Shri Darshanbhai Hasmukhlal Shah, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-5(1), RAJKOT-GUJARAT

ITA 55/RJT/2011

• Counselvise Citation: 5524914 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-04-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 23-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: CHETAN AGARWAL U
• Keywords: Gift
• Section: 143(3)

Judgement Text

' R, IN THE INCOME TAX APPELLATE TRIBU N AL; RAJKOT BENCH, RAJKOT. A.. , YE O . . O , O BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM IT A NO . 5 5 /RJT/20 1 1 . I I / ASSESSMENT YEAR 200 1 - 0 2 SHRI DARSHANBHAI HASMUKHLAL SHAH C/O M/S BHARAT TOOLS STEEL SYNDICA T E DHEBARBHAI ROAD, RAJKOT PAN: AGGPS4968M ( A / APPELLANT) VS. THE INCOME TAX OFFICER WARD 5(1), RAJKOT OWA / RESPONDE NT I / ASSESSEE BY SHRI CHETAN AGARWAL U / REVENUE BY SHRI AVINASH KUMAR ' /DATE OF HEARING 10.4.2013 ' / DATE OF PRONOUNCEMENT 19. 4.2013 / ORDER A.. , YE O / T. K. SHA RMA, J. M. TH IS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 26.11.2010 OF CIT(A) - I V , RAJKOT CONFIRMING THE ADDITION OF RS. 2 ,50,000/ - MADE BY THE AO IN RESPECT OF GIFT RECEIVED FROM SHRI SANJAY ASHOKBHAI NANDHA, (RS.2,00,000/ - ) AND RS.2,00,0 00/ - WAS RECEIVED ON 6.2.2001 FROM DONOR SHRI SANJAY ASHOKBHAI NANDHA THROUGH (RS.50,000/ - ) BOTH RESIDING AT SHARJAHAN (UAE) FOR THE ASSESSMENT YEAR 200 1 - 02 . 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE (HUF) RECEIVED A GIFT OF RS. 2 , 00,000 / - FRO M SHRI SANJAY ASHOKBHAI NANDHA, AND RS.50,000/ - FROM SHRI BHAVIN DHIRAJLAL BHUVA BOTH RESIDING AT SHARJAHAN (UAE) FOR THE ASSESSMENT YEAR 2001 - 02. THIS GIFT OF RS.2,00,000/ - WAS RECEIVED ON 6.2.2001 FROM DONOR SHRI SANJAY ASHOKBHAI NANDHA THROUGH NRE ACCOUNT BEARING ACCOUNT N O. 36537 WITH STATE BANK OF SAURASHTRA, ITA NO.5 5 /RJT/2011. 2 RAMKRISHNANAGAR BRANCH, RAJKOT BRANCH THROUGH BANK CHEQUE BEARING CHEQUE NO.200617. THIS GIFT OF RS.50,000/ - WAS RECEIVED ON 13.7.2000 FROM DONOR SHRI BHAVIN DHIRAJLAL BHUVA THROUG H NRE ACCOUNT BEARING ACCOUNT NO.1096 WITH DEVELOPMENT CREDIT BANK LTD., HOSPITAL ROAD, BHUJ BEARING ACCOUNT PAYEE PO NO.1672. THE AO IN THE ASSESSMENT ORDER FRAMED U/S 143(3) THE AO IN THE ASSESSMENT ORDER FRAMED U/S 143(3) ON 10.3.2004 TREATED THE A FORESAID GIFT AS NON - GENUINE AND ADDED BACK THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 3. ON APPEAL, IN THE IMPUGNED ORDER THE LD. CIT(A) UPHELD THE ACTION OF THE AO , IN BOTH THE CASES, THE FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL V/S CIT REPORTED IN 214 ITR 801 AND CIT V/S DURGAPRASAD MORE REPORTED IN 82 ITR 540 . AGGRIEVED WITH THE ORDER S OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US SHRI CHETAN AGARWAL, THE LD. COUNSEL APPEARED AND CONTENDED THAT THE AFORESAID GIFT OF RS. 2,0 0,000/ - AND RS. 5 0,000/ - ARE GENUINE AND THE ASSESSEE SUBMITTED A COPY OF CHEQUE BEARING C H. NO. 200617 DATED 6.2.2001 DRAWN ON STATE BANK OF SAURASHTRA IN FAVOUR OF ASSESSEE ISSUED BY SHRI SANJAYKUMAR ASHOKBHAI NA N DHA AND A CERTIFICATE DATED 9.2.2001 ISSUED BY THE STATE BANK OF SAURASHTRA IN WHICH IT HAS BEEN MENTIONED THAT C H.NO.20061 7 DATED 7.2.2001 FOR RS. 2 ,00,000/ - ISSUED IN FAVOUR OF MR. DARSHAN SHAH FROM THE NON - RESIDENT EXT ERNAL SB A/C NO.36537 OF SANJAYKUMAR A NA N DHA. HE ALSO SUBMITTED A CERTIFICATE ISSUED BY THE DEVELOPMENT CREDIT BANK LTD, DATED 13.7.2000 CONTAINING THAT PO NO.1672 DATED 13.7.2000 OF RS.50,000/ - PAYABLE AT RAJKOT IN FAVOUR OF DARSHANBHAI HAMUKHBAHI S HAH ISSUED BY DEBITING FROM NRE SB A/C NO.1096 OF BHAVIN D BHUVA. THE AO ON DOUBT AND SUSPENSION TREATED THE AFORESAID GIFT AS NON - GENUINE WITHOUT BRINGING ANY MATERIAL ON RECORD. AS AGAINST THIS, SHRI AVINASHKUMAR, THE LD. DR POINTED OUT THAT THE ASS ESSEE HAS NOT ITA NO.5 5 /RJT/2011. 3 PROVED THE CAPACITY OF THE DONOR. THEREFORE, THE VIEW TAKEN BY THE LD. CIT(A) BE UPHELD. 5. IN COUNTER REPLY, THE COUNSEL OF THE ASSESSEE SUBMITTED THAT ASSESSEE COULD NOT SUPPLY THE BANK ACCOUNT OF THE DONORS AS THE SAME WERE NOT AVAILABL E. HE EXPLAINED THAT SINCE THE GIFT FROM BOTH THE DONORS I.E. RS.2,00,000/ - FROM DONOR SHRI SANJAY ASHOKBHAI NANDHA AND RS.50,000/ - FROM DONOR SHRI BHAVIN D BHUVA WERE RECEIVED BY ACCOUNT PAYEE CHEQUES . NOW, THE ASSESSEE WILL MOVE AN APPLICATION UNDER THE RIGHT TO INFORMATION ACT TO THE CONCERN BANK TO SUPPLY A COPY OF THE BANK ACCOUNT AND SAME SHALL BE PRODUCED BEFORE THE AO. HE ACCORDINGLY SUGGESTED THAT THE ASSESSEE IS A SMALL PERSON , THEREFORE, IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY BE ALLOWED TO THE ASSESSEE SO THAT HE CAN OBTAIN THE COPY OF BANK ACCOUNTS FROM THE CONCERN BANK OF BOTH THE DONORS AND PRODUCE THE SAME BEFORE THE AO. 6. RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINENT TO NOTE THAT THE ASSESSE HAS FILED THE RETURN OF I NCOME DECLARING TOTAL INCOME OF RS.1,03,854/ - . ADMITTEDLY HE IS A SMALL ASSESSEE. THE SMALL GIFT OF RS.2,50,000/ - WERE RECEIVED THROUGH ACCOUNT PAYEE CHEQUE S . BOTH THE DONORS ARE NRE. BEFORE BOTH THE DEPARTMENTAL AUTHORITIES BELOW T HE ASSESSEE COULD NOT PRODUCE A COPY OF BANK ACCOUNT IN ORDER TO PROVE CAPACITY OF DONERS. WE, THEREFORE, IN THE INT EREST OF JUSTICE RESTORE THIS ISSUE TO THE FILE OF T HE AO WITH A DIRECTION THAT IN CASE, THE ASSESSEE COULD ABLE TO PRODUCE THE NECESSARY EVIDENCE TO PROVE THE CAPACITY OF BOTH DONORS TO MAKE GIFT OF RS.2,50,000/ - AND IF T HE AO IS SATISFIED, THE AO WILL DELETE THE ADDITION . IN CASE, BEFORE THE AO, THE ASSESSEE FAILED TO PRODUCE COPY OF BANK ACCOUNT OR ANY OTHER EVIDENCE TO PROVE THE CAPACITY OF THE DON ORS , THE AO IS AT LIBERTY TO RE - MAKE THE ADDITION. ITA NO.5 5 /RJT/2011. 4 7 . FOR THIS LIMITED PURPOSES , THE MATTER IS RESTORED TO THE FILE OF THE AO, THE AO WILL RE - ADJUDICATE THE ADDITION OF RS.2,50,000/ - 8 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASS ESSEE IS ALLOWED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD SD ( .. EU / D. K. SRIVASTAVA) ( '.. I / T. K. SHARMA) AO, / ACCOUNTANT MEMBER U / JUDICIAL MEMBER / ORDER DATE 19. 4. . 201 3 . /RAJKOT SRL EJ6 I6 / COPY OF ORDER FORWARDED TO: - 1. A / APPELLANT - 2. OWA / RESPONDENT - 3. R H / CONCERNED CIT , 4. H - / CIT (A) , 5. OR, ' R, / DR, ITAT, RAJKOT 6. I / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.