ACIT, BIKANER V. Shri Deepak Agarwal S/o Sh. Shiv Ratan Agarwal, BIKANER

ITA 590/JODH/2007

• Counselvise Citation: 59023314 RSA 2007
• Duration Of Justice: 4 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-11-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 16-07-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: U C JAIN
• Keywords: Gift
• Section: 68; 148

Judgement Text

1 ITA 590(2)-07 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 590/JODH/2007 ASSTT. YEAR : 2002-03. THE ACIT, CIRCLE-1, VS. SHRI DEEPAK AGARWAL S/ O BIKANER. SHRI SHIV RATAN AGARWAL, BACHHAWATON KA MOHALLA, BIKANER. (APPELLANT) (RESPONDENT) C.O. NO. 26/JP/2008 ( ARISING OUT OF ITA NO. 590/JP/2007 ) ASSTT. YEAR : 2002-03. SHRI DEEPAK AGARWAL, VS. THE ACIT, CIRCLE-1, BIKANER. BIKANER. (CROSS OBJECTOR) (RESPONDENT) APPELLANT BY : SHRI G.R. KOKANI RESPONDENT BY : SHRI U.C. JAIN DATE OF HEARING : 29.11.2011. DATE OF PRONOUNCEMENT : 09.12.2011. ORDER DATED : 09.12.2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AND CROSS OBJECTIO N BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2002-03. 2. FIRST ISSUE IN APPEAL OF THE DEPARTMENT IS AGAIN ST DELETING THE ADDITION OF RS. 12,500/- MADE BY ASSESSING OFFICER ON ACCOUNT OF SA LARY INCOME. 2 3. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS CLAIMED STATUTORY DEDUCTION AT RS. 30,000/-. A S PER FORM NO. 16, THE DEDUCTION WAS REDUCED TO RS. 17,500/-. ACCORDINGLY, THE DIFFERENC E AS PER COMPUTATION AND AS PER FORM NO. 16 WAS ADDED TO THE INCOME OF THE ASSESSEE WHIC H WAS AT RS. 12,500/-. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT STATUTORY DEDUCTI ON AS PER LAW PERMISSIBLE IS RS. 30,000/- IN THE ASSESSMENT YEAR 2002-03. THEREFORE , IN FORM NO. 16 SOME OTHER AMOUNT IS MENTIONED DOES NOT CHANGE THE FACTUM. THE LD. CI T (A) WAS SATISFIED WITH THIS CONTENTION. ACCORDINGLY, HE ALLOWED THE GROUND IN F AVOUR OF THE ASSESSEE. 4. AFTER CONSIDERING THE ORDERS OF THE ASSESSING OF FICER AND LD. CIT (A), WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A) WHO ALLOWED THE STATUTORY DEDUCTION UNDER SECTION 16 AS PER PROVISIONS OF LAW. ACCORDINGLY, WE CONFI RM THE FINDING OF LD. CIT (A). THE GROUND OF THE ASSESSEE IS ALLOWED. 5. REMAINING GROUND IN THE APPEAL OF THE DEPARTMENT IS AGAINST DELETING ADDITION OF RS. 24,12,500/- MADE BY ASSESSING OFFICER ON ACCOUN T OF UNEXPLAINED GIFT RECEIVED FROM SHRI ALOK P. JAIN IN THE FORM OF RESURGENT INDIA BO NDS (RIB). 6. DURING THE ASSESSMENT, THE ASSESSING OFFICER NOT ICED THAT ASSESSEE HAS SHOWN A GIFT OF RIB FOR RS. 24,12,500/-. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE GENUINENESS OF THE GIFT. IT WAS EXPLAINED THAT SHRI ALOK P. JAIN I S A NRI AND HAS NO CLOSE RELATIONSHIP WITH THE ASSESSEE. THE ASSESSING OFFICER NOTICED T HAT M/S. ABN AMRO NOMINEES SINGAPORE WAS THE ORIGINAL ALLOTTEE OF THE RIB REPO RTED TO HAVE GIVEN GIFT TO THE ASSESSEE. THE INTERVAL OR TIME LAG BETWEEN THE PURCHASE OF B ONDS BY SHRI ALOK P. JAIN FROM ABN AMRO NOMINEES SINGAPORE AND GIFT OF THE SAME TO THE ASSESSEE WAS BARELY TWO DAYS. THE ASSESSING OFFICER CONSTRUED THIS SHORT TIME FRAME A S INDICATIVE OF THE TAINTED OR 3 COLOURABLE NATURE OF THIS TRANSACTION OF GIFT. IT WAS STATED THAT FROM THIS CIRCUMSTANTIAL EVIDENCE, IT IS PROVED BEYOND DOUBT THAT THESE BOND S WERE ACTUALLY PURCHASED BY THE ASSESSEE HIMSELF AFTER MAKING PAYMENT THEREOF THOUG H THE TRANSACTIONS WERE ROUTED THROUGH SHRI ALOK P. JAIN. IT WAS THE CONTENTION O F ASSESSING OFFICER THAT THE GENUINENESS OF GIFT WAS FURTHER UNDERMINED BY THE S TATEMENT OF ASSESSEE RECORDED ON 13.03.06 IN RESPONSE TO QUERY NO. 20 AND 21. WHILE GIVING ANSWER TO THE QUERY THE ASSESSEE STATED THAT HE PURCHASED SHARES @ RS. 2.50 PER SHARE IN HIS OWN NAME FROM ALOK P. JAIN IN THE YEAR 2000. IN REPLY TO QUERY NO. 21 THE ASSESSEE STATED THAT AS PER HIS KNOWLEDGE THERE HAS NOT BEEN ANY TRANSACTION OF GIF T AMONG THE FAMILY MEMBERS OF SHRI ALOK P. JAIN AND HIS OWN. 7. IT WAS CONTENDED BEFORE LD. CIT (A) THAT THE ASS ESSEE RECEIVED GIFT OF RS. 24,12,500/- (50,000 U.S.DOLLAR) IN THE FORM OF RESU RGENT INDIA BOND. THE RIBS ARE BANK INSTRUMENTS REPRESENTING FOREIGN CURRENCY DENOMINAT ED DEPOSITS IN INDIA IN THE FORM OF PROMISSORY NOTES AND OFFERED BY STATE BANK OF INDIA TO NRIS. THESE BONDS ARE STATED TO BE TRANSFERABLE BY WAY OF GIFT ONCE ONLY TO RESIDEN T INDIANS BY NRI. THE BONDS WERE GIFTED BY SH. ALOK P. JAIN TO THE ASSESSEE WITH PER MISSION OF SBI. THE BANK ACCORDED PERMISSION AFTER EXAMINATION OF IDENTITY AND GENUIN ENESS OF THE DONOR. THE LETTER ISSUED BY RBI/SBI GIVING AWAY PERMISSION OF GIFT WHICH WAS ALSO FURNISHED TO THE ASSESSING OFFICER BY THE ASSESSEE WAS PRODUCED BEFORE ME. AS FOR ALOK P. JAIN, THE DONOR, IT IS STATED THAT HE IS NRI SINCE LONG BACK AND ENJOYING NRI STATUS. A ZEROX OF PASSPORT OF SH. ALOK P. JAIN WAS FURNISHED. HIS NRI STATUS IS FURTH ER CORROBORATED BY THE PERMISSION FOR TRANSFER OF RIB BY WAY OF GIFT IN FAVOUR OF THE ASS ESSEE. THE RIBS CAN ONLY BE ONCE GIFTED 4 BY NRIS TO THE RESIDENT INDIAN. IT IMPLIES AND ESTA BLISHES BEYOND DOUBT THE STATUS OF SH. ALOK P. JAIN AS NRI. 8. AS FOR THE ALLEGATION OF LD. ASSESSING OFFICER T HAT THE ASSESSEE DENIED TO HAVE RECEIVED ANY GIFT FROM ALOK P. JAIN AND HIS HAVING PURCHASED SHARES @ RS. 2.50 PER SHARE IN THE YEAR 2000, THE ASSESSEE STATED THAT THERE IS NO GRAIN OF TRUTH IN THE ALLEGATION OF LD. ASSESSING OFFICER. THERE WAS NO SPECIFIC QUERY PUT FORTH BY THE LD. ASSESSING OFFICER AS REGARDS HAVING RECEIVED ANY GIFT BY THE ASSESSEE FR OM SH. ALOK P. JAIN. THE ASSESSING OFFICER ASKED ABOUT THE RECEIPT OF GIFT AMONG THE F AMILY MEMBERS OF THE ASSESSEE AND THAT OF SH. ALOK P. JAIN. NOWHERE IT WAS ASKED SPECIFICA LLY WHETHER THE ASSESSEE HIMSELF HAS RECEIVED ANY FT FROM SH. ALOK P. JAIN. IT WAS HELD IN THE CASE OF MANJU DEVI NAWAL VS. ACIT 34 TW 253 THAT STATEMENT OF ASSESSEE CAN NOT B E MADE THE BASIS FOR DECIDING AN ISSUE ON WHICH NO SPECIFIC QUESTION WAS ASKED. THE LD. ASSESSING OFFICER ACTED ON THE BASIS OF ASSUMPTION AND PRESUMPTION AND WAS GUIDED BY SURMISES AND CONJECTURES. IN THE ABSENCE OF ANY SPECIFIC QUERY BEING PUT FORTH REGAR DING THE RECEIPT OF GIFT FROM ALOK P. JAIN, IT CANNOT BE CONSTRUED OR INTERPRETED THAT TH E ASSESSEE HAS DENIED TO HAVE RECEIVED GIFT FROM ALOK P. JAIN. SUCH A PRESUMPTION IS PUREL Y HYPOTHETICAL, OUT OF CONTEXT AND AWAY FROM GROUND REALITY. 9. THE ASSESSEE STATED THAT ONLY SHARES WERE PURCHA SED. IT WAS SUBMITTED THAT THE LD. ASSESSING OFFICER DISTORTED THE FACTS AND CONCLUDED IT AS A PURCHASE OF BOND. IT TANTAMOUNTS TO FABRICATION OF CONCOCTED STORY. THER E IS A WORLD OF DIFFERENCE BETWEEN THE SHARES & BONDS. IT WAS URGED THAT MANY A TIMES THE ASSESSEE GETS BEWILDERED AND CONFUSED AT THE TIME OF RECORDING OF STATEMENT. THE PREDICAMENT OF ASSESSEE IS VERY MUCH UNDERSTANDABLE IN VIEW OF YOUNG AGE. THERE HAS NOT BEEN ANY SUCH PURCHASE BY ASSESSEE 5 FROM ALOK P. JAIN. THE STATEMENT IS AWAY FROM GROUN D REALITY. IT WAS FURTHER ARGUED THAT THE SAID STATEMENT IS NOT SUBSTANTIATED OR CORROBOR ATED BY ANY OTHER DOCUMENT ON RECORD. 10. WHEN DURING THE COURSE OF ASSESSMENT PROCEEDING WHEN THE ASSESSEE WAS APPRISED OF THE PRESUMPTION THAT HE HAS DENIED TO HAVE RECEI VED GIFT FROM ALOK P. JAIN. THE ASSESSEE FILED DETAILED AFFIDAVIT AND MADE SUBMISSI ON VIDE LETTER DT. 14.12.06. THE SAID AFFIDAVIT IS PLACED ON RECORD AND PERUSED. IN THE A FFIDAVIT AND SUBMISSION IT WAS STATED THAT HE HAS RECEIVED A GIFT OF USD 50000/- IN RIB F ROM SH. ALOK P. JAIN. IT WAS CONTENDED THAT THE ASSESSING OFFICER ALTOGETHER WIN KED OVER THE AFFIDAVIT AND SUBMISSION. 11. IT WAS URGED THAT THE AFFIDAVIT OF THE ASSESSEE CLEARED THE MIST AND CATEGORICALLY ACKNOWLEDGED TO HAVE ACCEPTED GIFT OF RIB FROM SH. ALOK P. JAIN. THE STATEMENT OF ASSESSEE WAS CATEGORIC AND UNCONTROVERTED. THE SAM E BE REGARDED AS GOSPEL OF TRUTH AND BE ACCEPTED IN TOTO/ENTIRETY IN VIEW OF THE CLEAR C UT LEGAL POSITION. IT WAS SUBMITTED THAT THE INFERENCE OF LD. ASSESSING OFFICER ABOUT THE DE NIAL OF ASSESSEE OF HAVING RECEIVED GIFT IS HYPOTHETICAL AND BASED ON SHEER ASSUMPTION, PRES UMPTION AND GUESS WORK. THE SAME WAS HELD TO BE NOT TENABLE IN THE LIGHT OF WRONG IN TERPRETATION MADE BY THE ASSESSING OFFICER AND POSITIVE EVIDENCE ADDUCED BY THE ASSESS EE. THE ASSESSEE PLACED RELIANCE ON THE CASES OF UTTAM CHAND NAHAR, 28 TW 285, BANSHILA L MALHOTRA V. DCIT, 31 TW 67, PARAS COTTON V. CIT 30 TW 168 AND 30 ITR 181 (HON'B LE SUPREME COURT), IN SUPPORT OF HIS CONTENTION. 12. AS REGARDS ALLEGATION OF HOLDING PERIOD OF SH. ALOK P. JAIN BEING OF TWO DAYS THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE PERIOD WA S NOT TWO DAYS BUT IT WAS ONE AND HALF MONTH. IT IS FURTHER STATED THAT THE PERIOD I.E. 10 .10.01 TO 20.11.01 DURING WHICH THE DONOR SH. ALOK P. JAIN WAS EITHER REGISTERED OR BENEFICIA RY OWNER OF BONDS. THE ASSESSEE FOR THE 6 SAKE OF ARGUMENT PRESUMED THAT THESE BONDS WERE ACT UALLY PURCHASED BY THE ASSESSEE HIMSELF AFTER MAKING A PAYMENT THEREOF THOUGH THE T RANSACTIONS WERE MERELY ROUTED THROUGH SH. ALOK P. JAIN. IN OTHER WORDS, IT WAS T HE ALLEGATION OF LD. ASSESSING OFFICER THAT ALOK P. JAIN WAS A CONDUIT IN THIS SCHEME OF T RANSACTION. IT IS A PRESUMPTION AND SHEER IMAGINATION OF THE LD. ASSESSING OFFICER. IT WAS STATED THAT THERE WAS NO COMPELLING REASON FOR THE ASSESSEE TO ROUTE THE TRANSACTION AS CONTEMPLATED BY THE ASSESSING OFFICER. IF HE HAD TO GET THE MONEY FROM SH. ALOK P. JAIN HE COULD HAVE SIMPLY GOT THE SAME IN USD OR ANY OTHER FOREIGN CURRENCY. DURING THE ASSE SSMENT YEAR I.E. 2002-03 UNDER REVIEW GIFT FROM ANYBODY IRRESPECTIVE OF ANY RELATI ONSHIP WAS EXEMPT IN THE HANDS OF BOTH DONOR AND DONEE. THE LAW MAKING THE RECEIPT OF GIFT FROM OTHER THAN RELATIVES CAME INTO FORCE WITH EFFECT FROM THE ASSESSMENT YEAR 200 5-06. IT WAS CONTESTED THAT TO DRAW ADVERSE INFERENCE FROM THE SMALL HOLDING PERIOD OF BONDS BY THE DONOR IS UNJUSTIFIED. THE CASE OF CHUNILAL V. ITO 30 TW 223 WAS CITED IN WHIC H IT WAS HELD THAT NO ADDITION CAN BE MADE U/S 68 WITHOUT MAKING INDEPENDENT INQUIRIES AF TER REJECTING THE EXPLANATION OF ASSESSEE. 13. IN ORDER TO ESTABLISH GENUINENESS OF THE GIFT T HE ASSESSEE STATED THAT THE GIFT HAS BEEN RECORDED BY THE GOVT. AGENCY I.E. SBI AND CATE GORICALLY ACCEPTED TO HAVE BEEN RECEIVED BY THE ASSESSEE. THE LD. A/R OF THE ASSES SEE CITED THE CASE OF NEM KUMAR V. ACIT HON'BLE RAJASTHAN HIGH COURT 32 TW 183 IN WHIC H IT WAS HELD THAT A GIFT CANNOT BE TREATED AS NON GENUINE MERELY ON CONJECTURES AND SU RMISES WITHOUT BRINGING SUFFICIENT CORROBORATIVE EVIDENCE ON RECORD TO REJECT THE EVID ENCE FILED BY ASSESSEE. FURTHER HELD BY THE HONBLE RAJ. HIGH COURT IN SUPRA THAT WHERE DON OR HAVING GIVEN AN AFFIDAVIT AND FILED A DECLARATION THAT HE HAD GIVEN THE GIFT TO THE ASS ESSEE AND THERE BEING NO MATERIAL 7 EVIDENCE WHAT SO EVER TO SHOW THAT MONEY DEPOSITED BY ASSESSEE OR BY ANY RELATIVE IN THE BANK FROM WHERE IT CAME BACK TO THE ASSESSEE, THE G IFT CANNOT BE TREATED AS NON GENUINE AND THEREFORE ADDITION WAS NOT JUSTIFIED. THE CASE OF NARINDER KR. V. ACIT 81 ITJ 1036 WAS ALSO CITED IN WHICH IT WAS HELD THAT THE GIFT W AS RECEIVED BY ASSESSEE THROUGH BANKING CHANNELS AND MONEY WAS RECEIVED FROM U.K. IT IS NO T THE CASE OF THE DEPT. THAT THE ASSESSEE SENT THE MONEY TO U.K. AND CONVERTED THE S AME INTO POUNDS AND THE SOMEBODY ON BEHALF OF THE ASSESSEE SENT THE MONEY AGAIN TO T HE ASSESSEE IN INDIA. 14. THE ASSESSEE ADMITTED THAT SHRI ALOK P. JAIN IS NEITHER A CLOSE RELATIVE OF ASSESSEE NOR HAD ANY INTIMATE RELATIONSHIP WITH HIM. IN THI S CONNECTION IT WAS SUBMITTED THAT RELATION IS NOT MANDATORY FOR THE PURPOSE OF GIFT. THE LAW HAS BEEN AMENDED IN THE ASSESSMENT YEAR 2004-05. PRIOR TO THAT GIFT COULD B E TAKEN FROM ANYBODY AND WAS NOT TAXABLE. IT WAS HELD IN THE CASE OF THE HON;BLE DEL HI HIGH COURT IN CIT VS. MRS. SUNITA VACHANI 184 ITR 121 THAT EVEN THOUGH IT MAY BE SURP RISING AS TO HOW LARGE SUMS OF MONEY ARE RECEIVED BY A FAMILY IN INDIA BY WAY OF G IFTS FROM STRANGERS FROM ABROAD, UNLESS THERE IS SOMETHING MORE TANGIBLE THAN SUSPIC ION, IT WILL BE DIFFICULT TO REGARD THE MONEYS RECEIVED IN INDIA FROM ABROAD AS REPRESENTIN G THE INCOME OF THE ASSESSEE IN INDIA. 15. THE LD. COUNSEL OF THE ASSESSEE STATED THAT GIF T CANNOT CONSIDERED AS NON-GENUINE FOR THE REASON THAT THERE WAS NO NATURAL LOVE AND A FFECTION AND BLOOD RELATIONSHIP BETWEEN THE DONORS AND DONEE. THE DEFINITION OF GIFTS AS GI VEN UNDER SECTION 2(XII) OF THE GIFT TAX ACT, 1958 WAS DELIBERATED UPON AND DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. R.S. SIBAL (2004) 269 ITR 429 (DEL.) WAS RE FERRED TO IN WHICH IT WAS HELD THAT THERE WAS NO NEED TO ESTABLISH NATURAL LOVE AND AFF ECTION BETWEEN THE DONOR AND DONEE IN ORDER TO LOOK INTO THE GENUINENESS OF GIFTS. THE C ASE OFASHWANI KUMAR GARG V. 8 ASSESSING OFFICER (1998) 97 TAXMAN 271 (ASR.)(MAG.) WAS ALSO REFERRED WHERE IT WAS HELD THAT SIMPLY BECAUSE THERE WAS NO RELATIONSHIP IT COULD NOT BE ASSUMED THE GIFT COULD NOT BE GIVEN TO A FRIEND IN THE TIME OF NEED. IN T HE MODERN SOCIETY FRIENDSHIP IS MORE VALUABLE THAN RELATIONSHIP. 16. IT WAS ARGUED THAT ANY MOTIVE IS NOT PREREQUISI TE FOR FOR MAKING SUCH GIFT. IT WAS STATED THAT THE DEFINITION OF GIFT DOES NOT PRESCRI BE OR CALL FOR ANY SPECIFIC PURPOSE OR MOTIVE BEHIND GIFT. THE CASE OF MANJU DEVI NAWAL V . ACIT 34 TW 253 WAS QUOTED IN WHICH IT WAS HELD THAT NO SPECIAL OCCASION IS REQUI RED FOR MAKING A VALID GIFT. ALSO HELD IN 155 TAXMAN 164 THAT WHERE ASSESSEE RECEIVED GIFT FROM PERSON WHO HAS BEEN RENDERED HELP IN BAD TIMES, THROUGH BANKING CHANNEL THEN GEN UINENESS OF GIFT CANNOT BE CHALLENGED. 17. THEREAFTER LD. CIT (A) AFTER DISCUSSING DETAILE D SUBMISSIONS HELD THAT THE AFFIDAVIT AFFIRMING THE GIFT REMAINED UNCONTROVERTED AND TRAN SFER OF BONDS INVOLVED IN GIFT WAS ISSUED BY NONE OTHER THAN STATE BANK OF INDIA. THE REFORE, THERE WAS NO REASON TO SUSPECT THAT THE GIFT WAS NOT GENUINE. ACCORDINGLY, HE DEL ETED THE ADDITION. 18. THE LD. D/R HAS PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 19. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSES SEE PLACED RELIANCE ON THE ORDER OF LD. CIT (A). 20. AFTER CONSIDERING THE ORDERS OF THE ASSESSING O FFICER AND LD. CIT (A), WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A). THE LD. C IT (A) HAS ASCERTAINED THE FACTUAL ASPECT. EACH AND EVERY DETAIL HAS BEEN EXAMINED BY LD. CIT (A). THE ASSESSING OFFICER MADE THE ADDITION SUSPECTING THAT THIS IS ASSESSEES OWN MONEY WHICH WAS INVESTED TO PURCHASE RIB IN THE NAME OF SHRI ALOK P. JAIN. THERE IS NO EVIDENCE AT ALL THAT ASSESSEE HAD 9 INVESTED HIS OWN MONEY IN PURCHASE OF RIB GIFT IN T HE NAME OF SHRI ALOK P. JAIN. SHRI ALOK P. JAIN HAS CATEGORICALLY ADMITTED THAT HE HAS PURCHASED THE RIB FROM HIS OWN SOURCES. THE SOURCE OF PURCHASE OF BONDS WAS FROM HIS NRI ACCOUNT. THE RIB PURCHASED BY ASSESSEE WAS TRANSFERRED BY STATE BANK OF INDIA IN THE NAME OF ASSESSEE. THEREFORE, THERE CANNOT BE A SUSPICION IN RESPECT T O GENUINENESS OF THE TRANSACTION. SHRI ALOK P. JAIN HAS FILED HIS AFFIDAVIT ACCEPTING THAT HE PURCHASED RIB FROM HIS OWN SOURCES AND THEREAFTER GIFTED TO THE ASSESSEE. THE CONTENT S OF THE AFFIDAVIT REMAIN UNCONTROVERTED. THERE IS NO NEED FOR ANY OCCASION FOR MAKING GIFT A S GIFT CAN BE MADE AT ANY TIME BY ANYBODY TO ANY ONE. HOWEVER, THERE SHOULD BE SOME DETAILS IN RESPECT TO GIFT IN WRITING AND ALL THESE DETAILS ARE AVAILABLE. A LETTER WAS ISSUED BY RBI/SBI GIVING PERMISSION OF GIFT WHICH WAS FURNISHED BEFORE THE ASSESSING OFFIC ER AND ALSO BEFORE LD. CIT (A). THE DONOR IS A NRI AND ENJOYING NRI STATUS. A PHOTOSTA T COPY OF PASSPORT WAS ALSO FILED. ONE OF THE ALLEGATION OF THE ASSESSING OFFICER THAT ASSESSEE HAS DENIED HAVING RECEIVED ANY GIFT FROM SHRI ALOK P. JAIN WAS FOUND INCORRECT AT THE END OF THE LD. CIT (A). IN FACT, DURING THE ASSESSMENT PROCEEDINGS STATEMENT OF THE ASSESSEE WAS RECORDED AND A QUESTION WAS PUT BEFORE HIM THAT WHETHER GIFT HAS BEEN RECEI VED BY HIS FAMILY MEMBERS OR NOT. IN REPLY, IT WAS STATED THAT NO GIFT WAS RECEIVED BY H IS FAMILY MEMBERS. FROM THIS REPLY, THE ASSESSING OFFICER DREW AN INFERENCE THAT ASSESSEE H AS CATEGORICALLY ADMITTED THAT HE HAS NOT RECEIVED ANY GIFT. HOWEVER, THE CLARIFICATION GIVEN BY ASSESSEE THAT THE QUESTION WAS PUT WHETHER ANY GIFT HAS BEEN RECEIVED BY HIS FAMIL Y MEMBERS, AND, THEREFORE, IT WAS STATED THAT HIS FAMILY MEMBER HAS NOT RECEIVED ANY GIFT. NO QUESTION WAS PUT THAT WHETHER HE HAS RECEIVED ANY GIFT OR NOT. THEREFORE , REPLY WAS GIVEN IN NEGATIVE. THE LD. CIT (A) HAS ASCERTAINED THIS FACTUAL ASPECT. FURTH ER, VARIOUS CASE LAWS WERE RELIED UPON 10 BEFORE LD. CIT (A) AND THEY HAVE BEEN CONSIDERED BY HIM AND ALL THOSE DECISIONS ARE IN FAVOUR OF THE ASSESSEE. KEEPING IN VIEW ALL THESE FACTS AND CIRCUMSTANCES AND DETAILED SUBMISSIONS FILED BEFORE LD. CIT (A), WE FIND THAT LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION ON ACCOUNT OF GIFT OF RIB. ACCORDINGLY, W E CONFIRM THE ORDER OF LD. CIT (A) IN THIS RESPECT. 21. THE ASSESSEE HAS FILED CROSS OBJECTION RAISING LEGAL GROUND THAT INITIATION OF PROCEEDINGS UNDER SECTION 148 WAS BAD IN LAW. 22. SINCE WE HAVE ALREADY CONFIRMED THE ORDER OF LD . CIT (A) WHO DELETED THE IMPUGNED ADDITION MADE BY ASSESSING OFFICER, THEREF ORE, WE FEEL THAT THERE IS NO NECESSITY TO DECIDE THE LEGAL GROUND AT THIS STAGE. ACCORDINGLY, THE LEGAL GROUND RAISED BY ASSESSEE IS NOT DECIDED NOW. 23. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED AND CROSS OBJECTION OF THE ASSESSEE IS DISPOSED OFF AS ABOVE. 24. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 .12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- THE ACIT, CIRCLE-1, BIKANER. SHRI DEEPAK AGARWAL, BIKANER. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 590(2)/JODH/2007) BY ORDER, AR ITAT JODHPUR. 11