MEETA H. GANDHI, MUMBAI V. ITO WD 21(3)(3), MUMBAI

ITA 5350/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1403 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-07-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 18-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'SMC' BENCH, MUMBAI BEFORE SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 5350/MUM/2009 (ASSESSMENT YEAR: 2004-05) SMT. MEETA H. GANDHI INCOME TAX OFFICER - 21(3)(3) KALPATARU RESIDENCY, TOWER - A PRATYAKSHAKAR BHAVAN FLAT NO. 82, KAMANI MARG VS. BANDRA-KURLA COMPLEX, BANDRA SION (E), MUMBAI 400022 MUMBAI PAN - ACRPG 0806 D APPELLANT RESPONDENT APPELLANT BY: SHRI C.V. JAIN RESPONDENT BY: SHRI S.K. SINGH O R D E R PER A.L. GEHLOT, A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)- XXI, MUMBAI DATED 23.07.2009. THE EFFECTIVE GROUND RAISE D BY THE ASSESSEE IS IN RESPECT OF ADDITION OF RS.2,50,000/- ON ACCOUNT OF GIFT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE D ERIVED INCOME FROM COMMISSION, JOB WORK CHARGES, INTEREST AND REMUNERA TION FROM PARTNERSHIP FIRM AND INCOME FROM OTHER SOURCES. THE ASSESSEE FI LED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,59,752/-. DURING THE ASSESSMENT PROCEEDINGS THE A.O. NOTICED THAT THE ASSESSEE HAS CREDITED RS. 2,50,000/- IN HER CAPITAL ACCOUNT ON ACCOUNT OF GIFT RECEIVED. THE A.O. ASKED THE ASSESSEE TO PRESENT THE DONOR ON 24.11.2006 BUT THE SAME WAS NOT PRODUC ED. THE A.O. NOTED THAT THE ASSESSEE FILED A GIFT DECLARATION, COPY OF I.T. RETURN, CAPITAL ACCOUNT AND BALANCE OF THE DONOR FOR A.Y. 2004-05 BUT BANK ACCOUNT OF THE DONOR WAS NOT FURNISHED. ON PERUSAL OF DONORS BALANCE SH EET AND P & L ACCOUNT THE A.O. NOTICED THAT THE GROSS INCOME EARNED BY TH E DONOR DURING A.Y. 2004-05 WAS RS.81,231/-. THIS INCOME WAS EARNED FRO M INTEREST. THE DONOR DID NOT HAVE ANY SOURCE OF INCOME OTHER THAN INTERE ST. IN THE ABSENCE OF NON-PRODUCTION OF DONOR AND BANK STATEMENT OF THE D ONOR THE A.O. HELD THAT THE DONOR DID NOT HAVE CAPACITY TO MAKE THE ALLEGED GIFT IN THE NATURAL COURSE. THEREFORE, THE ASSESSEE HAS NOT DISCHARGED THE ONUS CAST UPON HER ITA NO. 5350/MUM/2009 SMT. MEETA H. GANDHI 2 OF PROVING THE CAPACITY OF THE DONOR TO MAKE THE AL LEGED GIFT AND THE GENUINENESS OF THE GIFT. THE A.O. MADE THE ADDITION OF RS.2,50,000/-, WHICH HAS BEEN CONFIRMED BY THE CIT(A). 3. WE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE RECORD. 4. THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE HAS FI LED A LETTER DATED 2 ND JULY 2009 BY THE DONOR ADDRESS TO THE A.O. AT THE TIME OF REMAND PROCEEDINGS STATING THAT THE DONOR VISITED THE ASSE SSING OFFICERS OFFICE AT 10.30 A.M. ON 30 TH JUNE 2009 AND WAITED TILL 11.30 A.M. HOWEVER, IT W AS INFORMED TO THE DONOR THAT THE A.O. WILL NOT COME T O THE OFFICE. THEREFORE SHE LEFT THE OFFICE. HE FURTHER SUBMITTED THAT THE ASSE SSEE IS WILLING TO PRODUCE THE DONOR BEFORE THE A.O. HE FURTHER SUBMITTED THAT THE ASSESSEE WILL FURNISH OTHER DETAILS ALSO IN SUPPORT OF HER CLAIM. 5. AFTER HEARING THE LEARNED D.R. WE FIND IT PROPER TO SEND BACK THIS MATTER TO THE FILE OF THE A.O. WITH THE DIRECTION T O EXAMINE THE DONOR AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH THE LAW AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JULY 2010. SD/- (A.L. GEHLOT) ACCOUNTANT MEMBER MUMBAI, DATED: 6 TH JULY 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXI, MUMBAI 4. THE CIT XXI, MUMBAI CITY 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.