ANOOP JAIN, NEW DELHI V. ITO, WARD- 70(3), NEW DELHI

ITA 5968/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1378 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 17-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: NISHA SINGH
• Keywords: Gift; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.5968/DEL./2018 ASSESSMENT YEAR 2015-2016 SHRI ANOOP JAIN, F-44, GREEN PARK, NEW DELHI 110 049. PAN ACLPJ6529Q VS., THE INCOME TAX OFFICER, WARD 70(3), CIVIC CENTRE, NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : MS. NISHA SINGH, C.A. FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. DATE OF HEARING : 29.08.2019 DATE OF PRONOUNCEMENT : 11.09.2019 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-21, NEW DELHI, DATED 20.07.2018, FOR THE A.Y. 2015-2016, CHALLENGING THE ADDITION OF RS.2,30,000/- ON ACCOUNT OF CASH GIFT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT RETURN O F INCOME WAS FILED BY ASSESSEE DECLARING TOTAL INCOME OF RS.13,41,000/-. THE CASE WAS SELECTED FOR SCRUTINY. THE A.O. ON PERUSAL OF THE RECORD FOUND THAT ASSESSEE H AD 2 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. DEPOSITED CASH AMOUNT OF RS.2,30,000/-. SHOW CAUSE NOTICE WAS ISSUED. THE ASSESSEE FILED REPLY STATING THEREI N THAT ASSESSEE HAS RECEIVED CASH GIFT FROM HIS MOTHER SMT . KAMLA JAIN ON DIFFERENT DATES AND OUT OF THE SAID GIFT AM OUNT OF RS.2,30,000/- HAD BEEN DEPOSITED BY THE ASSESSEE. T HE ASSESSEE HAS NOT FILED THE GIFT DEED AND ONLY COPY OF ITR OF SMT. KAMLA JAIN FOR THE A.Y. 2015-2016 WAS FILED. T HE A.O, THEREFORE, HELD THAT THE SAME WOULD NOT PROVE THE CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF T HE TRANSACTION IN THE MATTER. THE A.O. ACCORDINGLY TRE ATED RS.2,30,000/- AS UNDISCLOSED INCOME OF ASSESSEE AND MADE THE ADDITION. 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND IT WAS SUBMITTED THAT DURING ASSESSM ENT YEAR UNDER APPEAL, ASSESSEE HAS SOLD 1/5 TH SHARE OF ANCESTRAL PROPERTY FOR RS.2.80 CRORES WHICH IS ACQU IRED THROUGH WILL OF HIS DECEASED FATHER AND SIMILARLY, MOTHER OF THE ASSESSEE/DONOR HAS SOLD HER 1/5 TH SHARE IN THE ABOVE PROPERTY FOR A SUM OF RS.2.80 CRORES. THE A.O. ASKE D FOR THE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT OF 3 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. RS.2,30,000/- ON DIFFERENT DATES. THE ASSESSEE RECE IVED GIFT FROM HIS MOTHER. COPY OF THE SALE DEED WAS FILED AL ONG WITH HER PAN. THEREFORE, ASSESSEE PROVED GENUINENESS OF THE GIFT IN THE MATTER. THE LD. CIT(A) CONSIDERING THE SUBMI SSIONS OF THE ASSESSEE IN PARA 6.3 OF THE ORDER HELD AS UNDER : THE CONTENTION OF THE ASSESSING OFFICER AND THE SUBMISSION OF THE APPELLANT HAS BEEN CONSIDERED AND FROM THE BANK STATEMENT OF THE MOTHER OF THE APPELL ANT, IT IS APPARENT THAT A CHEQUE OF RS.17,20,000/- WAS DEPOSITED ON 27/12/2014 AND OUT OF THIS CASH WITHDRAWAL OF RS.17,20,000/- WAS MADE ON 02/01/2015 AND RS.70,000/- ON 29/01/2015. THIS HAS NO NEXUS WITH THE CASH DEPOSIT MADE BY THE APPELLANT ON 28/01/2015 OF RS.30,000/-, 11/02/2015 OF RS.40,000/-, 23/02/2015 OF RS.25,000/-, 03/03/2015 OF RS.30,000/-, 10/03/2015 OF RS.40,000/-, 17/03/2015 OF RS.35,000/- AND 24/03/2015 OF RS.30,000/- TOTALING TO RS.2,30,000/- . FROM THE BANK ACCOUNT OF THE MOTHER IT IS ALSO APPA RENT THAT ON 26/01/2015 SIX TRANSFER ENTRIES OF DIFFEREN T 4 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. AMOUNT WERE MADE AND DEPOSITED IN THE BANK ACCOUNT OF THE APPELLANT. THE MOTHER OF THE APPELLANT ALSO COULD HAVE EASILY TRANSFERRED THIS AMOUNT THROUGH BANK ACCOUNT BY RTGS TO THE ACCOUNT OF THE SON I.E. APPE LLANT. THE PREPONDERANCE OF PROBABILITY IS ENTIRELY AGAINS T THE APPELLANT AND ANY PRUDENT PERSON WILL NOT TRANSFER MONEY IN THIS MANNER WHEN BOTH MOTHER AND SON ARE HAVING BANK ACCOUNT AND GOOD BANKING HABIT. JUST BECAUSE THERE IS WITHDRAWAL OF RS.17,20,000/- ON 02/01/2015 AND RS.70,000/- ON 29/01/2015 FROM THE MOTHERS ACCOUNT, THE DEPOSIT IN THE BANK ACCOUNT O F THE APPELLANT ON VARIOUS DATES COULD NOT ESTABLISH THE LINK AS SUBMITTED BY THE APPELLANT. FURTHER, THE APPELLA NT HAS FAILED TO FILE ANY CONFIRMATION FROM THE MOTHER OF THE APPELLANT REGARDING THE SAID TRANSACTION DURING ASSESSMENT, PROCEEDINGS OR DURING APPELLATE PROCEEDINGS. AS PER THE SUBMISSION OF THE APPELLANT , THE APPELLANT HAS ALSO GOT RS.2,80,00,000/- AS SALE CONSIDERATION DURING THE YEAR AND THE APPELLANT HAS 5 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. FAILED TO JUSTIFY THE REASON TO ACCEPT PETTY CASH F ROM THE MOTHER. 3.1. THE LD. CIT(A), ACCORDINGLY, DISMISSED THE AP PEAL OF ASSESSEE FOLLOWING THE RULE OF HUMAN PROBABILITI ES. 4. I HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES. 5. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND R EFERRED TO COPY OF THE SALE DEED TO SHOW THAT DONOR HAS SOL D THE PROPERTY ALONG WITH ASSESSEE AND OTHERS AND HAS SUF FICIENT MEANS TO MAKE THE GIFT. LEARNED COUNSEL FOR THE ASS ESSEE ALSO REFERRED TO BANK STATEMENT OF THE DONOR TO SHO W THAT SHE HAS WITHDRAWN SUFFICIENT CASH TO MAKE GIFT TO T HE ASSESSEE. LEARNED COUNSEL FOR THE ASSESSEE ALSO FIL ED CONFIRMATION CUM- GIFT DEED FROM THE DONOR DATED 28.03.2019. SHE HAS, THEREFORE, SUBMITTED THAT ASSE SSEE PROVED THE GENUINE GIFT IN THE MATTER. 6. ON THE OTHER HAND, LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ASSESSEE 6 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. DID NOT FURNISH ANY DOCUMENTARY EVIDENCES BEFORE TH E AUTHORITIES BELOW TO PROVE THE CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF THE GIFT IN THE MATTER. THE ASSE SSEE SUBSEQUENTLY FILED CONFIRMATION DATED 28.03.2019 WH ICH IS ADDITIONAL EVIDENCE IN NATURE AND CANNOT BE CONSIDE RED IN FAVOUR OF THE ASSESSEE. 7. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE A.O. NOTED THA T ASSESSEE HAS SOLD HOUSE IN WHICH HE WAS HAVING 1/5 TH SHARE FOR A SUM OF RS.2.80 CRORES AND PURCHASED ANOTHER H OUSE AND BASEMENT AT GREEN PARK, NEW DELHI FOR A SUM OF RS.2.90 CRORES. THE ASSESSEE HAS MADE CASH DEPOSITS OF RS.2,30,000/- IN HIS S.B. A/C, THE SOURCE OF WHICH, WAS NOT EXPLAINED BEFORE THE A.O. THE ASSESSEE MERELY CONTE NDED THAT RS.2,30,000/- WAS RECEIVED AS GIFT FROM HIS MO THER SMT. KAMLA JAIN. HOWEVER, NO GIFT DEED WAS FILED BE FORE A.O. THUS, THE ASSESSEE FAILED TO PRODUCE ANY DOCUM ENTARY EVIDENCE BEFORE A.O. TO SUBSTANTIVE GENUINENESS OF THE GIFT IN THE MATTER. SIMILAR IS THE POSITION BEFORE THE L D. CIT(A). ULTIMATELY ASSESSEE CLAIMED THAT MOTHER OF THE ASSE SSEE HAS 7 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. GIFTED THE AMOUNT IN CASH AFTER MAKING WITHDRAWAL F ROM HER BANK ACCOUNT. THE LD. CIT(A) HAS CONSIDERED CASH WITHDRAWALS BY THE DONOR FROM HER BANK A/C AND THE CASH DEPOSIT MADE BY ASSESSEE IN HIS BANK A/C ON DIFFERE NT DATES. THE LD. CIT(A), THEREFORE, RIGHTLY CAME TO T HE CONCLUSION THAT THERE WAS NO NEXUS WITH THE CASH DE POSIT MADE BY ASSESSEE ON DIFFERENT DATES TOTALLING TO RS.2,30,000/- AND THE CASH WITHDRAWAL MADE BY THE D ONOR. NO REASONS HAVE BEEN EXPLAINED WHY THE