Sh. Rajeev Goyal, New Delhi V. ITO, New Delhi

ITA 5081/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3531 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 17-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 26-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI CHAUDHURI
• Assessee Lawyers: UMESH GUPTA
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.5081/DEL/2016 ASSESSMENT YEAR 2011-12 MR. RAJEEV GOYAL, FLAT NO.226, POCKET A-4, KONARK APARTMENTS, KALKAJI EXTENSION, NEW DELHI. PAN: AHJPG 8283Q VS. ITO, WARD-48(3), NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : MS. BEDOBANI CHAUDHURI, SR.D.R. ASSESSEE(S) BY : SHRI UMESH GUPTA, CA. / DATE OF HEARING : 17/04/2017 / DATE OF PRONOUNCEMENT: 18/04/2017 ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F LEARNED CIT(A)- XXVIII, NEW DELHI DATED 15.06.2016 FOR ASSESSMENT Y EAR 2011-12. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS BE CAUSE THE FACTS HAVE BEEN IGNORED AND THE ORDER HAS BEEN PASSED WITH A BIASED MIND AN D ACCORDINGLY, IT DESERVES TO BE QUASHED. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS W HEREAS NOTICE U/S.143(2) WAS NOT SERVED ON THE ASSESSEE WITHIN STIPULATED TIME PERIO D ACCORDINGLY WHOLE ASSESSMENT PROCEEDINGS U/S.143(3) ARE BAD IN LAW AND ASSESSMEN T ORDER DESERVES TO B QUASHED. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS AN D UNDER THE CIRCUMSTANCES OF THE CASE IN NOT ALLOWING THE COMPLETE HRA EXEMPTION AS MENTIONED IN FORM 16 OF THE ASSESSEE. 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS AN D UNDER THE CIRCUMSTANCES OF THE CASE IN UPHOLDING THE ADDITIONS AMOUNTING TO RS.5 L ACS U/S.68 OF THE INCOME TAX ACT, TREATING THE SAME AS UN-EXPLAINED GIFT, WHEREAS THI S IS GIFT FROM THE ASSESSEE MOTHER. 3. THE LEARNED AR HAS NOT PRESSED GROUND NO.3 AND T HE SAME IS DISMISSED AS NOT PRESSED. ITA NO.5081/DEL/2016 2 4. GROUND NO.1 IS GENERAL IN NATURE, THEREFORE, DOE S NOT REQUIRE ANY ADJUDICATION. 5. AS REGARDS GROUND NO.2, LEARNED COUNSEL FOR THE ASSESSEE ARGUED THAT NOTICES DATED 1.8.2012 AND 17.08.2012 WERE NEVER RE CEIVED TO THE ASSESSEE BEFORE THE DUE DATE, I.E., 30 TH SEPTEMBER, 2012 AND AS PER INTERNET REPORT ON RECORD THE DELIVERY WAS BOOKED BY THE DEPARTMENT ON 30 TH MARCH, 2016 AVAILABLE AT PAPER BOOK 95 WHEREAS IN THE SECOND NO TICE CONSIGNMENT DETAILS WERE NOT AVAILABLE WITH THE POST OFFICE. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE ARGUED THAT NOTICE HAVING NOT BEING SE RVED ON THE ASSESSEE, THEREFORE, THE AO DOES NOT ACQUIRE THE JURISDICTION TO MAKE THE ASSESSMENT U/S.143(3) OF THE ACT AND SAME IS REQUIRED TO BE QU ASHED. 6. LEARNED DR, ON THE OTHER HAND, ARGUED AND POINTE D OUT THE REMAND REPORT OF THE AO AT PAGES 3 AND 4 OF THE LEARNED CI T(A) WHERE IT IS RECORDED THAT NOTICES DATED 01.08.2012 AND 17.08.2012 WERE S ENT THROUGH SPEED POST ARTICLE NUMBERS WERE MENTIONED ON THE ADDRESSES OF MOHALI ROPAR, PUNJAB AND ALSO NEW DELHI. THESE NOTICES WERE UNCOMPLIED W ITH BUT LATER ON THE NOTICES SENT WERE DULY SERVED UPON THE ASSESSEE AND ASSESSEE RESPONDED FROM TIME TO TIME AND SHE POINTED OUT THE ORDER OF THE AO IN PARAGRAPH 2 WHICH IS REPRODUCED HEREINBELOW. 2. THE CASE WAS SELECTED FOR SCRUTINY. NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 01.08.2012 AND WAS DULY SERVED ON THE ASSESSEE. SUBSEQUENTLY, NOTICE U/S.142(1) OF THE ACT ALONGWITH QUESTIONNAIRE WERE ISSUED. IN RESPONSE, THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS FROM T IME TO TIME AND FILED THE REQUISITE DETAILS AND PRODUCED THE REQUISITE DOCUME NTS CALLED FOR. THE DOCUMENTS PRODUCED AND VERIFIED ON TEST CHECK BASIS AND THE C ASE WAS DISCUSSED IN DETAILS. 7. FROM THE PERUSAL OF THE RECORD AND THE ARGUMENT OF THE PARTIES, IT IS EVIDENT THAT THE ASSESSEE HAS BEEN SERVED NOTICES A T THE RIGHT ADDRESS AS ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEED INGS AND REQUISITE DETAILS HAVE BEEN PRODUCED AND NO OBJECTION IN THAT REGARD HAS BEEN RAISED BEFORE ITA NO.5081/DEL/2016 3 THE AO IN THIS REGARD. ACCORDINGLY THE LEGAL GROUND RAISED IN GROUND NO.2 IS DISMISSED. 8. AS REGARDS GROUND NO.4, THE BRIEF FACTS OF THE C ASE ARE THAT THE ASSESSEE HAS CLAIMED TO RECEIVE A SUM OF RS.5 LAC FROM HIS M OTHER MRS. DAYAWATI WHO HAS DEPOSITED CASH IN HER BANK ACCOUNT AND ISSU ED THE CHEQUE TO THE ASSESSEE. THE MOTHER IS NOT THE INCOME TAX ASSESSEE WHICH THE ASSESSEE CLAIMS THAT SHE IS BELOW TAXABLE LIMITS AND EDUCATE D. 9. THE AO NOT BEING SATISFIED WITH THE EXPLANATION TREATED THE SAME AS UNEXPLAINED GIFT AND ADDED BACK U/S.68 OF THE ACT, WHICH ACTION OF THE AO CONFIRMED BY THE LEARNED CIT(A). 10. LEARNED COUNSEL FOR THE ASSESSEE COULD NOT BRIN G ON RECORD THE GENUINENESS OF THE TRANSACTION OR CREDITWORTHINESS OF THE CREDITOR TO PROVE THAT IN FACT THE MOTHER OF THE ASSESSEE WAS CAPABLE OF DEPOSITING RS.5 LAC IN HER BANK ACCOUNT. PROVING ONLY THE IDENTITY AND NOT THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION WILL GO TO PROVE THA T THE SAID TRANSACTION IS JUST AN ACCOMMODATION ENTRY AND IS UNEXPLAINED AND HAS RIGHTLY BEEN TREATED BY THE AO AS UNEXPLAINED DEPOSIT BY THE ASSESSEE AN D I FIND NO INFIRMITY IN THE ORDER OF LEARNED CIT(A) WHO HAS RIGHTLY CONFIRM ED THE ACTION OF THE AO. THUS, GROUND NO.4 OF THE ASSESSEE IS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 18 TH APRIL, 2017 SD/- (B.P. JAIN) ACCOUNTANT MEMBER DATED: 18/04/2017 PRABHAT KUMAR KESARWANI, SR.P.S.