Pratibhaben P. Pujara, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(2), RAJKOT-GUJARAT

ITA 5/RJT/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2261 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-01-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 01-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S ANJARIA
• Keywords: Unexplained cash credit; Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: S H RI S. S. GODARA , JUDICIAL MEMBER AND SHR I MANISH BO RAD , ACCOUNTANT MEMBER [CONDUCTED THROUG H E - COURT AT AHMEDABAD] PRATI B HABEN P PUJARA, BB HOUSE, 5 - COLLEGE WADI, NE A R KATHIYAWAD GYMKHANA, RAJKOT - 360001 PAN: ADPPP6035Q (APPELLANT) VS THE ITO, WARD - 1(2), RAJKOT (RESPONDE NT) REVENUE BY : S H RI C.S. ANJARIA , D . R. ASSESSEE BY: S H RI SAMIR BHUPTANI , A.R. DATE OF HEARING : 04 - 01 - 2 016 DATE OF PRONOUNCEMENT : 23 - 02 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THI S ASSESSEE S APPEAL FOR A.Y. 2004 - 05 , AR ISES FROM ORDER OF THE CIT(A) - II, RAJKOT DATED 2 5 - 10 - 2013 IN APPEAL NO. CIT(A) - II / RJT/T 73 0 /09 - 10, IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 196 1; IN SHORT THE ACT . I T A NO . 0 5 / RJT /20 14 A SSESSMENT YEAR 200 5 - 06 I.T.A NO. 05 /RJT /20 14 A.Y. 200 5 - 06 PAGE NO PRATIBHABEN P PUJARA VS. ITO 2 2. THE ASSESSEE S SOLE SUBSTANTIVE GROUND CHALLENGES THE ACTION OF BOTH THE LOWER AUTHORITIES MAKING SECTION 68 ADDITION OF UNEXPLAINED CASH CREDIT OF RS. 6 LACS THEREBY REJECTING HER CLAIM OF HAVING RECEIVED TWO GIFTS OF RS. 4,20, 000/ - AND RS. 1,80,000/ - FROM TWO DONOR S SHRI TUSAR N. MASHUR AND SHRI KISHOR P. ZALA; RESPECTIVELY . SHE DERIVES INTEREST AND INCOME FROM A PARTNERSHIP FIRM. THE ASSESSING OFFICER NOTICED HER TO HAVE RECEIVED ABOVE STATED TWO GIFTS . THE ASSESSEE WOULD S UBMIT COPY OF GIFT DEED, DONOR S PASSPORT AND A COPY OF LETTER ISSUED BY THE CENTRAL BANK, JAMNAGAR IN RESPECT OF THE LATTER DONOR AND A DEMAND DRAFT ZEROX COPY PERTAINING TO TH E FORMER AMOUNTING TO RS. 4,20,000/ - . SHE ALSO APPEARS TO HAVE GOT RECORDED HER STATEMENT ON OATH DATED 14 - 12 - 2007. THE ASSESSING OFFICER PUT SPECIFIC QUERIES. THE ASSESSEE REPLIED THAT THE FORMER DONOR WAS A UGANDAN NATIONAL. SHE STATED HER AGE TO BE 36 YEARS. HER STAND QUA LATTER DONOR WAS THAT HE WAS DUBAI BASED NRI OF 45 YEAR S OF AGE. THE ASSESSING OFFICER OBSERVED THAT HER STATEMENT DID NOT THROW LIGHT ON THEIR INDIAN ADDRESSES. NOR COULD SHE TELL ABOUT THEIR EDUCATIONAL QUALIFICATIONS. HE WAS OF THE VIEW THAT HER STATEMENT CLAIMING BOTH THE DONORS TO BE HER DECEASED HUSBA ND FRIEND WAS ALSO NOT FOUND CREDITWORTHY. THE ASSESSING OFFICER ACCORDINGLY REJECTED HER GIFT PLEA THEREBY ADDING IMPUGNED GROSS SUM OF RS. 6 LACS U/S. 68 OF THE ACT IN THE NATURE OF UNEXPLAINED CASH CREDIT. 3. THE ASSESSEE PREFERRED APPEAL. SHE REIT ERATED HER STAND ADOPTED BEFORE THE ASSESSING OFFICER. AND THAT DONOR S PASSPORTS I.T.A NO. 05 /RJT /20 14 A.Y. 200 5 - 06 PAGE NO PRATIBHABEN P PUJARA VS. ITO 3 W E RE VALID WORLDWIDE AS PROOF OF IDENTITY. SHE SOUGHT REVERSAL OF ASSESSING OFFICER S FINDINGS TO BE BASED ON MERE TECHNICAL APPROACH. THE CIT(A) FORWARDED HER SUBMISSION TO THE ASSESSING OFFICER FOR A REPORT. THE SAME WAS FILED ON 15 - 10 - 2012. THE ASSESSING OFFICER REPORTED THAT FORMER DONOR HAD A BANK ACCOUNT WITH CORPORATION BANK SHOWING CREDIT ENTRY OF RS. 9,15,525/ - AND THERE WAS CORRESPONDING WITHDRAWN ENTRY BY WAY OF DD FAVOURING ASSESSEE AND THEREFORE, THIS PLEA SEEMED ACCEPTABLE. HE CAME TO THE LATTER DONOR. THIS CASE INVOLVED A WITHDRAWAL ENTRY IN BANK ACCOUNT IN