Sh. Harish Ahuja, Amritsar. V. The Asstt. Commissioner of Income-tax, Amritsar.

ITA 577/ASR/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0578 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 07-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PADAM BAHL
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.577(ASR)/2011 ASSESSMENT YEAR:2005-06 PAN:AALPA9932E SH. HARISH AHUJA VS. THE ASSTT. COMMR. OF INCOME- TAX, C/O M/S. KOSMO PLASTIC EXPORTS CIRCLE-III, AMRITSAR . PVT. LTD. AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. PADAM BAHL, CA RESPONDENT BY:SH. TARSEM LAL, DR DATE OF HEARING :10/01/2013 DATE OF PRONOUNCEMENT:11/01/2013 ORDER PER BENCH: THE PRESENT APPEAL FILED BY THE ASSESSEE IS AGAIN ST THE IMPUGNED ORDER OF THE CIT(A), AMRITSAR, DATED 03.10.2011 FO R THE ASSESSMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS: 1. THAT WORTHY CIT(A), AMRITSAR HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS.1,00,000/- MADE BY THE AO ON ACC OUNT OF GIFT RECEIVED BY THE ASSESSEE FROM HER DAUGHTER MISS GOP I AHUJA ON THE GROUND THAT ASSESSEE FAILED TO PRODUCE THE DONO R. 2. THAT WORTHY CIT(A), AMRITSAR, HAS GROSSLY ERRED IN NOT APPRECIATING THAT DONOR WAS AN INCOME TAX ASSESSEE HAVING ITA NO.17(ASR)/2012 2 PAN & HAD CONFIRMED HAVING MADE THE GIFT AND HER PE RSONAL BALANCE SHEET WAS ALSO FILED. 3. THAT THE ADDITION OF RS.1,00,000/- UPHELD BY WOR THY CIT(A) BE DELETED. 2, THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSEE FILED HIS RETURN OF INCOME AT RS.6,41,652/- ON 06.02.2006 WHI CH WAS PROCESSED BY THE AO U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAF TER CALLED THE ACT) ON 26.03.2006 AND LATER ON THE CASE OF THE ASSESSEE WA S PICKED UP SCRUTINY BY ISSUING A NOTICE U/S 143(2) ON 14.08.2006 WHICH WAS DULY SERVED ON THE ASSESSEE ON 17.08.2006 BY FIXING THE CASE OF THE AS SESSEE FOR 28.8.2006. THE AO CALLED FOR VARIOUS DETAILS FROM THE ASSESSEE WH ICH WERE FILED BY THE ASSESSEE THROUGH HIS AUTHORIZED REPRESENTATIVE. THE ASSESSEE RECEIVED RS.1 LAC AS GIFT FROM HIS DAUGHTER MISS. GOPI AHUJA. TH E AO ASKED THE ASSESSEE TO PRODUCE THE DONOR WITH BANK PASSBOOK FROM WHERE THE WITHDRAWAL WAS MADE. IN RESPONSE TO THE SAME, THE LD. COUNSEL FOR THE ASSESSEE FILED A COPY OF BALANCE SHEET OF MISS GOPI AHUJA, WHICH REFLECTE D RS. 2 LACS AS GIFT PAID. THE AO WAS OF THE VIEW THAT SINCE THE ASSESSEE FAILED TO PRODUCE THE DONOR SO IT COULD NOT BE VERIFIED AS TO WHETHER THE GIFT WAS ACTUALLY MADE AND THE DONOR AT THE TIME OF MAKING THE GIFT HAD SUFFICIENT FUNDS AVAILABLE WITH HER TO MAKE THIS GIFT. WHAT WAS THE OCCASION FOR MAKING THE GIFT, WHETHER THERE WAS ANY SUCH TYPE OF HISTORY IN THE PAST. ALL THESE QUESTIONS REMAINED ITA NO.17(ASR)/2012 3 UNEXPLAINED BY THE ASSESSEE AND THE IN VIEW OF JUDG MENT OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LAL CHAND KALRA (THE AO HAS NOT MENTIONED CITATION OF THIS JUDGMENT IN THE ASSESSME NT ORDER), THE AO HELD THAT THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THIS TRANSACTION. HENCE, THE ADDITION OF RS. 1 LAC IS BEING IN THE HANDS OF THE ASSESSEE AND COMPLETED THE ASSESSMENT U/S 143(1) ON 27.12.2007. 3. AGGRIEVED BY THE SAME, THE ASSESSEE FILED THE APP EAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 03.10.2011 PA RTLY ALLOWED THE APPEAL OF THE ASSESSEE BY DELETING ANOTHER ADDITION BUT UPHELD THE ADDITION OF RS. 1 LAC ON ACCOUNT OF GIFT BY THE ASSESSEES DAUG HTER MISS GOPI AHUJA . 4. THE LD. FIRST APPELLATE AUTHORITY HAS ALSO FILED ALMOST SIMILAR TYPE OF ORDER AS PASSED BY THE AO BY RELYING UPON THE JUD GMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LAL CHAN D KALRA (NOT MENTIONED THE CITATION OF THIS JUDGMENT). 5. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SH. PADAM BAHAL STATED THAT MISS. GOPI AHUJA IS A REAL DAUGHT ER OF THE ASSESSEE, SH. HARISH AHUJA AND AND IS FILING HERE INCOME TAX RETU RNS REGULARLY. HE HA ALSO FILED A COPY OF INCOME TAX RETURN FOR THE ASSESSM ENT YEAR 2005-06 ALONGWITH COMPUTATION OF INCOME AND BALANCE SHEET A S AT 31.03.2005, SHOWING THE TOTAL INCOME OF THE ASSESSEE AND THE GI FT PAID BY HER TO HER ITA NO.17(ASR)/2012 4 FATHER. HE FURTHER STATED THAT THE DONOR NAMELY, MI SS. GOPI AHUJA WHO IS THE REAL DAUGHTER OF THE ASSESSEE HAS ALSO FILED CONFIR MATION LETTER BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A), CONFIRMING THAT S HE HAS MADE A GIFT OF RS. 1 LAC TO HER FATHER DURING THE ASSESSMENT YEAR 2005-0 6 OUT OF HER TAXABLE INCOME OF RS.326,670/-. SHE HAS ALSO CERTIFIED THAT SHE HAS MADE THE AFORESAID GIFT OUT OF NATURAL LOVE AND AFFECTION AN D SHE HAS ALSO BEEN ASSESSED REGULARLY TO INCOME TAX (WITH ITO W-3, ASR ) AND HER PAN IS AEBPA7805E. THE LD. COUNSEL FOR THE ASSESSEE FURTHE R STATED THAT THE ASSESSEE HAS FILED ALL NECESSARY DOCUMENTARY EVIDEN CE BEFORE THE AO AS WELL AS BEFORE THE LD. FIRST APPELLATE AUTHORITY, WHICH HAS NOT BEEN PROPERLY CONSIDERED BY THEM AND DECIDED THE ISSUE AGAINST T HE ASSESSEE WRONGLY CONTRARY TO THE LAW AND FACTS ON THE FILE. 5.1 HE FINALLY STATED THAT THE AO HAS NOT GIVEN SUF FICIENT OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE DONOR BEFORE THE AO, WH O IS ADMITTEDLY LIVING WITH HER FATHER, BEING UNMARRIED DAUGHTER AND THE A O COMPLETED THE ASSESSMENT IN A HURRIED MANNER SIMILAR TO THE APPEA L HEARING CLOSED