PARVINDER SINGH N. BHATIA, MUMBAI V. DCIT CEN CIR 45, MUMBAI

ITA 5577/MUM/2011

• Counselvise Citation: 557719914 RSA 2011
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 28-11-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 29-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Assessee Lawyers: BHUMIKA VORA
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI P. M. JAGTAP, ACCOUNTANT MEMBER AND SHRI VIVEK VERMA, JUDICIAL MEMBER ITA NO. 5577/MUM/2011 TO 5580/MUM/2011 ASSESSMENT YEAR: 2002-03, 2003-04, 2005-06 & 2006-0 7 PARVINDER SINGH N. BH ATIA 211, ANANT BHUVAN, WATERFIELD ROAD, BANDRA (W), MUMBAI-400 050 VS. DCIT, CENTRAL CIRCLE - 45, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 (APPELLANT) (RESPONDENT) P.A. NUMBER : AAFPB 6569 E ASSESSEE BY : SHRI RAJIV KHANDELWAL & MS. BHUMIKA VORA REVENUE BY : SHRI A.C. TEJPAL DATE OF HEARING : 28/11/2013 DATE OF PRONOUNCEMENT : 29/11/2013 O R D E R PER P.M. JAGTAP, ACCOUNTANT MEMBER: THESE FOUR APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST A COMMON ORDER OF LD. CIT(A)-38, MUMBAI, DATED 29/03/ 2011 FOR THE ASSESSMENT YEARS 2002-03, 2003-04, 2005-06 & 2006-0 7 AND THE SAME THEREFORE, HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED BY SINGLE CONSOLIDATED ORDER. 2. OUT OF THESE FOUR APPEALS, THREE APPEALS FILED B Y THE ASSESSEE FOR THE ASSESSMENT YEARS 2003-04, 2005-06 AND 2006-07 I NVOLVE COMMON ISSUE RELATING TO THE DELETION BY THE CIT(A) OF THE FOLLOWING ADDITION MADE ITA NO.5577 TO 5580/M/11 02-03/03-04/05-06 &06-07 PARVINDER SINGH N. BHATIA. 2 BY AO ON ACCOUNT OF GIFTS RECEIVED BY MINOR CHILDRE N OF THE ASSESSEE TREATING THE SAME AS UNEXPLAINED. ASSESSMENT YEAR AMOUNT(RS.) 2003-04 27,51,378 2005-06 32,50,000 2006-07 2,00,000 2.1 AT THE TIME OF HEARING BEFORE US, THE LD. REPRE SENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THIS COMMON ISSUE INVOLVED I N THE APPEALS OF THE REVENUE FOR THE ASSESSMENT YEARS 2003-04 2005-06 AN D 2006-07 IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001-02 DATED 25/07/2012 PASSED IN ITA NO.17/MUM/2010 WHEREIN A SIMILAR ADDITION MADE ON ACCOUNT OF GIFTS RECEIVED BY MINOR CHILDREN OF THE ASSESSEE WAS DELETED BY THE TRIBUNAL FOR THE FOLLOWING REASONS I N PARA-6 OF ITS ORDER. 6. AS REGARDS THE ISSUE RELATING TO UNEXPLAINED GIFTS RAISED IN GROUND NO.3, IT IS OBSERVED THAT ALTHOUGH THE RE LEVANT GIFT DEEDS WERE PRODUCED BY THE ASSESSEE BEFORE THE AO A LONG WITH INCOME-TAX RETURNS OF THE CONCERNED DONORS, TH E GIFTS GIVEN TO THE MIN OR CHILDREN OF THE ASSESSEE TREATE D BY THE AO AS UNEXPLAINED AS RESULT OF THE FAILURE OF THE AS SESSEE TO PRODUCE THE CONCERNED DONORS IN ORDER TO ESTABLISH THEIR CREDITWORTHINESS AND GENUINENESS. ALTHOUGH IT WAS SPECIFICALLY SUBMITTED ON BEHALF OF THE ASSESSEE BE FORE THE LD. CIT (A) THAT NO SUCH OPPORTUNITY WAS CLEARLY AFFORD ED BY THE AO TO PRODUCE THE CONCERNED DONORS EITHER DURING TH E COURSE OF ASSESSMENT PROCEEDINGS OR EVEN DURING THE COURSE OF REMAND PROCEEDINGS, THE LD. CIT (A) APPEARS TO HAVE BRUSHED ASIDE THE SAME. ON THE CONTRARY, HE RECORDED AN AD VERSE FINDING AGAINST THE ASSESSEE ON THE BASIS OF NON- P RODUCTION OF DONORS BY OBSERVING THAT THE ONUS OF PROVING THE GENUINENESS OF GIFTS AND CREDITWORTHINESS OF THE DO NORS WAS NOT DISCHARGED BY THE ASSESSEE AS A RESULT OF FAIL URE TO PRODUCE THE DONORS. WHILE RECORDING THIS ADVERSE O BSERVATION, HE HOWEVER IGNORED THE DOCUMENTARY EVIDENCE FILED B Y THE ASSESSEE BEFORE THE AO UNDER LETTER DATED 14.11.200 8 IN THE FORM OF GIFT DEEDS, INCOME-TAX RETURNS, COMPUTATION OF TOTAL INCOME, CAPITAL ACCOUNT, BALANCE-SHEETS ETC. AS SPE CIFICALLY ITA NO.5577 TO 5580/M/11 02-03/03-04/05-06 &06-07 PARVINDER SINGH N. BHATIA. 3 MENTIONED IN PARAGRAPH NO.3.5 OF HIS IMPUGNED ORDER . IN OUR OPINION, THE SAID DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE WAS SUFFICIENT TO DISCHARGE THE PRIMARY ONUS ON TH E ASSESSEE TO EXPLAIN THE GIFTS RECEIVED BY HIS MINOR CHILDRE N IN TERMS OF SE C.68 WHICH WAS SHIFTED TO THE AO AND IN THE ABS ENCE OF ANY ADVERSE MATERIAL BROUGHT ON RECORD BY THE AO T O DOUBT OR DISPUTE THE GENUINENESS OF THE RELEVANT GIFTS, WE ARE OF THE VIEW THAT THE SAID GIFTS CANNOT BE TREATED AS UNEX PLAINED CASH CREDITS U/S.68 MERELY BECAUSE THE DONORS WERE NOT PRODUCED BY THE ASSESSEE. IT IS OBSERVED THAT THE D ETAILS AND DOCUMENTS FURNISHED BY THE ASSESSEE CONTAINED NOT O NLY THE NAMES AND ADDRESSES OF THE DONORS BUT EVEN THEIR IN COME-T AX PARTICULARS AND STILL NO ENQUIRY WHATSOEVER WAS MAD E BY THE AO EITHER WITH THE CONCERNED DONORS OR EVEN WITH TH EIR ASSESSING OFFICERS IN ORDER TO ASCERTAIN THE GENUIN ENESS OF GIFTS. AS SUCH CONSIDERING ALL THE FACTS OF THE CAS E, WE ARE OF THE VIEW THAT THE PRIMARY ONUS THAT LAY ON THE ASSE SSEE IN TERMS OF EXPLAINING THE RELEVANT GIFTS U/S.68 WAS D ULY DISCHARGED AND IN THE ABSENCE OF ANY ADVERSE MATERI AL BROUGHT ON RECORD BY THE AO TO DOUBT OR DISPUTE THE GENUINENESS OF SAID GIFTS, THE ADDITION MADE BY HIM U/S.68 IS NOT SUSTAINABLE. IN THAT VIEW OF THE MATTER, WE DEL ETE THE ADDITION MADE BY THE AO AND CONFIRMED BY LD. CIT ( A) ON THIS ISSUE AND ALLOW GROUND NO.3 OF THE ASSESSEES APPEA L. 2.2 AS THE ISSUE INVOLVED IN THE YEARS UNDER CONSID ERATION AS WELL AS ALL THE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO ASSESSMENT YEAR 2001-02, WE, RESPECTFULLY FOLLOW THE ORDER OF THE C O-ORDINATE BENCH OF THIS TRIBUNAL PASSED IN ASSESSEES OWN CASE IN ASSE SSMENT YEAR 2001-02 (SUPRA), AND DELETE THE ADDITION MADE BY AO AND CON FIRMED BY THE CIT(A) IN ALL THE THREE YEARS UNDER CONSIDERATION ON ACCOU NT OF GIFTS RECEIVED BY MINOR CHILDREN OF ASSESSEE. 2.3 AS REGARDS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2002-03, THE LD. REPRESENTATIVES OF BOTH THE SIDES HAVE AGREED T HAT THE SOLITARY ISSUE INVOLVED THEREIN IS RELATED TO ADDITION OF RS.1,81, 913/- MADE BY ASSESSING OFFICER AND CONFIRMED BY CIT(A) ON ACCOUN T OF LOW HOUSEHOLD WITHDRAWALS WHICH IS ALSO COVERED BY THE ORDER OF T HE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2001-02 (SUP RA), WHEREIN SIMILAR ITA NO.5577 TO 5580/M/11 02-03/03-04/05-06 &06-07 PARVINDER SINGH N. BHATIA. 4 ISSUE WAS DECIDED BY THE TRIBUNAL AGAINST ASSESSEE FOR THE FOLLOWING REASONS GIVEN IN PARA-7 : 7. AS REGARDS THE ISSUE INVOLVED IN GROUND NO.4 RE LATING TO LOW WITHDRAWAL FOR HOUSEHOLD EXPENSES, IT IS OBSER VED THAT ESTIMATE OF HOUSEHOLD EXPENSES OF THE ASSESSEE AT RS.25,000/- PER MONTH WAS MADE BY THE AO AFTER TAK ING INTO CONSIDERATION ALL THE RELEVANT FACTS OF THE CASE AND THE ESTIMATE SO MADE WAS ALSO ACCEPTED BY THE ASSESSEE. SINCE THE ASSESSEE HAD SHOWN A WITHDRAWAL OF RS. 1,13,84 9/- ONLY FOR HOUSEHOLD EXPENSES, THE BALANCE SUM OF RS.1,8 6,151/- IN OUR OPINION WAS RIGHTLY ADDED BY THE AO TO THE TOT AL INCOME OF THE ASSESSEE AS LOW WITHDRAWAL AND THE LD. CIT (A) WAS FULLY JUSTIFIED IN CONFIRMING THE SAME. WE, THERE FORE, FIND NO INFIRMITY IN THE ORDER OF LD. CIT (A) ON THIS ISSUE AND UPHOLDING THE SAME, WE DISMISS GROUND NO.4 OF THE ASSESSEES APPEAL. 2.4 RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNA L IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001-02 SUPRA, WE DECI DE THE SIMILAR ISSUE AGAINST ASSESSEE, AND UPHOLD THE IMPUGNED ORDER OF LD. CIT(A) CONFIRMING THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT O F LOW HOUSEHOLD WITHDRAWALS. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR TH E ASSESSMENT YEAR 2002-03 IS DISMISSED WHILE THAT FOR ASSESSMENT YEAR S 2003-04, 2005-06 AND 2006-07 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER, 2013. SD/- SD/- (VIVEK VARMA) JUDICIAL MEMBER (P.M. JAGTAP ) ACCOUNTANT MEMBER MUMBAI, DATED: 29/11/2013. JV. ITA NO.5577 TO 5580/M/11 02-03/03-04/05-06 &06-07 PARVINDER SINGH N. BHATIA. 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.