DONOR HAS NO T GIVEN THE AMOUNT IN CHEQUE DESPITE SHE WAS HAVING S ALE CONSIDERATION OF THE PROPERTY IN HER BANK A/C. THE ASSESSEE DID NOT FILE ANY CONFIRMATION OF THE GIFT AS WELL B EFORE THE AUTHORITIES BELOW. THE ASSESSEE FOR THE FIRST TIME FILED COPY OF THE CONFIRMATION CUM- GIFT DEED BEFORE THE TRIB UNAL DATED 28.03.2019. NO REQUEST HAVE BEEN MADE FOR ADMISSION OF THE ADDITIONAL EVIDENCE. NO REASON HAV E BEEN EXPLAINED WHY THE SAME BE NOT FILED BEFORE THE AUTH ORITIES BELOW. THEREFORE, LD. D.R. RIGHTLY OBJECTED TO THE ADMISSION OF THE SAME AT THIS STAGE. IN THIS VIEW OF THE MATT ER, I EXCLUDE THE CONFIRMATION CUM- GIFT DEED FROM 8 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. CONSIDERATION OF THE ISSUE. IT, THEREFORE, STAND PR OVED ON RECORD THAT ASSESSEE HAS FAILED TO EXPLAIN THE NATU RE AND PURPOSE OF THE GIFT. NO CONFIRMATION AND GIFT DEED WAS FILED FROM THE DONOR. IN THE ABSENCE OF ANY EVIDENCE OR M ATERIAL ON RECORD, THE A.O. HAS CORRECTLY TREATED THE GIFT TO BE NON- GENUINE. THE ASSESSEE FAILED TO PROVE THE CREDITWOR THINESS OF THE DONOR AND GENUINENESS OF THE TRANSACTION IN THE MATTER. NO REASONS OR OCCASION OF GIFT HAVE BEEN FILED ON R ECORD. THE GIFTS HAVE BEEN MADE ON SEVEN DIFFERENT DATES IN CA SH, FOR WHICH, NO EXPLANATION HAVE BEEN GIVEN, DESPITE DONO R WAS MAINTAINING HER BANK A/C. SINCE NO SUFFICIENT EVIDE NCE HAVE BEEN FILED BEFORE THE AUTHORITIES BELOW TO PROVE GE NUINENESS OF THE GIFT IN THE MATTER, THEREFORE, IT IS CLEAR T HAT GIFTS ARE NOT GENUINE GIFTS AND ARE ARRANGED AFFAIRS OF THE A SSESSEE. THUS, ASSESSEE FAILED TO PROVE INGREDIENTS OF GENUI NE GIFT IN THE MATTER. I RELY UPON JUDGMENT OF HONBLE DELHI H IGH COURT IN THE CASE OF CIT VS. ANIL KUMAR 292 ITR 554 (DEL.), JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. P. MOHANKALA 291 ITR 278 (SC) AND JUDGMENT OF HONB LE PUNJAB & HARYANA HIGH COURT IN THE CASE OF YASHPAL GOYAL 9 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. VS. CIT 310 ITR 75. CONSIDERING THE ABOVE DISCUSSIO N, IT IS CLEAR THAT ASSESSEE FAILED TO PRODUCE SUFFICIENT EV IDENCE OR MATERIAL ON RECORD TO PROVE CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF THE GIFT IN THE MATTER. THE HON BLE SUPREME COURT IN THE CASE OF DURGA PRASAD MORE 82 I TR 540 (SC) AND IN THE CASE OF SMT. SUMATI DAYAL 214 I TR 801 (SC) HAVE HELD THAT THE COURTS AND TRIBUNALS HAVE TO JUDGE THE EVIDENCE BEFORE THEM BY APPLYING THE TEST OF HU MAN PROBABILITIES. IF THE SAID TEST IS APPLIED IN THE MATTER, IT IS CLEARLY ESTABLISHED THAT ASSESSEE HAS FAILED TO PRO VE THE GENUINENESS OF THE GIFT IN THE MATTER. I, ACCORDIN GLY, DO NOT FIND ANY MERIT IN THE APPEAL OF ASSESSEE. APPEAL OF ASSESSEE IS ACCORDINGLY DISMISSED. 8. IN THE RESULT, APPEAL OF ASSESSEE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 11 TH SEPTEMBER, 2019 VBP/- 10 ITA.NO.5968/DEL./2018 SHRI ANOOP JAIN, NEW DELHI. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH 6. GUARD FILE //BY ORDER// ASST. REGISTRAR : ITAT : DELHI BENCHES : DELHI. DATE OF DICTATION 29.08.2019 DATE ON WHICH THE TYPED DRAFT ORDER IS PLACED BEFOR E THE DICTATION MEMBER 09.09.2019 DATE ON WHICH THE APPROVAL DRAFT COMES TO THE SR. P S 11.09.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATION MEMBER FOR PRONOUNCEMENT 11.09.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S. 11.09.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 11.09.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11. 09.2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER.