Rahul Mohinder (HUF), Kolkata V. ITO, Ward - 29(4), Kolkata

ITA 55/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2548 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 14-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 15-01-2009
• Court: TRIBUNAL
• Department Lawyers: M HUSSAIN
• Assessee Lawyers: M D SHAH
• Keywords: Gift; Source of fund; Set aside

Judgement Text

, SMC , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - SMC , KOLKATA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND / I.T.A.NO. 53,54 AND 55 /KOL/2009 / ASSESSMENT YEAR S 2005 - 06 1. BDKL MOHINDER & SONS HUFC/O. D.J.SHAH & CO., KALYAN BHAVAN, 2 ELGIN ROAD, KOLKATA 700 020. PAN AACHB 3904 N 2. VINAY MOHINDER HUF AADHV 5334 F (ADDRESS AS ABOVE) 3. RAHUL MOHINDER HUF PAN AAHHR 4958 M (ADDRESS AS ABOVE) - - - VERSUS - . INCOME - TAX OFFICER, WARD 29(4), KOLKATA. ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI M.D.SHAH, AR / FOR THE RESPONDENT : / SHRI M.HUSSAIN, DR / ORDER . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. THESE THREE APPEALS FILED BY THREE DIFFERENT ASSESSEES FOR THE ASSESSMENT YEAR 2005 - 06 AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME - TAX (APPEALS) XVI, KOLKATA OF EVEN DATED THE 24 TH OCTOBER, 2008, RAISE A COMMON ISSUE RELATING TO CONFIRMATION OF ADDITION U/S.68 OF THE INCOME - TAX ACT,1961 DISALLOWING THE CLAIM OF GIFT. SINCE THE ASSESSEES ARE RELATED AND T HE ARGUMENT RAISED BY BOTH THE REPRESENTATIVES OF THE PARTIES ARE ALS O COMMON IN RESPECT OF ALL THESE THREE APPEALS , THEY WERE HEARD TOGETHER AND DISPOSED OF BY THIS SINGLE ORDER FOR THE SAKE OF CONVENIENCE. 2. THE FACTS IN BRIEF ARE STATED IN RESPECT OF EACH OF THESE THREE ASSESSEES AS UNDER : / I.T.A.NO.53,54 AND 55 /KOL/2009 2 (1) ASSESSEE - BDKL MOHIND ER & SONS HUF T HE ASSESSEE (BDK MOHNIDER & SONS HUF) CLAIMED TO HAVE RECEIVED GIFT OF RS.1,50,000 DURING THE ASSESSMENT YEAR UNDER CONSIDERATION FROM ONE MR. DIPAK PURI. THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE GIFT HAD BEEN GIVEN OUT O F THE SALE PROCE E DS OF SHARES OF M/S.PAWANJIT MARKETING PVT LTD., WHICH MR. PURI HAD SOLD TO ONE M/S.ONKAR MANAGEMENT PVT. LTD. THE ASSESSING OFFICER OBSERVED THAT THE LETTER ISSUED TO MR. DIPAK PURI AT T HE GIVEN ADDRESS WAS RETURNED U NSERVED BY THE POSTAL AUTHORITY WITH THE REMARK NOT KNOWN. ALSO THE LETTER ISSUED TO M/S.ONKAR MANAGEMENT PVT.LTD., WAS RETURNED UNSERVED. THE ASSESSING OFFICER FURTHER OBSERVED THAT SHRI DIPAK PURIS TOTAL INCOME FOR YEAR WAS RS.92,250 OUT OF WHICH DRAWINGS WERE RS.65,670. THEREFORE, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE TRANSACTION WHEN JUDGED IN THE LIGHT OF COMMON HUMAN BEHAVIOR AND PREPONDERANCE OF PROBABILITY WAS BOGUS AND COULD NOT BE TREATED TO BE A GENUINE GIFT. ACCORDINGLY, HE DISALLOWED THE CLAIM OF THE A SSESSEE AND MADE THE ADDITION OF RS.1,50,000 TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEAL, THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER AND HENCE, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. (2) ASSESSEE - VINAY MOHINDER HUF : THE ASSESSEE VINAY MOHINDER HUF CLAIMED TO HAVE RECEIVED GIFTS OF RS.1,00,000 FROM MR.R.AHUJA AND RS.1,50,000 FROM MR. OMI SAPRU. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE DONORS. THE DONORS WERE NOT PRODUCED BUT THE ASSESSEE PRODUCED GIFT D EEDS AND COPY OF ACKNOWLEDGEMENT OF RETURN. THE ASSESSING OFFICER ISSUED LETTERS TO BOTH THE SO CALLED DONORS BUT THEY WERE RETURNED UNSERVED BY THE POSTAL AUTHORITY WITH THE REMARK NOT KNOWN. THE ASSESSEE EXPLAINED THE SOURCE OF FUND OF SHRI SAPRU WAS FROM SALE OF SHARE S OF SHAKUN FINEX PVT. LTD., TO M/S.ONKAR MANAGEMENT PVT. LTD., AND THE / I.T.A.NO.53,54 AND 55 /KOL/2009 3 SOURCE OF FUNDS OF SHRI AHJUA WAS FROM SALE OF SHARES OF M/S.SATYAVAN SALES PROMOTION PVT. LTD., TO M/S.JUPEX DISTRIBUTORS. THE ASSESSING OFFICER OBTAINED BANK STATEM ENTS OF BOTH THE COMPANIES I.E., M/S.ONKAR MANAGEMENT PVT. LTD., AND M/S.JUPEX DISTRIBUTORS. FROM THE SAID ACCOUNTS, THE AO FOUND THAT OUT OF CASH DEPOSIT OF RS.3,00,000 MADE IN THE ACCOUNT OF ONKAR MANAGEMENT, CHEQUES WERE ISSUED TO SHRI DIPAK PURI AND SH RI OMISAPRU WHO IN TURN GAVE GIFTS TO THE HUFS OWNED BY THE MONHIDER FAMILY. HE FURTHER OBSERVED THAT EVENTHOUGH THE DONORS WERE DIFFERENT INDIVIDUALS, ALL THE CHEQUES WERE WRITTEN BY THE SAME PERSON. ALSO HE OBSERVED THAT THE SIGNATURE OF SHRI OMI SAPRU IN THE GIFT DE E D AND IN THE CHEQUE STATED TO BE ISSUED FROM HIS ACCOUNT WERE DIFFERENT. SIMILARLY, CASH WAS DEPOSITED IN THE ACCOUNT OF M/S.JUPEX DISTRIBUTORS FROM WHERE CHEQUE WAS ISSUED TO SHRI AHUJA WHO IN TURN GIFTED THE AMOUNT TO THE ASSESSEE. THE AS SESSING OFFICER FURTHER STATED THAT SHRI AHUJA HAD AN INCOME OF RS.91,500 DURING THE YEAR OUT OF WHICH THE DRAWINGS WERE RS.65,760.SHRI SAPRU HAD AN INCOME OF RS.85,500 OUT OF WHICH THE DRAWINGS WERE RS.65,760. FROM THESE, THE ASSESSING OFFICER CONCLUDED T HAT THE DONORS WERE CONTROLLED BY THE SAME PERSON AND THAT THEY DID NOT HAVE THE CAPACITY TO GIVE THE GIFTS. THEREFORE, THE LEARNED ASSESSING OFFICER DISALLOWED THE CLAIM OF GIFTS OF RS.1,00,000 FROM MR.R.AHUJA AND RS.1,50,000 FROM MR.OMI SAPRU AND MADE T HE IMPUGNED ADDITION TOTALING TO RS.2,50,000 TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEAL, THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER AND HENCE, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. (3) ASSESSEE - RAHUL MOHINDER HUF : THE ASSESSEE RAHUL MOHNIDER HUF CLAIMED TO HAVE RECEIVED GIFTS AMOUNTING TO RS.1,00,000 EACH FROM M/S.SATPAL MAHENDRU,MR.JAGATMOHAN MODI AND MR. OMI SAPRU. ON BEING ASKED, THE ASSESSEE DID NOT PRODUCE THE DONORS BEFORE THE ASSESSING OFFICER. / I.T.A.NO.53,54 AND 55 /KOL/2009 4 BUT THE ASSE SSEE PRODUCED GIFT DEEDS AND COPY OF ACCOUNT OF SHRI OMI SAPRU. HOWEVER, COPIES OF ACCOUNTS OF THE OTHER TWO DONORS WERE NOT PRODUCED. THE ASSESSING OFFICER ISSUED LETTERS TO THE THREE DONORS, WHICH WERE RETURNED UNSERVED BY THE POSTAL AUTHORITY WITH THE POSTAL REMARK NOT KNOWN. THE ASSESSING OFFICER