ASSESSEE S NAME. THE ASSESSING OFFICER ACCORDINGLY OBSERVED THAT THE ASSESSEE HAD GIVEN FORMER DON OR S ADDR ESS TO BE IN JAM NAGAR WITHOUT ANY TELEPHONE DETAILS. THE LATTER DONOR S ADDRESS OR PHONE NO. WAS NOT FOUND TO HAVE BEEN SUBMITTED. THE ASSESSING OFFIC ER REJECTED ASSESSEE S EXPLAINATION PRODUCING ON RECORD FOUR PHOTOGRAPHS OF PETROL PUMPS ON THE GROUND THAT THERE WAS NO LINKAGE PROVED WITH THE ABOVE STATED DONORS. THE CIT(A) CONFRONTED ASSESSEE WITH THIS REMAND REPORT. THE ASSESSEE APPEARS TO HAVE F ILED A REJOINDER THERETO. THE C IT(A) TAKES NOTICE OF THE DONOR S GIFT DECLARATION AND OBSERVES T HAT THE CRUCIAL EXPRESSION USED THEREIN IN FORMER CASE IS HIM AND NOT HER. HE CONSIDERS THE FACTS OF THE ENTIRE CASE FOR UPHOLDING THE ASSESSING OFFICER S ACTION IN REJECTING THE IMPUGNED GIFT CLAIM. THIS LEAVES THE ASSESSEE AGGRIEVED. 4. WE HAVE HEAR D BOTH THE PARTIES. RELEVANT FACTS NARRATED HEREINABOVE ARE NOT REPEA T ED FOR THE SAKE OF BREVITY. THE INSTANT APPEAL INVOLVES ASSESSEE S CLAIM OF HAVING RECEIVED GIFTS OF RS. I.T.A NO. 05 /RJT /20 14 A.Y. 200 5 - 06 PAGE NO PRATIBHABEN P PUJARA VS. ITO 4 4,20,000/ - AND RS. 1,80,000/ - FROM THE TWO DONORS STATED HEREINABOVE . WE COME TO ASSESSING OFFICER S REMAND REPORT FIRST. IT IS TO BE SEEN FROM PARA NO. 2 THAT HE HIMSELF HOLDS THAT THE ASSESSEE S CONTENTION QUA THE FORMER GIFT CLAIM OF RS. 4,20,000/ - RECEIVED FROM SHRI TUSHAR MASH U R SEEMS ACCEPTABLE. WE NOTICE THAT THIS CRUCIAL F ACT HAS ESCAPED CIT(A) S CONSIDERATION IN THE LOWER APPELLATE ORDER. WE ARE OF THE VIEW THAT ONCE THE ASSESSING OFFICER S REMAND REPORT HAS UPHELD ASSESSEE S CLAIM AFTER EXAMINING ALL RELEVANT RECORDS AND EVIDENCE, THERE IS NO SCOPE OF FURTHER PUTTING THE SAME TO SCRUTINY . WE ACCEPT ASSESSEE S ARGUMENT QUA FORMER GIFT CLAIM OF RS. 4,20,000/ - . 5. WE COME TO THE LATTER DONOR SHRI KISHOR P. ZALA INVOLVING THE IMPUGNED SUM OF RS. 1,80,000/ - . THERE IS NO DISPUTE THAT THE ASSESSEE HAS RECEIVED THE IMPUGNED SUM THROUGH BANKING CHANNEL. COPIES OF THE RELEVANT PASSPORT, GIFT DEED ETC. HAVE ALREADY BEEN FILED BEFORE THE LOWER AUTHORITIES. WE REPEAT THAT THERE IS NO DISPUTE ABOUT IDENTITY OF THE ABOVE STATED DONORS. WE FIND FROM ASSESSMENT ORDER THAT THE ASSES SING OFFICER HAS DISCUSSED AS TO HOW THE ASSESSEE HAS FAILED TO TELL THE CORRECT ADDRESSES AND THE DONORS AGE. WE DEEM IT APPROPRIATE TO OBSERVE THAT BOTH THESE FACTORS ARE RELEVANT FOR IDENTITY ISSUE WHICH ALREADY STANDS PROVED BY FURNISHING OF DONORS P ASSPORT . THIS IS NOT THE REVENUE S CASE THAT IT HAD ASKED THE ASSESSEE TO PRODUCE THE DONOR IN QUESTION WHICH SHE FAILED. ALL TH E SE FACTS AND CIRCUMSTANCES LEAD US TO CONCLUDE THAT THE ASSESSEE HAS BEEN ABLE TO PROVE THAT THIS LATTER DONOR IS HER DECEASE D HUSBAND S FRIEND WHO I.T.A NO. 05 /RJT /20 14 A.Y. 200 5 - 06 PAGE NO PRATIBHABEN P PUJARA VS. ITO 5 HAS GIFTED HER THE IMPUGNED SUM OF RS. 1,80,000/ - BY WAY OF BANKING CHANNEL. WE REVERSE ACTION OF BOTH THE LOWER AUTHORITIES IN ADDING THE IMPUGNED SUM OF RS. 1,80,000/ - BY ADOPTING A HYPER - TECHNICAL APPROACH. THERE CAN HARDLY BE A NY DISPUTE THAT SUCH A GIFT ISSUE HAS TO BE ADJUDICATED AS PER PECULIAR FACTS OF EACH AND EVERY CASE ON THE ASPECT OF LOVE AND AFFECTION/IDENTITY, GENUINENESS AND CREDITWORTH INESS. WE ACCEPT THE SOLE SUBS TANTIVE GROUND BASED IN THE INSTANT APPEAL ACCORDIN GLY. 6. THIS ASSESSEE S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 23 - 02 - 201 6 SD/ - SD/ - (MANISH BORAD ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 23 /02 /20 16 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT