Avinash Khanna, Chandigarh V. ITO, Chandigarh

ITA 677/CHANDI/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8371 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 28-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift; Corroborative evidences
• 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

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 677/CHD/2015 ASSESSMENT YEAR : 2009-10 SHRI AVINASH KHANNA, VS THE ITO, # 6213, MALLOYA COMPLEX, WARD 5(4), CHANDIGARH. CHANDIGARH. PAN: AHKPK4275C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK AGGARWA L RESPONDENT BY : SHRI S.K.MITTAL DATE OF HEARING : 16.01.2017 DATE OF PRONOUNCEMENT : 19.01.2017 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-2 CHANDIGARH DATED 01.04.2015 FOR ASSESSMENT YEAR 2009-10 CHALLENGING THE ADDITION OF RS. 11 LACS UNDER SECTION 68 OF INCOME TAX ACT TREATING THE GIFT RECEIVED BY THE ASSESSEE FROM HIS BROTHER-IN-LAW AS NOT GENUINE. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE HAD CLAIMED TO HAVE RECEIVED GIFT OF RS. 11 LACS FROM H IS BROTHER-IN-LAW SHRI RAMESH KUMAR. THE ASSESSING 2 OFFICER ASKED THE ASSESSEE TO PROVE GENUINENESS OF THE GIFT ALONGWITH CAPACITY OF THE DONOR AND HIS IDENTI TY. THE ASSESSEE PRODUCED THE DONOR BEFORE ASSESSING OFFICER WHOSE STATEMENT WAS RECORDED. THE A.O. FIN ALLY HELD THAT THE DONOR DID NOT HAVE CAPACITY TO GIVE T HE GIFT AND TREATED THE ENTIRE AMOUNT OF RS. 11 LACS AS UNEXPLAINED AND ADDED IT UNDER SECTION 68 OF THE AC T. THE ASSESSEE FILED WRITTEN SUBMISSION BEFORE LD. CIT(APPEALS) WHICH WAS CONSIDERED BY THE LD. CIT(APPEALS). 3. THE LD. CIT(APPEALS) IN HIS FINDINGS REPRODUCED THE STATEMENT OF SHRI RAMESH KUMAR, DONOR WHICH WAS RECORDED BY THE ASSESSING OFFICER. IN HIS STATEMEN T HE HAS STATED THAT HE IS DOING AGRICULTURAL WORK WITH HIS FATHER SHRI MOHINDER SINGH IN VILLAGE NISSING, KARN AL, HARYANA. THE LAND IS APPROXIMATELY 21 KILAS WITH F OUR PARTNERS I.E. HIS FATHER AND THREE UNCLES. SHARE O F THE ASSESSEE AND HIS FATHER AS INCOME FROM AGRICULTURE WAS RS. 6 LACS IN A YEAR. THE ASSESSEE IS HIS BROTHER- IN-LAW AND SOURCE OF THIS AMOUNT IS RS. 5 LACS OUT OF HIS AGRICULTURE INCOME AND RS. 2 LACS FROM HIS UNCLE SH RI KULDIP FROM HIS PART OF AGRICULTURE INCOME AND RS. 4 LACS FROM HIS UNCLE SHRI MANGAL SINGH. SHRI MANGAL SINGH HIS UNCLE HAS OBTAINED THIS AMOUNT AFTER GIVI NG HIS SHARE OF LAND ON LEASE TO SHRI JOGINDER SINGH. COPY OF FORM-J AND LEASE DEED WAS STATED TO BE PRODUCED BEFORE ASSESSING OFFICER. THE GIFT WAS STATED TO B E 3 IRREVOCABLE. THE LD. CIT(APPEALS), THEREFORE, NOTE D THAT ASSESSEE EXPLAINED BEFORE HIM THAT ASSESSEE HAD STA RTED A NEW BUSINESS AND REQUIRED MONEY, THEREFORE, HE HA S CONTACTED SHRI RAMESH KUMAR, DONOR WHO IS HIS BROTHER-IN-LAW WHO HAS GIFTED THIS AMOUNT. ONE OF THE DOCUMENTS PRODUCED BY THE ASSESSEE FOR PROVING THE GIFT IS COPY OF THE BANK ACCOUNT OF SHRI MOHINDER SINGH, FATHER OF THE DONOR. THE ASSESSEE HAS EXPLAINED TH AT RS. 2,60,000/- WAS RECEIVED FROM COMMISSION AGENT O N 02.04.2008 WHICH WAS DEPOSITED IN HIS BANK ACCOUNT, BUT IT WAS SEEN THAT THIS IS AN PENSION ACCOUNT IN WHICH THERE WAS NO MAJOR DEPOSITS AND WITHDRAWALS EXCEPT DEPOSIT OF RS. 2,60,000/- ON 02.04.2008 AND RS. 2 L ACS ON 04.11.2008. FURTHER, THIS AMOUNT OF RS. 2,60,00 0/- WAS WITHDRAWN ON 02.04.2008 ITSELF WHEREAS THE GIFT HAS BEEN GIVEN ON 26.05.2008 AND SO WITHDRAWAL HAS NOT EXPLAINED EVEN PART OF THE GIFT. REST OF THE AMOUNT OF RS. 8,40,000/- WAS NOT EXPLAINED BY ASSESSEE. IT I S NOTED IN THE IMPUGNED ORDER AMOUNT IS EXPLAINED ON ACCOUNT OF LAND GIVEN ON LEASE ETC. WHICH WAS FOUND NOT SATISFACTORY. THE LD. CIT(APPEALS), THEREFORE, NOT ED THAT NONE OF THE AMOUNT GIVEN BY SHRI RAMESH KUMAR, DONO R TO THE ASSESSEE ACTUALLY BELONG TO THE DONOR. 4. THE LD. CIT(APPEALS), THEREFORE, NOTED THAT IT I S UNLIKELY THAT UNCLES OF SHRI RAMESH KUMAR, DONOR WO ULD GIVE MONEY TO HIM FOR FURTHER PAYING TO THE ASSESSE E THEREFORE, EXPLANATION OF THE ASSESSEE WAS TREATED AS 4 NON-GENUINE AND ADDITION WAS CONFIRMED ON ACCOUNT O F UNEXPLAINED GIFT. 5. AFTER CONSIDERING RIVAL SUBMISSIONS, WE DO NOT F IND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. THE AUTHORITIES BELOW HAVE CONFIRMED THE ADDITION ON ACCOUNT OF UNEXPLAINED GIFT RECEIVED BY ASSESSEE FR OM THE DONOR SHRI RAMESH KUMAR ON ACCOUNT OF THE FACT THAT ASSESSEE FAILED TO PROVE FINANCIAL CAPACITY/CR EDIT WORTHINESS OF THE DONOR TO GIVE GIFT AND ASSESSEE F AILED TO PROVE GENUINENESS OF THE GIFT IN THE MATTER. TH E LD. COUNSEL FOR THE ASSESSEE REFERRED TO AFFIDAVIT OF T HE DONOR SHRI RAMESH KUMAR IN WHICH HE HAS MERELY CONTENDED THAT ASSESSEE IS HIS BROTHER-IN-LAW AND H E HAS GIVEN GIFT OF RS. 11 LACS AND ALSO GIVEN HIS PA N NUMBER. THE LD. COUNSEL FOR THE ASSESSEE ADMITTED BEFORE US THAT THE DONOR SHRI RAMESH KUMAR HAS NOT BEEN MAINTAINING ANY BANK ACCOUNT AND THAT THE GIFT IS GIVEN IN TWO PARTS OF RS. 5 LACS AND RS. 6 LACS RESPECTIVELY IN CASH, THE SOURCE OF WHICH WAS NOT EXPLAINED AT ALL. THE LD. COUNSEL FOR THE ASSESSEE ALSO ADMITTED BEFORE US THAT DONOR SHRI RAMESH KUMAR HAS NOT BEEN FILING ANY RETURN OF INCOME AND HE FAILED TO EXPLAIN AS TO FOR WHAT PURPOSE, THE DONOR HAS OBTAI NED PAN NUMBER FROM INCOME TAX DEPARTMENT. THE LD. COUNSEL FOR THE ASSESSEE TRIED TO SUBMIT THAT RS. 2,60,000/- WAS DEPOSITED IN THE BANK ACCOUNT OF FAT HER OF THE DONOR WHICH IS AVAILABLE TO THE DONOR AND TH AT 5 CERTAIN AMOUNTS WERE RECEIVED FROM COMMISSION AGENT S WHICH IS AVAILABLE TO THE ASSESSEE, HOWEVER, THE FA CT REMAINED THAT THE DONOR SHRI RAMESH KUMAR DID NOT HAVE ANY AGRICULTURAL LAND IN HIS NAME. THE DONOR I S NOT MAINTAINING ANY BANK ACCOUNT AND HAS NOT BEEN FILIN G ANY RETURN OF INCOME. THE DONOR IN HIS STATEMENT RECORDED BY THE ASSESSING OFFICER EXPLAINED THAT HI S FAMILY IS HOLDING ABOUT 21 KILAS OF LAND IN WHICH T HERE ARE FOUR PARTNERS I.E. HIS FATHER AND THREE UNCLES AND TOTAL AGRICULTURE INCOME PER YEAR IS RS. 6 LACS. I T WOULD, THEREFORE SHOW THAT THE DONOR DID NOT HAVE A NY INDEPENDENT EARNING OF INCOME, WHAT TO SAY OF EARNI NG ANY AGRICULTURE INCOME. IN THE AFFIDAVIT OF THE DO NOR AND IN HIS STATEMENT, HE HAS NOT EXPLAINED SOURCE O F HIS INCOME AND HIS CAPACITY TO GIVE ANY GIFT TO THE ASS ESSEE. THE LD. CIT(APPEALS), THEREFORE, RIGHTLY NOTED THAT NONE OF THE AMOUNT GIVEN BY THE DONOR TO THE ASSESSEE BE LONG TO THE DONOR. DONOR APPEARS TO BE PAUPER. 5(I) THE PREPONDERANCE OF PROBABILITY AND SURROUNDI NG CIRCUMSTANCES OF THE CASE, THUS CLEARLY REVEALED TH AT THE DONOR SHRI RAMESH KUMAR IS NOT MAN OF MEANS AND HAS NO SOURCE OF INCOME. THE PASS-BOOK OF FATHER OF TH E DONOR IS FILED ON RECORD WHICH REVEALED THAT THERE WAS MEAGER BANK BALANCE IN HIS ACCOUNT, WHICH WOULD ALS O SHOW THAT EVEN HIS FATHER WAS NOT HAVING ANY SUFFIC IENT AGRICULTURE INCOME. THEREFORE, IT IS DIFFICULT TO BELIEVE 6 THAT RS. 11 LACS WAS AVAILABLE IN CASH WITH THE ASS ESSEE TO GIVE AS GIFT TO THE ASSESSEE. 5(II) IN THE CASE OF LAXMANDAS SUJANDAS DALPAT VS I TO REPORTED IN 381 ITR 283, HON'BLE GUJRAT HIGH COURT CONSIDERED THE FACT THAT THE RETURNS OF INDIAN DON ORS HAD BEEN PLACED ON RECORD WHICH CLEARLY REVEALED TH AT THE DONORS DID NOT HAVE FINANCIAL CAPACITY TO GIFT SUCH HUGE SUM OF MONEY, THEREFORE, ASSESSEE HAD FAILED T O PROVE CREDIT WORTHINESS OF THE DONORS. EVEN THE DON ORS WHO APPEARED BEFORE ASSESSING OFFICER DID NOT HAVE THE CAPACITY TO MAKE SUCH GIFT. IN RELATION TO THE GIF TS RECEIVED FROM THE NON-RESIDENT INDIAN DONORS, EXCEP T FOR THE FACT THAT SUCH AMOUNT WAS RECEIVED FROM BANKING CHANNEL AND THEIR CONFIRMATIONS WERE FILED, NO OTHE R SUPPORTING MATERIAL HAD BEEN PRODUCED BY THE ASSESS EE TO PROVE THE IDENTITY OF THE DONORS, GENUINENESS OF THE GIFTS AND CREDIT WORTHINESS OF THE PARTIES. HON'B LE HIGH COURT CONFIRMED THE ADDITION AND DISMISSED APPEAL O F THE ASSESSEE. IN THE CASE OF THE ASSESSEE, ASSESSE E EXCEPT FILING AFFIDAVIT OF THE DONOR, DID NOT PRODU CE ANY SUPPORTING EVIDENCE IN SUPPORT OF THE CAPACITY OF T HE DONOR TO GIVE GIFT AND TO PROVE GENUINENESS OF THE TRANSACTION IN THE MATTER. WHATEVER EVIDENCES WERE PRODUCED BEFORE THE AUTHORITIES BELOW WERE NOT SUFFICIENT TO DISCHARGE BURDEN UPON ASSESSEE TO PRO VE GENUINE GIFT IN THE MATTER. IN THE ABSENCE OF ANY COGENT AND RELIABLE EVIDENCE ON RECORD, WE ARE OF THE VIEW 7 ASSESSEE FAILED TO PROVE CREDIT WORTHINESS OF THE D ONOR AND GENUINENESS OF THE GIFT. NO INTERFERENCE IS CA LLED FOR IN THE MATTER. THE APPEAL OF THE ASSESSEE HAS NO MERIT. SAME IS DISMISSED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( ANNAPURNA GUPTA) (BHAVNESH SAINI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19 TH JANUARY, 2017. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD