GIFT OF RS.2,55,000/- ON DIFFERENT DATES AFTER WITHDRAWALS FROM HIS BANK ACC OUNT JOINTLY OPENED IN PNB WITH HIS WIFE. THE DEPOSITS BEING OUT OF THE RETIREMENT BENEFITS, PENSION, PAST SAVINGS ETC. THE OCCASION FOR MAKIN G THIS GIFT THAT THE I.T.A .NO.-4707/DEL/2011 5 ASSESSEE WAS FACING GREAT FINANCIAL HARDSHIP DUE TO LOSS IN SHARES, IS NOT FOUND TO BE UNNATURAL. THE AFFIDAVIT FILED BY SH. MUNISH KUMAR WAS ACCOMPANIED BY HIS BANK STATEMENT. THE OBSERVATION OF THE ASSESSING OFFICER IN HIS ORDER THAT THE ASSESSEE FAILED TO PR ODUCE HIS BROTHER FOR EXAMINATION, WAS FOUND TO BE EXPLAINED BECAUSE ASSE SSING OFFICER NEVER ASKED FOR THE SAME AND THE LD. CIT(A) HAS CORRECTLY MADE SUCH AN OBSERVATION. THE BROTHER OF THE ASSESSEE WAS A GOV ERNMENT EMPLOYEE AND AFTER RETIREMENT WAS GETTING PENSION. IN OUR CONSI DERED OPINION, THE HELP BY WAY OF GIFT, BY A REAL BROTHER WHEN OTHER BROTHER I S IN TROUBLE CONSTITUTES A GOOD OCCASION. THE SOURCE OF GIFT ALSO STANDS PROV ED ON RECORD. AS A RESULT, WE CONFIRM THE FINDINGS OF LD. CIT(A) AND CANNOT AC CEPT THE APPEAL ON THIS GROUND. 7. THE NEXT AMOUNT OF RS. 2,50,000/-, ALLEGEDLY REP AID BY HIS FATHER, SH. ATTAR CHAND, WHO IS AN AGRICULTURIST, IS ALSO FOUND TO BE CORRECTLY DELETED BY CIT(A). THE ARGUMENT OF LD. AR THAT ASSESSEE HAD G IVEN RS.2,50,000/- OUT OF HIS SAVINGS FROM BUSINESS OF KIRYANA WHICH HE WA S CARRYING ON FOR THE LAST 20 YEARS AND HAD BEEN FILING INCOME-TAX RETURN S REGULARLY, OUGHT NOT BE DIS-BELIEVED ONLY BECAUSE THE EXACT DATE OF GIVING AND TAKING BACK THE AMOUNT COULD NOT BE MENTIONED. THIS FACT OF PAYMEN T AND REPAYMENT HAS BEEN ADMITTED BY HIS FATHER. RATHER THE AMOUNT WAS GIVEN BY THE ASSESSEE TO HIS FATHER AND DATE OF RECEIPT BY THE ASSESSEE ARE CLEARLY FOUND MENTIONED IN THE AFFIDAVIT FILED BY SH. ATTAR CHAND. LD. DR COU LD NOT IMPROVE THE CASE OF I.T.A .NO.-4707/DEL/2011 6 THE REVENUE BY MAKING ANY FURTHER SUBMISSIONS. IN FACT, THE ASSESSING OFFICER HAS COME TO HIS CONCLUSION ON THE BASIS WRO NG PERCEPTION OF FACTS. THEREFORE, WE DONT FIND ANY MERIT IN THIS SECOND G ROUND OF REVENUES APPEAL AS WELL. 8. THE LAST ISSUE IS REGARDING DELETION OF RS. 4,00 ,000/- WHICH WAS ALLEGEDLY RELATED RECEIPT ON A/C OF SALE AGREEMENT (OF AGRICULTURAL LAND) ENTERED INTO BETWEEN THE ASSESSEE AND ONE OF SH. HA RI CHAND. SH. HARI CHAND WAS PRODUCED BEFORE ASSESSING OFFICER AND HIS STATEMENT WAS RECORDED ON OATH BY ASSESSING OFFICER. HE HAS ADM ITTED THAT HE HAD ADVANCED MONEY IN CASH. IN RELATION TO THIS SALE A GREEMENT. SH. HARI CHAND HAS ALSO STATED THAT HIS FAMILY OWNED ABOUT 31 ACRE S OF AGRICULTURAL LAND AND THIS ADVANCE WAS OUT OF HIS SAVINGS FROM AGRICULTUR AL INCOME. A COPY OF THE SALE AGREEMENT WAS FILED BUT THE ASSESSING OFFICER HAS DOUBTED THE VERACITY OF THIS AGREEMENT BECAUSE A VERY LONG DATE HAS BEEN GIVEN FOR GETTING THE SALE DEED REGISTERED. THE CONTENTION OF THE ASSESS EE THAT THE LONG DATE WAS GIVEN ONLY BECAUSE THE PURCHASER WANTED TO SELL THE LAND DIRECTLY TO THE PROSPECTIVE BUYERS IN ORDER TO SAVE STAMP DUTY EXPE NSES TIME AND AGAIN, WAS DECLINED BY ASSESSING OFFICER BUT HAS BEEN ACCEPTED BY LD. CIT(A). 9. SIMILAR ARGUMENTS HAVE BEEN TAKEN BY BOTH THE PA RTIES BEFORE US. WE HAVE CIRCUMSPECTED THE COPY OF SALE AGREEMENT IN TH E AGRICULTURAL LAND, THE STATEMENT OF SH. HARI CHAND. WE HAVE CONSIDERED TH E CLARIFICATION GIVEN REGARDING LONG DATE FOR REGISTRATION OF SALE DEED. ALL THESE EVIDENCES I.T.A .NO.-4707/DEL/2011 7 CUMULATIVELY GO TO PROVE THE STAND TAKEN BY THE ASS ESSEE. ACCORDINGLY, WE DO NOT FIND ANY REASON EVEN FOR INTERFERING IN THIS FINDING OF LD. CIT(A). 10. AS A RESULT, ALL THE THREE ISSUES RAISED IN THI S APPEAL, STAND DISMISSED. 11. ACCORDINGLY, THE APPEALS OF THE REVENUE AS WELL AS CROSS-OBJECTION ARE DISMISSED. SD/- SD/- (A.N.PAHUJA) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31/08/2012 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI