ACIT 2(3), MUMBAI V. INDER SATPAL AURORA, MUMBAI

ITA 6646/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101145 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Department
• Bench Allotted: I
• Next Hearing Date: 20-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 13-11-2013
• Court: TRIBUNAL
• Assessee Lawyers: VIJAY KOTHARI
• Keywords: Gift; Additional evidence
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL I , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & SHRI PAWAN SINGH , J M ./ ITA NO . 6646 / MUM/20 1 3 ( / ASSESSMENT YEAR : 20 03 - 20 04 ) ACIT - 2(3), MUMBAI VS. INDER SATPAL AURORA, FLAT NO.41, MUKTANGAN, SOROJINI NAIDU ROAD, SANTACRUZ (W), MUMBAI - 400054 ./ ./ PAN/GIR NO. : A A DPA 1516 G ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI VIJAY KOTHARI /REVENUE BY : SHRI MANOJ MISHRA / DATE OF HEARING : 20 /0 8 / 2015 / DATE OF PRONOUNCEMENT 23/09/ 2015 / O R D E R PER R.C.SHARMA (A.M) : TH IS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), DATED 13 - 1 - 2012 FOR THE ASSESSMENT YEAR 2003 - 04 IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) R.W.S254 OF THE ACT. 2. IN THIS APPEAL THE REVENUE IS AGGRIEVED BY THE ACTION OF THE CIT(A) DELETING THE ADDITION OF RS. 21 LAKHS MADE ON ACCOUNT OF GIFT RECEIVED BY ASSESSEE MR. NITIN P. DHULIA . 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. IN THIS CASE, THE ORIGINAL ASSESSMENT ORDER WAS FRAMED ON 30 - 3 - 2006 WHEREIN ADDITION WAS MADE ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE FROM MR. ITA NO. 6646/13 2 NITIN P. DHULIA. IN AN APPEAL BEFORE THE CIT(A), THE CIT(A) HAS DELETED THE ADDITION AFTER CONSIDERING VARIOUS DOCUMENTS FILED BEFORE HIM. AGAINST THE ORDER OF CIT (A), THE REVENUE APPROACHED THE TRIBUNAL, WHEREIN THE TRIBUNAL BY OBSERVING THAT THE CIT(A) HAS NOT CALLED FOR ANY REMAND REPORT FROM THE AO WITH REGARD TO ADDITIONAL EVIDENCE, RESTORED THE MATTER BACK TO THE FILE OF AO FOR DECIDING AFRESH AFTER CONSIDERIN G THE ADDITIONAL EVIDENCE SO ADMITTED BY THE CIT(A). IN THE SET ASIDE PROCEEDINGS, THE AO AGAIN MADE THE SAME ADDITION. BY THE IMPUGNED ORDER THE CIT(A) DELETED THE ADDITION AFTER OBSERVING AS UNDER : - 6. I HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE APPE LLANT AS WELL AS THE FACTS OF THE CASE. IT IS SEEN THAT THE APPELLANT HAD RECEIVED AN AMOUNT OF RS. 21 LAKHS FROM ONE MR NITIN P. DHULIA, AS GIFT. THIS AMOUNT WAS EARLIER DISALLOWED BY THE AO DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS AND WAS ADD ED TO THE TOTAL INCOME OF THE APPELLANT. WHEN THE APPELLANT WENT IN APPEAL, THE LD. CIT(A). ON THE BASIS OF SOME FURTHER EVIDENCES FURNISHED BY THE APPELLANT, ALLOWED THE APPEAL OF THE APPELLANT AND DELETED THE ADDITION MADE BY THE AO. THE REVENUE WENT IN APPEAL BEFORE THE ITAT, WHEREBY HON'BLE ITAT RESTORED THE MATTER BACK TO THE FILE OF THE AO IN VIEW OF THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962 AND DIRECTED THE AO AS UNDER: 'THE CIT(APPEALS), CONSIDERING THE CRUCIAL ADDITIONAL EVIDENCE S UBMITTED BY THE ASSESSEE, DELETED THE ADDITION WITHOUT OBTAINING REMAND REPORT FROM THE A O . IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE AO SHOULD BE GIVEN AN OPPORTUNITY TO EXAMINE THE ADDITIONAL EVIDENCE. THEREFOR E, WE SET ASIDE THE ORDER OF THE CIT(APPEALS) ON THIS ISSUE AND RESTORE THE MATTE R TO THE FILE OF AO FOR FRESH CO NSIDERATION. THE A . O . IS DIRECTED TO CONSIDER THE ADDITIONAL EVIDENCE AND PASS ORDERS IN ACCORDANCE WITH LAW AFTER GIVING AN OPPORTUNITY OF HE ARING TO THE APPELLANT. 7. THUS THE SOLE INTENTION OF THE HON'BLE ITAT IN SETTING AS I DE THE MATTER BACK TO THE F IL E OF 'HE AO WAS THAT THE AO SHOULD CONSIDER THE ADDITIONAL EVIDENCE FURNISHED BY THE APPELLANT WHICH WAS ALREADY CONSIDERED BY LD. CIT(A), W HILE GRANTING RELIEF TO THE APPELLANT] AND DECIDE THE MATTER AFRESH. THE AO'S REJECTION OF THE SAME SET OF DOCUMENTS, WHICH H AVE BEEN ACCEPTED BY LD, CIT(A) IS MAINLY ON ACCOUNT OF FOLLOWING REASONS; ITA NO. 6646/13 3 1) THE DOCUMENTS SUBMITTED DO NOT ESTABLISH THE CREDI TWORTHINESS OF THE DONOR AS WELL AS THE NATURAL LOVE AND AFFECTION, THE DONOR HAD TOWARDS THE APPELLANT. 2) THE AFFIDAVIT OF THE DONOR IS A SELF - SERVING STATEMENT WITHOUT SUPPORT OF ANY DOCUMENTARY EVIDENCE. 3) THE APPELLANT DID NOT PRODUCE THE DONOR S O THAT THE CORRECTNESS AND GENUINENESS OF THE AFFIDAVIT CAN BE EXAMINED. 4) THE SIGNATURE OF THE DONOR ON THE DECLARATION DIFFERS FROM HIS SIGNATURE ON THE AFFIDAVIT. 5) THE COPY OF THE FIRST PAGE OF THE PASSPORT DOES NOT PROVE THE REAL IDENTITY OF THE DONOR, IN THE ABSENCE OF THE ORIGINAL PASSPORT. 8. IT IS SEEN THAT ON THE BASIS OF THE VERY SAME SET OF DOCUMENTS, THE OBSERVATIONS OF THE THEN LD. CIT ( A) WERE AS UNDER: '7. I HAVE GONE THROUGH THE ABOVE SUBMISSIONS CAREFULLY AND PERUSED THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE MATERIAL ON RECORD. I FIND THAT THE APPELLANT HAD RECE IVED AN AMOUNT OF RS. 21,00,000/ - AS GIFT DURING THE YEAR UNDER CONSIDERATION FROM SHRI NITIN P. DHULIA. THE ASSESSING OFFICER HAD ASKED CERTAIN DETAILS/ DOCUMENTS IN SUPPORT OF THE GIFT VIDE LETTER DATED 16.3 2006. THE APPELLANT FILED DETAILS PARTLY CONTAINING COPY OF GIFT DECLARATION , LETTER OF CONFIRMATION AND COPY OF THE BANK PASSBOOK HAVING C REDIT OF GIFT AMOUNT VIDE LETTER DATED 23.3.2006. FOR THE REMAINING DET AILS , THE APPELLANT ASKED FOR SOME TIME AND SUBMITTED THAT HE IS IN PROCESS OF COLLECTING EVIDENCES AND SHALL SUBMIT SHORTLY. HOWEVER, THE ASSESSMENT WAS COMPLETED ON 30.3.2006. THE ASSESSING, OFFICER HAS OBSERVED THAT THE GIFT DECLARATION IS ON PLAIN PAP ER SIGNED BY DONOR ONLY, EVEN WITHOUT GIVING AN ADDRESS. WITH REGARD TO THE PERSONAL LETTER WRITTEN BY DONOR TO DONEE THE ASSESSING OFFICER OBSERVED THAT IT IS FABRICATED AS THE SIGNATURE OF THE DONOR ON THE GIFT DECLARATION AND ON THE LETTER DATED 24.9.1 997 DIFFER TOTALLY. THUS, THE ASSESSING OFFICER CONCLUDED THAT THE DOCUMENTS SUBMITTED BY THE APPELLANT ARE NOT ACCEPTABLE. FURTHER DETAILS/ DOCUMENTS ASKED HAVE NOT BEEN SUBMITTED. IN VIEW OF THIS, THE ALLEGED GIFT AMOUNT WAS ADDED TO THE TOTAL INCOME O F THE APPELLANT. 7.1 DURING THE APPELLATE PROCEEDINGS) THE APPELLANT SUBMITTED THAT HE HAD RECEIVED A GIFT OF RS. 21 , 00, 000 / - FROM SHRI NITIN P. DHULIA, A FAMILY FRIEND WITH WHOM HE HAS RELATIONSHIP FOR YEARS. IN SUPPORT OF THE ABOVE, THE APPELLANT SU BMITTED FO LLOWING DETAILS UNDER RULE 46(1 ) (C) AND 46(1)(4 ) OF THE INCOME - TAX ACT, 1961. THE SAME ARE ACCEPTED IN VIEW OF THE FACT THAT THE TIME GIVEN BY THE ASSESS ING OFFICER WHILE FINALISING THE ASSESSMENT WAS NOT SUFFICIENT AS HE ASKED THE DETAILS ON 16.3 .2006 AND COMPLETED THE ASSESSMENT ON 23.3.2006. MOREOVER, THE DONOR RESIDES IN SINGAPORE. IT WAS DIFFICULT TO COLLECT THE ENTIRE INFORMATION IN SHORT TIME. IN VIEW OF THE FACTS, ITA NO. 6646/13 4 THE DETAILS SUBMITTED DURING THE APPELLATE STAGE IS ACCEPTED AS PER THE PROV ISIONS OF THE ACT. 7.2 THE APPELLANT SUBMI TTED A CERTIFICATE ISSUED BY MI S MAHAVIR TRADING COMPANY PTE LTD., SINGAPORE CARRYING ON BUSINESS FOR THE LAST 22 YEARS, WHEREIN MR. NITIN P. DHULIA IS A DIRECTOR. THIS COMPANY AT THE INSTANCE OF ITS DIRECTOR MR. DHULIA, DONOR, HAS ISS UED A DD OF RS. 21, 00 , 000 0/ - I N FAVOUR OF LNDER SATPAL ARORA, A GIFT. DD NO. 01212310001 DATED 13.12.2002 DRAWN ON SINGAPORE. THE CERTIFICATE ISSUED BY THE MAHAVIR TRADING COMPANY PTE LTD CERTIFIED THE FACTS STATED HEREINABOVE AND WHICH IS DULY NOTARISED BY NOTARY PUBLIC SINGAPORE. 7.3 FRESH DECLARATION OF GIFT BY SHRI NITIN P. DHULIA CONFIRMING HAVING GIVEN A GIFT TO THE APPELLANT, WHEREIN HE HAS ALSO CONFIRMED ABOUT EARLIER GIFT DECLARATION ON 3/01/03. THIS IS ALSO DULY ATTE STED BY NOTARY PUBLIC, SINGAPORE. 7.4 WITH REGARD TO THE OBSERVATION OF THE ASSESSING OFFICER THAT THERE WAS A DIFFERENCE IN THE SIGNATURE OF SHRI NITIN P. DHULIA MADE ON GIFT DECLARATION AS WELL AS ON A LETTER DATED 24.9.1997, THE DONOR EXPLAINED THAT O N THE LETTER IN QUESTION HE SIGNED AS USUALLY AS PERSONAL LETTERS OR CORRESPONDENCES BUT ON GIFT DECLARATION HE SIGNED AS HE SIGNS ON LEGAL DOCUMENT. BOTH THE SIGNATURES ARE HIS SIGNATURES AND THERE SHOULD NOT BE ANY DOUBT IN THIS REGARD. THEREFORE, IN THE DIFFERENCE OF SIGNATURE ON TWO PAPERS CANNOT BE PROPER GROUND FOR DENIAL OF GIFT AMOUNT. 7. 5 IN SUPPORT OF THE CAPACITY OF THE DONOR, THE APPELLANT SUBMITTED A COPY OF STATEMENT OF ACCOUNT WHICH PROVES THE CAPACITY OF THE DONOR, AS THE DONOR IS HAVING SUFFICIENT FUNDS. 7. 6 THUS, DURING THE APPELLATE PROCEEDINGS, THE APPELLANT HAS BEEN ABLE TO PRODUCE PLAUSIBLE AND ACCEPTABLE EVIDENCES TO SHOW THE IDENTITY OF THE DONOR AS W ELL AS THE SOURCE OF THE GIFT. THE DONOR HAS PASSED ON THE AMOUNT THROUGH BANK DD IN FAVOUR OF THE DONEE. THE GIFT DECLARATION IS ALSO NOTARISED BY NOTARIJ SINQAPORE. 7. 7 LR.DER THE CIRCUMSTANCES, THE DONATED AMOUNT COULD NOT BE - HE L D TO REPRESENT THE APPELLANT'S INCOME IN THE ABSENCE OF ANY MATERIAL TO INDICATE THAT THE GIFT AMOU NT BELONGED TO THE APPELLANT THEREFORE. THE GIFT AMOUNT COULD NOT BE ADDED AS THE INCOME OF [HE APPELLANT. THIS VIEW ALSO GET SUPPORT FROM THE DECISION OF THE HON'BLE ITAT, MUMBAI BENCH IN THE CASE OF AT MARAM J. MANGHIRAMLANI (H UF ) VS. IX ITO {1998 ) 67 IT D 289. 7. 8 FURTHER IT MAY BE MENTIONED THAT THE DONOR HAS SHOWN HIS LOVE AND GRATITUDE FOR THE APPELLANT, HE WANTED TO RECIPROCATE BY MAKING THE GIFT, HE HAD CHANNELISED TRANSACTION THROUGH BANKING CHANNEL AND HE HAS ALSO PROVED HIS CAPACITY, THESE FACT S ALSO CONFIRMED BY HIM TWICE IN GIFT DECLARATIONS. IN VIEW OF THE FACT, THE ASSESSING OFFICER HAS NO CASE TO DOUBT ITA NO. 6646/13 5 ABOUT THE GIFT AMOUNT. THIS VIEW GETS SUPPORT FROM THE CASE A. RAJENDRA VS. ACIT (2006) 155 TAXMAN 364 (204 CTR 9 (MAD.)).)) 9. FROM THE ABOVE, IT IS EVIDENT THAT LD. CIT(A) HAD ALREADY ADDRESSED THE ISSUES WHICH HAVE NOW BEEN RAISED AGAIN BY THE AO, DURING THE EARLIER APPELLATE PROCEEDINGS BEFORE HIM, THE CREDITWORTHINESS OF THE DONOR, THE ANGLE OF LOVE AND AFFECTION, THE ISSUE OF TWO DIFF ERENT SIGNATURES OF THE DONOR, THE GENUINENESS OF THE AFFIDAVIT AS WELL AS THE QUESTION OF PHOTO COPIES OF THE DOCUMENTS FURNISHED BEFORE THE AO HAVE ALREADY BEEN ADDRESSED. IT IS ALSO LOGICAL THAT THE DONOR, BEING A RESIDENT OF SINGAPORE, COULD NOT HAVE P ERSONALLY APPEARED BEFORE THE AO TO CONFIRM THE TRANSACTION. HOWEVER, IT IS SEEN THAT THE DONOR HAS DONE EVERYTHING WHICH HE COULD, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TO ESTABLISH THE GENUINENESS OF THE TRANSACTION WITH THE APPELLANT. THE LD. CIT( A) HAD ALSO RELIED UPON THE CASE LAWS, BEFORE HOLDING THAT THE TRANSACTION WAS GENUINE IN THESE CIRCUMSTANCES, IN MY OPI N ION, THEREFORE THERE WAS NO CASE 'WITH THE AO TO HAVE REJECTED THE GENUINENESS OF THE TRANSACTION, ESPECIALLY IN VIEW OF THE FAC T THAT ON T HE BASIS OF SAME SET OF DOCUMEN T S AND EVIDENCES. A HIGHER APPELLATE AUTHORIT Y HAD HELD THE TRANSACTION TO BE GENUINE 10. T HEREFORE, RESPECTFULLY FOLLOWING THE DECISION O F MY LD PREDECESSOR. I HOLD THE AMOUNT OF GIFT OF RS.21,00,000/ - TO BE GENUINE, TH E AO IS DIRECTED TO DELETE THE ADDITION MADE IN THIS REGARD. 11. IN THE RESULT, THE APPEAL OF THE APPELLANT IS ALLOWED. 4. AGAINST THE ABOVE ORDER OF CIT(A) THE REVENUE IS IN FURTHER APPEAL BEFORE US. 5. W E HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM THE RECORD THAT DURING THE YEAR UNDER CONSIDERATION ASSESSEE RECEIVED GIFT OF RS.21 LAKHS FROM MR. NITIN P. DHULIA, A FAMILY FRIEND WITH WHOM HE HAS RELATIONSHIP FOR YEARS. TO SUBSTANTIATE THE S OURCE OF GIFT THE ASSESSEE HAS FILED CERTIFICATE ISSUED BY M/S MAHAVIR TRADING COMPANY PTE LTD. SINGAPORE CARRYING ON BUSINESS FOR THE LAST 22 YEARS, WHEREIN MR. NITIN P. DHULIA IS A DIRECTOR. THE GIFT WAS RECEIVED BY THE ASSESSEE THROUGH A DD NO.012123100 01 DATED 13 - 12 - 2002 DRAWN ON BANK OF INDIA , SINGAPORE. THERE WAS A DECLARATION GIVEN ITA NO. 6646/13 6 BY MR. NITIN P. DHULIA CONFIRMED HAVING GIVEN A GIFT TO THE ASSESSEE WAS ALSO FILED BEFORE AO. THUS, WE FOUND THAT ASSESSEE HAS DULY ESTABLISHED NOT ON LY IDENTITY OF THE D ONOR BUT ALSO GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF NITIN P. DHULIA. THE CIT(A) HAS ALSO RECORDED A CATEGORICAL FINDING TO THE EFFECT THAT CREDITWORTHINESS OF THE DONOR , THE ANGLE OF LOVE AND AFFECTION, THE GENUINENESS OF THE AFFIDAVIT AS WELL AS THE CONFIRMATION HAVE DULLY BEEN ESTABLISHED. THE FINDINGS RECORDED BY THE CIT(A) ARE AS PER MATERIAL ON RECORD. ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE IN THE FINDINGS RECORDED BY CIT(A) TO THE EFFECT THAT GIFT SO GIVEN WAS GENUINE AND CREDITWORTHINESS OF THE DONOR WAS DULY ESTABLISHED. 6 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 23/09 / 201 5 . SD/ - SD/ - ( ) ( PAWAN SINGH ) ( . . ) ( R.C .SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 23/09 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLA NT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//