Smt. Usha Rani, Panipat V. ITO, Panipat

ITA 642/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4250 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 01-04-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 20-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Assessee Lawyers: K L ANEJA
• Keywords: Gift
• Section: 131; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H DELHI) BEFORE SHRI A.D. JAIN AND SHRI A.K. GARODIA ITA NO. 642(DEL)2009 ASSESSMENT YEAR: 2000-01 SMT. USHA RANI, W/O GHANSHYAM DASS, INCOME TA X OFFICER, 53, OLD HOUSING BOARD COLONY, V. WAR D 3, PANIPAT. PANIPAT. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K.L. ANEJA, ADVOCATE RESPONDENT BY: SHRI N.K . CHAND, SR. DR ORDER PER A.D. JAIN, J.M. THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2 000-01 TAKING THE FOLLOWING GROUNDS:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN UPHOLDING AOS IN INITIATING PROCEEDINGS U/S 148 ON MERE CONJECTURES AND SURMISES AND WITHOUT HAVING SUFFICI ENT MATERIAL IN HOLDING THAT THE GIFT RECEIVED BY THE APPELLANT WAS MERE ACCOMMODATION ENTRY. 2. THAT THE LD. CIT(A) HAS BEEN WRONG IN HOLDING T HAT THE GENUINENESS OF THE GIFT RECEIVED WAS NOT ESTABLISHE D AND AS SUCH THE SAME CONSTITUTED INCOME IN THE HANDS OF THE APP ELLANT. 3. THAT THE LD. CIT(A) HAS WRONGLY CONFIRMED THE U NDERNOTED ADDITIONS MADE TOWARDS APPELLANTS INCOME: I TA 642(DEL)09 2 I) RS. 2,50,750/- TOWARDS GIFT RECEIVED BY THE APPELLA NT FROM DONORS ACCOUNT TO WHICH THE APPELLANT HAD NO AUTHORITY OR CONTROL OVER THE SAID ACCOUNT; II) RS. 25,075/- TOWARDS ALLEGED EXPENSES THAT MIGHT HAVE BEEN INCURRED IN THE TRANSACTION. 2. APROPOS GROUND NO.1, THE ASSESSEES CASE IS THAT THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE INITIATION OF PRO CEEDINGS U/S 148 OF THE INCOME TAX ACT BY THE AO ON MERE CONJECTURES AN D SURMISES, WITHOUT HAVING SUFFICIENT MATERIAL TO HOLD THAT THE GIFT RECEIVED BY THE ASSESSEE WAS A MERE ACCOMMODATION ENTRY. 3. IN THIS REGARD, THE LEARNED CIT(A) HAS HELD AS F OLLOWS: ON RECEIPT OF INFORMATION FROM DIT(INVESTIGATION)DELHI, THE AO RECORDED THE REASON S AND ISSUED NOTICE U/S 148. THE NOTICE HAS BEEN ISSUED AFTER RECORDING OF PROPER REASONS OF SATISFACTION AND PROPER APPROVAL, THEREFORE, THE NOTICE U/S 148 IS VALID AND PROPER, HENCE THE A CTION OF THE AO FOR ISSUING OF NOTICE U/S 148 IS UPHELD. 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT BEEN ABLE TO DISLODGE THE ABOVE FINDINGS RECORDED BY THE LD. CIT(A). THEREFORE, SINCE THE AO ISSUED NOTICE FOR REASSESSMENT ON RECE IPT OF INFORMATION FROM DIT(INV.)DELHI AND ON RECORDING THE REASONS FO R THE REOPENING AND ARRIVING AT A SATISFACTION FOR THE REOPENING AND PR OPER APPROVAL WAS ACCORDED FOR SUCH REOPENING BY THE AUTHORITIES, TH E INITIATION OF THE I TA 642(DEL)09 3 REOPENED PROCEEDINGS IS VALID, AS HELD BY THE LD. C IT(A). AS SUCH, FINDING NO FORCE THEREIN, GROUND NO.1 IS REJECTED. 5. APROPOS GROUND NOS. 2&3, THE AO MADE THE ADDITIO NS SINCE THE ASSESSEE HAD NOT BEEN ABLE TO PROVE ANY OF THE INGR EDIENTS OF SECTION 68 OF THE INCOME TAX ACT, I.E., THE IDENTITY AND CAPAC ITY OF THE DONOR AND THE GENUINENESS OF THE TRANSACTION. THE ASSESSEE HAD ONLY SUBMITTED THE NAMES AND ADDRESS , ETC., OF THE DONOR. HOWEV ER, NO EVIDENCE IN SUPPORT OF THE CLAIM OF THE IDENTITY OF THE DONOR, OR THE CAPACITY OF THE DONOR WAS FILED. SO FAR AS REGARDS THE GENUINENES S OF THE TRANSACTION, IT WAS FOUND THAT THE DONOR WAS NOT RELATED TO THE ASS ESSEE, NOR WAS THERE ANY OCCASION FOR THE GIFT. SOMUCH SO, THERE WAS N O DOCUMENTARY EVIDENCE TO PROVE THE CLAIM OF NATURAL LOVE, AFFECT ION AND FRIENDSHIP OF THE DONOR WITH THE ASSESSEE. THE ASSESSEE ALSO FA ILED TO PRODUCE THE DONOR BEFORE THE AO. IT WAS IN THESE FACTS THAT IT WAS CONCURRENTLY HELD THAT THE ASSESSEE HAD FAILED TO PROVE THE IDENTITY AND CAPACITY OF THE DONOR AND THE GENUINENESS OF THE GIFT. THE GIFT W AS HELD TO BE BOGUS AND A MERE ACCOMMODATION ENTRY. 6. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED, AS ALSO HAVING STATED SO AT PAGE 1 OF THE ASSESSEES P APER BOOK, I.E., THE BRIEF FACTS AS SUBMITTED BEFORE US, THAT THE ASSESS EE WAS NOT IN A POSITION I TA 642(DEL)09 4 AT THE RELEVANT TIME TO PRODUCE THE DONOR BEFORE TH E AO INSPITE OF EFFORTS MADE TO DO SO, SINCE THE DONOR WAS NOT WITH IN THE CONTROL OF THE ASSESSEE WHICH RESULTED IN ADVERSE VIEWS TAKEN BY T HE TAXING AUTHORITIES; THAT SO AS MADE THE ENDS OF JUSTICE AN D FAIR PLAY, THE MATTER BE REMITTED TO THE AOS FILE TO CALL THE DONOR U/S 131. 7. WE FIND THE REQUEST OF THE ASSESSEE, AS ABOVE, T O BE REASONABLE. THE NAME AND ADDRESS OF THE ASSESSEE WERE FURNISHED BY THE ASSESSEE BEFORE THE AO. THE AO, HOWEVER, DID NOT DEEM IT PR OPER TO SUMMON THE DONOR BY EXERCISING THE POWER U/S 131 OF THE I. T. ACT. WE ARE OF THE OPINION THAT THE ENDS OF JUSTICE WOULD BE MET IF TH E MATTER IS REMITTED TO THE FILE OF THE AO TO EXERCISE HIS POWERS U/S 131 O F THE I.T. ACT TO SUMMON THE DONOR AND TO ARRIVE AT A FINDING WITH RE GARD TO THE GIFT CLAIMED ON THE BASIS OF THE DEPOSITION OF THE DONOR , IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. THE ASSESSEE SHALL C O-OPERATE IN THE PROCEEDINGS BEFORE THE AO. THE SAME WILL APPLY EQ UALLY TO THE ALLEGED GIFT OF RS. 2,50,750/-, AS WELL AS TO THE AMOUNT OF RS. 25,075/- REPRESENTING ALLEGED EXPENSES THAT MIGHT HAVE BEEN INCURRED IN THE TRANSACTION. I TA 642(DEL)09 5 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS PARTLY ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 01.04.2010. SD/- SD/- (A.K. GARODIA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 01.04.2010 *RM COPY FORWARDED TO: 1. SMT. USHA RANI, W/O GHANSHYAM DASS, 53, OLD HOUSING BOARD COLONY, PANIPAT. 2. ITO, WARD 3, PANIPAT. 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DY. REGISTRAR