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

ITA 56/RJT/2011

• Counselvise Citation: 5624914 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 I
• Keywords: Gift
• Section: 143(3)

Judgement Text

4 T, IN THE INCOME TAX APPELLATE TRIBU N AL; RAJKOT BENCH, RAJKOT. .. , R O . . O , O BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM IT A NO . 56 AND 57 /RJT/20 1 1 . I I / ASSESSMENT YEAR 200 1 - 0 2 SHRI HASMUKHLAL SHIVLAL SHAH C/O M/S BHARAT TOOLS STEEL SYNDICA T E DHEBARBHAI ROAD, RAJKOT PAN: AADHS6264B ( A / APPELLANT) VS. THE INCOME TAX OFFICER WARD 5(1), RAJKOT A / RESPOND ENT I / ASSESSEE BY SHRI CHETAN AGARWAL I / REVENUE BY SHRI AVINASH KUMAR 4 /DATE OF HEARING 10.4.2013 4 / DATE OF PRONOUNCEMENT 19. 4.2013 / ORDER .. , R O / T. K. SH ARMA, J. M. THESE APPEAL S BY THE ASSESSEE ARE AGAINST THE TWO SEPARATE ORDER S DATED 26.11.2010 OF CIT(A) - I V , RAJKOT CONFIRMING THE ADDITION OF RS.1,50,000/ - AND RS.1,00,000/ - MADE BY THE AO IN RESPECT OF GIFT RECEIVED FROM SHRI MOHAN JESABHAI PANK HANIA WHO RESIDES AT RIDADH (SAUDI ARABIA) AND SHRI SANJAY ASHOKBHAI NANDHA, RESIDING AT SHARJAHAN (UAE) FOR THE ASSESSMENT YEAR 200 1 - 02 RESPECTIVELY. SINCE BOTH THE APPEALS PERTAIN TO THE SAME ASSESSEE THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.56/RJT/2011. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE (HUF) RECEIVED A GIFT OF RS.1,50,000/ - FROM ONE SHRI MOHAN JESABHAI PANKHANIA WHO RESIDES AT RIDADH (SAUDI ARABIA). THIS GIFT WAS REC EIVED FROM DONOR NRE ACCOUNT ITA NO.56 AND 57/RJT/2011. 2 BEARING ACCOUNT N O.23884 WITH CENTRAL BANK OF INDIA, RAJKOT BRANCH THROUGH BANK CHEQUE BEARING CHEQUE NO.0002678 & 0002683 . THE AO IN THE ASSESSMENT ORDER FRAMED U/S 143(3) ON 10.3.2004 TREATED THE AFORESAID GIFT AS NON - GE NUINE AND ADDED BACK THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. ITA NO.57/RJT/2011. 3. IN THIS CASE THE ASSESSEE (HUF) RECEIVED A GIFT OF RS.1 ,00,000 / - ON 6 .2.2001 FROM ONE SHRI SANJAY ASHOKBHAI NANDHA, RESIDING AT SHARJAHAN (UAE). THIS GIFT WAS REC EIVED FROM DONOR NRE ACCOUNT BEARING ACCOUNT NO. 36537 WITH STATE BANK OF SAURASHTRA, RAMKRISHNANAGAR BRANCH, RAJKOT BRANCH THROUGH BANK CHEQUE BEARING CHEQUE NO. 200615 . THE AO IN THE ASSESSMENT ORDER FRAMED U/S 143(3) ON 10.3.2004 TREATED THE AFORESAI D GIFT AS NON - GENUINE AND ADDED BACK THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 4 . 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 O F 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. 5 . AT THE TIME OF HEARING BEFORE US SHRI CHETAN AGARWAL, THE LD. COU NSEL APPEARED AND CONTENDED THAT THE AFORESAID GIFT OF RS.1,50,000/ - AND RS.1,00,000/ - ARE GENUINE AND THE ASSESSEE SUBMITTED A COPY OF CHEQUE BEARING CH. NO.36537 DATED 6.2.2001 DRAWN ON STATE BANK OF SAURASHTRA IN FAVOUR OF ASSESSEE ISSUED BY SHRI SANJAYKUMAR ASHOKBHAI NADHA AND A CERTIFICATE DATED 9.2.2001 ISSUED BY THE STATE BANK OF SAURASHTRA IN WHICH IT HAS BEEN MENTIONED THAT CH.NO.200615 DATED 7.2.2001 FOR RS.1,00,000/ - ISSUED IN FAVOUR OF MR.HASMUKHLAL SHAH FROM THE NON - RESIDENT EXTER NAL SB A/C NO.36537 OF SANJAYKUMAR A NADHA. THE AO ON DOUBT AND SUSPENSION TREATED THE AFORESAID GIFT AS NON - GENUINE WITHOUT BRINGING ANY MATERIAL ON RECORD. AS AGAINST THIS, ITA NO.56 AND 57/RJT/2011. 3 SHRI AVINASHKUMAR, THE LD. DR POINTED OUT THAT THE ASSESSEE HAS NOT PROVED T HE CAPACITY OF THE DONOR. THEREFORE, THE VIEW TAKEN BY THE LD. CIT(A) BE UPHELD. 6 . 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 AVAILABLE. HE EXPLAINED THAT SINCE THE GIFT FROM BOTH THE DONORS I.E. 1,50,000/ - FROM DONOR SHRI MOHAN JESABHAI AND RS.1,00,000/ - FROM SHRI SANJAY ASHOKBHAI NANDHA WERE RECEIVED BY ACCOUNT PAYEE CHEQUES. NOW, THE ASSESSEE WILL MOVE AN APPLICATION UNDER THE RIGHT TO INFORMATION A CT 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. 7 . RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINENT TO NOTE THAT THE ASSESSE HAS FILED THE RETURN OF INCOME DECLARING TOTAL INCOM E OF RS. 11,627/ - . ADMITTEDLY HE IS A SMALL ASSESSEE. THE SMALL GIFT OF RS.2,50,000/ - WERE RECEIVED THROUGH ACCOUNT PAYEE CHEQUES. BOTH THE DONORS ARE NRE. BEFORE BOTH THE DEPARTMENTAL AUTHORITIES BELOW THE ASSESSEE COULD NOT PRODUCE A COPY OF BANK A CCOUNT IN ORDER TO PROVE CAPACITY OF DONORS . WE, THEREFORE, IN THE INTEREST OF JUSTICE RESTORE THIS ISSUE TO THE FILE OF THE 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. 1 ,50,000/ - AND RS.1,00,000/ - IF THE 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 DONORS, THE AO IS AT LIBERTY TO RE - MAKE THE ADDITION. ITA NO.56 AND 57/RJT/2011. 4 8 . FOR THIS LIMITED PURPOSES, THE MATTER IS RESTORED TO THE FILE OF THE AO, THE AO WILL RE - ADJUDICATE THE ADDITION OF RS. 1 ,50,000/ - AND RS.1,00,000/ - . 9 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL S OF THE ASSESSEE ARE ALLOWED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD SD ( .. I / D. K. SRIVASTAVA) ( 4.. I / T. K. SHARMA) AND / ACCOUNTANT MEMBER I / JUDICIAL MEMBER N/ ORDER DATE 19. 4. . 201 3 . /RAJKOT SRL RJO O / COPY OF ORDER FORWARDED TO: - 1. A / APPELLANT - 2. A / RESPONDENT - 3. T / CONCERNED CIT , 4. - / CIT (A) , 5. T, 4 T, / DR, ITAT, RAJKOT 6. I / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.