BY THE LD. FIRST APPELLATE AUTHORITY. HE REQUESTED THAT T HE ADDITION IN DISPUTE MAY BE DELETED BY ACCEPTING THE APPEAL FILED BY THE ASSESS EE. 6. THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORI TIES BELOW. ITA NO.17(ASR)/2012 5 7 WE HAVE HEARD THE BOTH THE PARTIES AND PERUSED TH E RECORDS AVAILABLE WITH US ESPECIALLY THE ORDERS PASSED BY THE AUTHORI TIES BELOW. IT IS A MATTER OF RECORD THAT MISS. GOPI AHUJA IS THE REAL DAUGHTER OF THE ASSESSEE AND SHE HAS GIVEN A GIFT OF RS. 1 LAC FROM HER INCOME OF RS. 3, 26,670/-, WHICH SHE HAS SHOWN IN THE INCOME TAX RETURN FILED BY HER FOR TH E ASSESSMENT YEAR 2005- 06. THE ASSESSEE HAS FILED A COPY OF THE INCOME TAX RETURN ALONGWITH COMPUTATION OF INCOME AND BALANCE SHEET AS AT 31.03 .2005 BEFORE US WITH A CERTIFICATE THAT ALL THESE DOCUMENTARY EVIDENCES H AVE BEEN FILED BEFORE THE AO AS WELL AS BEFORE THE LD. FIRST APPELLATE AUTHOR ITY. AS PER ASSESSMENT ORDER, THE AO ASKED THE ASSESSEE TO PRODUCE THE DON OR, MISS. GOPI AHUJA, AS PER ORDER SHEET DATED 23.11.2007 BUT HE HAS NOT GIV EN SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE DONOR AND HE HAS COM PLETED THE ASSESSMENT ON 27.12.2007 BY MAKING TWO ADDITIONS I.E. ONE ON ACC OUNT OF GIFT OF RS. 1 LAC WHICH IS IN DISPUTE IN THE PRESENT APPEAL AND THE SECOND ADDITION ON ACCOUNT OF DIFFERENCE IN VALUATION OF RS.1,31,433/- WHICH H AS BEEN DELETED BY THE LD. CIT(A) IN THE IMPUGNED ORDER. IT IS NOT DOUBTED B Y THE AO AS WELL AS BY THE LD. FIRST APPELLATE AUTHORITY THAT THE DONOR MI SS GOPI AHUJA IS NOT INCOME-TAX ASSESSEE AND IS NOT A REAL DAUGHTER OF T HE ASSESSEE. IT IS ALSO NOT DOUBTED BY THE REVENUE AUTHORITY THAT THE DONOR HAS NOT SHOWN GIFT AMOUNTING TO RS. 2 LACS IN DISPUTE, WHICH INCLUDED RS.1 LAC GIFT GIVEN TO HER ITA NO.17(ASR)/2012 6 FATHER, IN THE BALANCE SHEET AS AT 31.03.2005 ATTAC HED WITH PAPER BOOK FILED BY THE ASSESSEE BEFORE US. WE HAVE ALSO PERUSED TH E CONFIRMATION LETTER FILED BY THE DONOR CERTIFYING THAT SHE HAS GIVEN GIFT OF RS. 1 LAC TO HER FATHER OUT OF HER TAXABLE INCOME AND OUT OF NATURAL LOVE AND A FFECTION. BUT THE REVENUE AUTHORITIES IN A ROUTINE MANNER DISALLOWED THE GIFT IN DISPUTE BY FOLLOWING THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH C OURT IN THE CASE OF LAL CHAND KALRA. BOTH THE AUTHORITIES BELOW HAVE NOT M ENTIONED THE CITATION OF THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH C OURT IN THE CASE OF LAL CHAND KALRA AND DECIDED THE ISSUE IN A ROUTINE MANN ER. WE HAVE PERUSED THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LALL CHAND KALRA VS. CIT REPORTED IN (1981) 22 CTR (P&H) 135 AND WE FOUND THAT IN THE ABOVE MENTIONED CASE, DONATION HAS BEE N GIVEN TO THE ASSESSEE NOT FROM BLOOD RELATION, ONE IS FROM STRANGER AND THE OTHER IS FROM A RELATIVE WHO HAD MORE IMPORTANT LIABILITIES AND CANNOT GIVE A GIFT TO THE ASSESSEE AND THE DONOR HAS FAILED TO PRODUCE ANY EVIDENCE TO PR OVE THEIR CAPABILITY TO GIVE GIFT. THEREFORE, THE REVENUE AUTHORITIES HAVE WRONGLY APPLIED THE CASE OF LALL CHAND KALRA VS. CIT (P&H) (SUPRA) IN THE CA SE OF THE ASSESSEE WITHOUT GOING THROUGH THE FACTS OF THE CASE. THE RE VENUE AUTHORITY HAS ALSO RELIED UPON THE FOLLOWING CASE LAWS AND DECIDED THE CASE AGAINST THE ASSESSEE: ITA NO.17(ASR)/2012 7 I) CIT VS. SHAMSHUDDIN MANZOOR HAQUE 172 ITR 696 (ALL) (1988) II) ITO VS. SMT. USHA AGGARWAL 38 SIT 191 (DEL) (2 010 III) MRS. ASHA M. AGARWAL VS. ITO 41 SOT 30 (MUM) (2010) 7.1. WE HAVE ALSO PERUSED THE AFORESAID CASE LAWS A ND WE ARE OF THE VIEW THAT THESE ARE NOT APPLICABLE TO THE CASE OF THE A SSESSEE BECAUSE THE CASE OF THE ASSESSEE IS VERY GENUINE IN WHICH THE GIFT HAS BEEN GIVEN BY THE REAL DAUGHTER TO HER REAL FATHER WITH SUFFICIENT EVIDENT PROVING THE CREDITWORTHINESS, GENUINENESS AND IDENTITY OF THE D ONOR WHICH ARE VERY MUCH AVAILABLE WITH THE DEPARTMENT ITSELF. WE ARE OF THE VIEW THAT THE A.O. HAS DISALLOWED THE GIFT IN DISPUTE OF THE ASSESSEE MAI NLY ON THE GROUND THAT THE ASSESSEE HAS NOT PRODUCED HER DAUGHTER (DONOR) I.E. MISS. GOPI AHUJA BEFORE HIM. EVEN OTHERWISE, WHEN THE MATTER IS VERY CLEAR REGARDING GIVING GIFT BY THE REAL DAUGHTER TO HER REAL FATHER, WHICH HAS BEE N SHOWN IN THE INCOME TAX RETURN FOR THE ASSESSMENT YEAR IN DISPUTE AND THE D ONOR HAS ALSO FILED CONFIRMATION LETTER. WE FAIL TO UNDERSTAND WHY THE AO WAS PRESSING TO THE ASSESSEE TO PRODUCE BEFORE HIM THE DONOR, MISS GOP I AHUJA, WHICH CAN BE AVOIDED UNDER THE CIRCUMSTANCES AND KEEPING IN VIE W THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE AO. THE LD. FIR ST APPELLATE AUTHORITY HAS ALSO DISMISSED THE APPEAL FILED BY THE REVENUE IN A ROUTINE MANNER WITHOUT GOING THROUGH THE FACTS AS WELL AS THE CASE LAWS RELIED UPON BY THE ASSESSES ITA NO.17(ASR)/2012 8 COUNSEL AS WELL AS BY THE A.O. WE ARE OF THE VIEW T HAT KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES EXPLAINED ABOVE, WE ARE UNA BLE TO SUSTAIN THE IMPUGNED ORDER, THEREFORE, WE CANCEL THE SAME BY DE LETING THE ADDITION IN DISPUTE. THE APPEAL OF THE ASSESSEE IS ACCODINGLY A LLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 11TH JANUARY, 2013. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11TH JANUARY, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. HARISH AHUJA, AMRITSAR. 2. THE ACIT CIR.III, ASR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.