OBTAINED BANK ACCOUNTS OF SHRI S.MAHENDRU AND J.M.MODI, FROM WHICH THE ASSESSING OFFICER FOUND IN BOTH THE ACCOUNTS RS.1,00,000 CASH WAS INTRODUCED JUST TWO DAYS BEFORE THE GIFT CHEQUES WERE ISSUED. THE GIFT S DEED ALSO DID NOT HAVE ANY PAN OF THE DONORS. IT WAS EXPLAINED BY THE ASSESSEE THAT THE GIFTS MADE BY SHRI OMI SAPRU WAS OUT OF SALES OF SHARES OF CALICO INDIA PVT. LTD., TO ONE M/S.JUPAX DISTRIBUTORS PVT. LTD. THE ASSESSING OFFICER ISSUED LETTER TO M/S. JUPAX DISTRIBUTORS PVT. LTD., WHICH ALSO CAME BACK UNSERVED. THE ASSESSING OFFICER THEN OBTAINED BANK STATEMENT OF M/S.JUPAX DISTRIBUTORS PVT. LTD., AND IT WAS FOUND THAT THE GIFT GIVEN BY SHRI SAPRU HAD ORIGINATED OUT OF A CASH DEPOSIT MADE IN THE ACCOUN T OF M/S.ONKAR MANAGEMENT WHICH ISSUED A CHEQUE TO SHRI JUPAX DISTRIBUTORS PVT. LTD., WHO IN TURN ISSUED A CHEQUE TO SHRI SAPRU FROM WHERE THE GIFT WAS GIVEN TO THE ASSESSEE. THE ASSESSING OFFICER OBSERVED THAT THE CASH DEPOSIT IN THE ACCOUNT OF M/S.ONKAR MANAGEMENT WAS TO THE TUNE OF RS.3,00,000. OUT OF THE SAID CASH DEPOSIT, CHEQUES OF RS.1,50,000 EACH WERE ISSUED TO SHRI DIPAK PURI AND SHRI OMI SAPRU WHO GAVE GIFTS TO THE ASSESSEE AND ANOTHER FAMILY MEMBER NAMELY VINAY MOHINDER HUF RESPECTIVELY. THE TWO CHEQUES ISSUED BY SHRI DIPAK PURI AND OMI SAPRU WERE WRITTEN BY THE SAME PERSON. THE ASSESSING OFFICER FURTHER OBSERVED THAT SHRI OMI SAPRUS TOTAL INCOME FOR YEAR WAS RS.85,500 OUT OF WHICH DRAWINGS WERE RS.68,550. THEREFORE, THE ASSESSING OFFICER WAS O F THE OPINION THAT ALL THE THREE GIFT TRANSACTIONS, WHEN JUDGED IN THE LIGHT OF COMMON HUMAN BEHAVIOR AND PREPONDERANCE OF PROBABILITY WERE BOGUS. HE, THEREFORE, DISALLOWED THE CLAIM OF GIFTS AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEA L, THE LEARNED CIT(A) CONFIRMED / I.T.A.NO.53,54 AND 55 /KOL/2009 5 THE ACTION OF THE ASSESSING OFFICER AND HENCE, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 3. AT THIS STAGE, THE LEARNED AR OF THE ASSESSEE FILED PAPER BOOK S IN RESPECT OF EACH OF THE APPEALS, CONTAINING THE COPY O F GIFT AFFIDAVIT, DECLARATION OF GIFT, XEROX OF BANK PASS BOOK, SHARE PURCHASE BILL, RETURN ACKNOWLEDGEMENT RECEIPT, P & L ACCO UNT, BALANCE SHEET, COMPUTATION AND CAPITAL ACCOUNT OF DONORS. HOWEVER, NO SUCH EVIDENCE S EXCEPT GIFT AFFIDAVIT OF JAGAT MOHNA MO DI (DONOR) COULD BE FILED. HE CONTENDED THAT THE ASSESSEE S HAVE PRODUCED ALL DETAILS IN SUPP ORT OF THE CLAIM OF GIFT AND HAVE DULY PROVED THE IDENTITY AND CREDITWORTHINESS OF THE DONOR S AND ALSO THE GENUINENESS OF THE TRANSACTION S . THEREFORE, THE AUTHORITI ES BELOW ARE NOT JUSTIFIED IN REJECTING THE CLAIM OF GIFT S WITHOUT EXAMINING THE EVIDENCES PRODUCED IN SUPPORT OF THE CLAIM IN EACH CASE OF THE ASSESSEES . HE PLACED RELIANCE ON THE DECISIONS IN THE CASE OF CIT V. PADAM SINGH CHOUHAN (215 CTR 303)(RAJ), CIT V. RAM DEV KUMAR CHITLANGIA (217 CTR 462)(RAJ), CIT V. R.S.SIBAL [135 TAXMAN 492 (DELHI)]. THE LEARNED AR OF THE ASSESSEE ALSO PLACED RELIANCE ON VARIOUS DECISIONS OF THE ITAT, KOLKATA BENCHES INTER ALIA IN THE CASE OF ACIT V. RAJESH SINGHI IN ITA NO. 23.1 .2009, SMT.SWAPNA DAS V. ITO IN ITA NO.151/KOL/2008, ITO V. SMT. SAILZA AGARWAL IN ITA NO.312/KOL/2007 DT.11.5.2007,SRI BISWANATH DUTA V. ITO IN ITA NO.675/KOL/2008 DT.3.4.2009. 4. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDERS OF THE A UTHORITIES BELOW. 5. HAVING HEARD BOTH THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSING THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND CONSIDERING THE DECISIONS RELIED UPON BY THE LEARNED AR OF THE ASSESSEE, IT IS OBSERVED THAT THE EACH OF ASSESSE E S HA VE PRODUCED ALL THE DETAILS, WHICH THEY COULD FOR ESTABLISHING THE CLAIM OF GIFT FROM THE DONORS (EXCEPT IN CASE OF DONOR - JAGAT MOHAN MODI) . HOWEVER, I AM OF THE OPINION THAT THE DISALLOWANCE OF THE CLAIM OF GIFT WITHOUT PROPER EXAMINATION THE EVID ENCES PRODUCED BY EACH OF THE ASSESSEE S IS NOT PROPER. THEREFORE, I SET ASIDE THE IMPUGNED ORDER S OF THE LEARNED CIT(A) IN CASE OF EACH OF THE ASSESSEES AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO RE - / I.T.A.NO.53,54 AND 55 /KOL/2009 6 DECIDE THE SAME AS IN ACCORDANCE WITH LAW AFTER PROPER EXAMINATION OF THE EVIDENCES PRODUCED BY THE ASSESSEE S AND PASS A SPEAKING ORDER IN THE LIGHT OF THE DECISIONS RELIED ON BY THE LEARNED AR OF THE ASSESSEE (SUPRA) AND AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE S . HO WEVER, SINCE THE LEARNED AR OF THE ASSESSEE COULD NOT PRODUCE ANY OTHER EVIDENCES EXCEPT AN AFFIDAVIT IN CASE OF THE DONOR - JAGAT MOHAN MODI, THE DISALLOWANCE OF GIFT OF RS.1,00,000 CLAIMED BY THE ASSESSEE RAHUL MOHINDER HUF AND ADDITION THEREOF IS UPHEL D. 5. TO SUM UP, THE ASSESSING OFFICER IS REQUIRED TO EXAMINE THE FOLLOWING CLAIM OF GIFTS IN THE CASE OF RESPECTIVE ASSESSEES MENTIONED HEREUNDER : SL.NO. NAME OF ASSESSEE CLAIM OF GIFTS REQUIRES EXAMINATION. NAME OF DONOR AMOUNT 1. BDK MOHINDER & S ONS HUF MR. DIPAK PURI RS.1,50,000 2. VINAY MOHINDER HUF 1. MR. R.AHUJA 2. MR.OMI SAPRU RS.1,00,000 RS.1,50,000 3. RAHUL MOHINDER HUF 1. MR. SATPAL MAHENDRU 2. MR.OMI SAPRU RS.1,00,000 RS.1,00,000 6. IN THE RESULT, ITAS NO.53/KOL/2009 AND 54/KOL/2009 ARE ALLOWED FOR STATISTICAL PURPOSE AND ITA NO.55/KOL/2009 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 25.06.2010 SD/ - ( . . ), ( B.R.MITTAL ), JUDICIAL MEMBER ( ) DATE : 25.06.2010 ( /) H.K.PADHEE / SNR.PRIVATE SECRETARY. / I.T.A.NO.53,54 AND 55 /KOL/2009 7 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPEL LANT : 1. BDKL MOHINDER & SONS HUFC/O. D.J.SHAH & CO., KALYAN BHAVAN, 2 ELGIN ROAD, KOLKATA 700 020. PAN AACHB 3904 N ___________________________________________ 2. VINAY MOHINDER HUF AADHV 5334 F (ADDRESS AS ABOVE) ____________________________________ _______ 3. RAHUL MOHINDER HUF PAN AAHHR 4958 M (ADDRESS AS ABOVE) ___________________________________________ 2 / THE RESPONDENT - INCOME - TAX OFFICER, WARD 29(4), KOLKATA 3. / THE CIT, 4. ( )/ THE CIT(A), 5. / DR, KOLKATA BENCH 6. GUARD FILE . / TRUE COPY , / BY ORDER , / DEPUTY REGISTRAR .