UMESH DUTT SHARMA, Jaipur V. ITO, Dausa

ITA 631/JPR/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5630 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 30-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R.A. VERMA
• Keywords: Gift
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 631/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI UMESH DUTT SHARMA PROP. M/S. SHRI KRISHAN HOSPITAL KRISHNA KUTTIR, BEHIND PURANI NIZAMAT LALSOT ROAD, DAUSA CUKE VS. THE ITO DAUSA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABPDS 1916 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI B.P. MUNDRA, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA, ADDL CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/01/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 25 /01/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 7-05-2015 FOR THE ASSESSMENT YEAR 2010- 11 RAISING THEREIN FOLLOWING GROUND:- THAT ON THE FACTS, IN TOTALITY OF THE CIRCUMSTANC ES AND IN LAW AND IN VIEW OF DETAILED OBJECTIONS/ SUBMISSI ONS MADE BEFORE THE LOWER AUTHORITIES, THE ADDITION AS UNDIS CLOSED INCOME OF RS. 1,80,000/- RECEIVED AS GIFT FROM SHRI KRISHNA DUTT SHARMA, FATHER OF THE ASSESSEE IS BAD IN LAW A ND FACTS ITA NO. 631/JP/2015 SHRI UMESH DUTT SHARMA VS. ITO, DAUSA . 2 AND LD. CIT(A) ERRED IN NOT ALLOWING THE APPEAL AND IS BAD IN LAW AND FACTS. 2.1 APROPOS SOLITARY GROUND OF THE ASSESSEE, THE FA CTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 4.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WEL L AS SUBMISSIONS MADE BY THE APPELLANT AND FIND THAT AN ADDITION OF RS. 1,80, 000 HAS BEEN MADE BY THE AO ON ACCOUNT OF UNEXPLAINED GIFTS RECEIVED BY THE APPELLANT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHILE SCRUTINIZING THE DETAILS OF INCR EASE IN THE CAPITAL ACCOUNT BALANCE, IT WAS FOUND BY THE AO THAT AN AMO UNT OF RS. 3,80,000 HAS BEEN RECEIVED AS GIFTS BY THE APPE LLANT FROM HIS FATHER SH. KRISHAN DUTT SHARMA APART FROM AN AMOUNT OF RS. 90,000 RECEIVED AS GIFT FROM SMT. KIRAN DUTT SHARMA. 4.4 AO HAS TREATED ONLY AN AMOUNT OF RS. 1,80,000 AS UNEXPLAINED GIFT RECEIVED FROM HIS FATHER SH. KRISH AN DUTT SHARMA ON 05-04-2009. THIS AMOUNT WAS STATED TO HAVE BEEN RE CEIVED IN CASH. THE APPELLANT FAILED TO FURNISH ADEQUATE EVIDENCE A ND JUSTIFIABLE REASONS TO EXPLAIN THE SOURCES OF AVAILABILITY OF C ASH IN THE HANDS OF HIS FATHER. THEREFORE, AN AMOUNT OF RS. 1,80,000 CREDIT ED IN THE CAPITAL ACCOUNT OF THE APPELLANT WAS HELD TO BE UNEXPLAINED . 4.5 THE APPELLANT HAS REITERATED THE SUBMISSIONS FI LED BEFORE THE AO AND IT IS SUBMITTED THAT HIS FATHER HAS BEEN REGULARLY FILING INCOME TAX RETURN. A COPY OF THE ITRS FILED BY SH. KRISHAN DUTT SHARMA, A CONFIRMATION LETTER ALONG WITH A COPY OF THE BANK ACCOUNT HAS BEEN FILED TO SUBSTANTIATE. 4.6 HAVING CONSIDERED THE MATERIAL AVAILABLE ON REC ORD, I FIND THAT AO HAS BEEN FAIR AND REASONABLE IN ACCEPTING T HE AMOUNT OF GIFTS RECEIVED THROUGH THE BANKING CHANNELS BY THE APPELL ANT AS GENUINE. HOWEVER, THE AMOUNT OF RS. 1,80,000 RECEIVED IN CAS H FROM SH. KRISHAN DUTT SHARMA COULD NOT BE SATISFACTORILY EXP LAINED WITH EVIDENCE. I HAVE GONE THROUGH THE COPY OF BANK ACC OUNT OF SH. KRISHAN DUTT SHARMA AND DO NOT FIND THE FACT ACCEPT ABLE THAT AN AMOUNT OF RS. 4.45,000 SHOWN TO HAVE BEEN WITHDRAWN IN THE YEAR 2007 FROM THE BANK ACCOUNT AS THE SOURCE OF CASH GI FT HAVING BEEN MADE IN APRIL, 2009. THIS FACT BECOMES MORE PRONOU NCED AS THE RETURNS FILED BY SH. KRISHAN DUTT SHARMA SHOW THAT HE HAS BEEN ENGAGED IN THE BUSINESS OF SALE OF MEDICINES. THER EFORE, THE FACTUM OF HAVING WITHDRAWN CASH OF RS. 4,45,000 ON 14-11-2007 , FOLLOWED BY ITA NO. 631/JP/2015 SHRI UMESH DUTT SHARMA VS. ITO, DAUSA . 3 RS. 90,000 ON 30-04-2008, DOES NOT SUPPORT THE CONT ENTION THAT PART OF THE CASH WITHDRAWN HAS BEEN USED FOR MAKING GIFT IN THE YEAR 2009. THE NORMAL HUMAN CONDUCT, AFTER WITHDRAWING HUGE AM OUNT OF CASH IS TO SUBSEQUENTLY WITHDRAW THE CASH ONLY IF THE AMOUN T WITHDRAWN EARLIER HAS BEEN SPENT. 4.7 THUS, CONSIDERING ALL THESE FACTORS, I DO NOT FIND ANY JUSTIFICATION IN THE ARGUMENTS TAKEN BY THE APPELLA NT AND HOLD THAT AN AMOUNT OF RS. 1,80,000 FOUND CREDITED IN THE CAPITA L ACCOUNT OF THE APPELLANT IS UNEXPLAINED. ACCORDINGLY, AN ADDITION OF RS. 1,80,000 MADE BY THE AO ON THIS ACCOUNT IS CONFIRMED. 2.2 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT LOWER AUTHORITIES HAVE ERRED IN CONFIRMING THE ADDI TION OF RS. 1.80 LACS AS THE ASSESSEE HAD GOT THE AMOUNT OF RS. 1.80 LACS AS GIFTS FROM HIS FATHER SHRI KRISHAN DUTT SHARMA WHO WAS RETIRED ON 30-06-2 003 AS JOINT AGRICULTURE DIRECTOR (INFORMATION) FROM RAJASTHAN S TATE GOVT., JAIPUR. 2.3 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE AVAILABLE RECORDS THAT THE ASSESSEE HAD RECEIVED GIFT OF RS. 1,80,000/- ON 5-04-2009 F ROM HIS FATHER SHRI KRISHAN DUTT SHARMA FOR WHICH THE FATHER OF THE ASS ESSEE ALSO FILED AN AFFIDAVIT TO THIS EFFECT CONFIRMING THEREIN THE DET AILS OF THE AMOUNTS AS UNDER (PAGES 8 & 9 OF ASSESSEE'S PAPER BOOK) :- GIFT TO UMESH DUTT SHARMA OF RS. 1,80,000/- ON 5-04-2009. FOR GIVING THIS GIFT RS. 75,000/- WAS GI VEN OUT OF WITHDRAWAL OF RS. 4,45,000/- ON 14-11-2007 FROM SBB J A/C NO. 14575 LEDGER NO. 5106348346-2, RS. 90,000/- ON 10-07- ITA NO. 631/JP/2015 SHRI UMESH DUTT SHARMA VS. ITO, DAUSA . 4 2008 FROM SBBJ A/C NO. 14575 LEDGER NO. 5106348346- 2 AND BALANCE RS. 15,000/- WAS GIVEN OUT OF WITHDRAWA L OF RS. 80,000/- FROM THE BANK OF RAJASTHAN LTD. A/C NO. 35301001415323. I CONFIRM THAT I HAD GIVEN THIS AMOUNT OUT OF ABOVE WITHDRAWAL AND THESE RS. 1,80,000/- WAS KEPT BY ME AT MY HOUSE. THESE WITHDRAWAL WERE NEVER USED ANYWHERE AS I WAS KNOWING THAT MY SON SHRI UMESH DUTT SHARMA SHALL RE QUIRE THIS AMOUNT FOR HOSPITAL PURPOSE. IT IS ALSO NOTED FROM THE RECORDS THAT THE FATHER O F THE ASSESSEE WAS A RETIRED GOVT. OFFICER WHO GOT THE RETRIAL BENEFITS FROM THE STATE GOVT. AS UNDER (PAGE 35 & 36 OF ASSESSEE'S PAPER BOOK):- (I) GPF ON 17-04-2003 RS. 3,42,000/- (II) SI ON 16-06-2003 RS. 1,40,000/- (III) LEAVE ENCASHMENT ON 1-07-03 RS. 2,11,95 3/- (IV) GPF ON 14-07-2003 RS. 1,03,000/- (V) GPF ON 19-11-2003 RS. 1,67,019/- TOTAL RS. 9,63,972/- THE LD. AR OF THE ASSESSEE ALSO FILED PAN AFPPS221 1 F OF SHRI KRISHAN DUTT SHARMA I.E. THE FATHER OF THE ASSESSEE (PAGE 34 OF THE ASSESSEE'S PAPER BOOK). HENCE, FROM THE DETAILS AVAILABLE ON R ECORD THAT THE RELATIONSHIP BETWEEN THE DONOR AND DONEE I.E. FATH ER AND SON IS ESTABLISHED AND THUS THE FATHER HAS GIVEN THE GIFT OF RS. 1,80,000/- TO HIS SON BEING NATURAL LOVE AND AFFECTION WHICH IS THE MAIN INGREDIENT IN GIVING GENUINE GIFT. IT IS ALSO NOTED THAT THE ESSE NTIAL INGREDIENTS IN ORDER ITA NO. 631/JP/2015 SHRI UMESH DUTT SHARMA VS. ITO, DAUSA . 5 TO GIVE THE GIFT BY THE FATHER TO THE ASSESSEE I.E. IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS WHICH ARE PROVE D IN THE CASE OF THE ASSESSEE. IT IS ALSO NOTED THAT THE REVENUE HAS FAI LED TO ESTABLISH THAT SHRI KISHAN DUTT SHARMA HAS SPENT THE WITHDRAWAL OF RS. 4.45 LACS ELSEWHERE. HENCE, IN THIS VIEW OF THE MATTER, THE SOLITARY GRO UND RAISED BY THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 /01/2 017 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 /01/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI UMESH DUTT SHARMA, DAUSA 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD, DAUSA 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 631/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR