SMT. MUNNI AGARWAL, Jaipur V. DCIT, Jaipur

ITA 691/JPR/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4921 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N S JANG
• Keywords: Gift
• Section: 142(1); 132; 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR BEFORE SHRI B.R. JAIN, ACCOUNTANT MEMBER ITA NO. 691/JP/2013 ASSESSMENT YEAR: 2009-10 PAN NO. ABSPA0793R SMT. MUNNI AGARWAL, VS. DY. COMMISSIONER OF INCOME TAX 129-E, GOVIND NAGAR, CENTRAL CIRCLE-3, DUSHERRA KOTHI, JAIPUR. JAIPUR (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI N.S. JANGPANGI. DATE OF HEARING : 03.10.2013 DATE OF PRONOUNCEMENT : 04.10.2013 ORDER PER B.R. JAIN, A.M. THIS APPEAL BY ASSESSEE AGAINST THE ORDER DATED 19 TH JULY, 2013 OF LD. CIT (APPEALS), CENTRAL, JAIPUR BY RAISING THE FOLLOWING GROUNDS :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 80,000/- U/ S 68 OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF GIFT RECEIVED BY THE AS SESSEE. 2. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD, AMEN D OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. THE ASSESSEES APPLICATION FOR ADJOURNMENT IN TH IS APPEAL LISTED FOR HEARING ON 11/9/2013 HAS BEEN OPPOSED BY THE REVENUE AS THE SAME WAS NEITHER MADE BY THE APPELLANT NOR BY ANY AUTHORIZED REPRESENTATIVE. THE REASONS STATED FOR 2 ADJOURNMENT WERE FOUND VAGUE AND CONTRADICTORY. SUC H REQUEST, THEREFORE, WAS NOT TAKEN AS BONAFIDE AND STOOD REJECTED. HOWEVER, IN O RDER TO RENDER SUBSTANTIAL JUSTICE, THE APPEAL WAS ADJOURNED FOR HEARING ON 01 /10/2013. THE MATTER WAS AGAIN ADJOURNED FOR HEARING ON 03/10/2013 WHEN NO APPEARA NCE HAS BEEN MADE BY THE ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT HAS BE EN RECEIVED FROM HER. ON THIS DAY, THE LD. D.R. SHRI N.S. JANGPANGI PRODUCED ASSE SSMENT RECORD AND ALSO LAID ON RECORD COPIES OF ASSESSEES SUBMISSION IN ASSESSMEN T PROCEEDINGS BEFORE THE ASSESSING OFFICER. UNDER THE CIRCUMSTANCES, IT WAS DECIDED TO HEAR LD. D.R. EX PARTE QUA THE ASSESSEE WITH REFERENCE TO MATERIAL O N RECORD. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE APPEL LANT DID NOT FILE ANY RETURN OF INCOME FOR THE IMPUGNED YEAR I.E. ASSESSMENT YEAR 2 009-10 DESPITE ISSUANCE OF NOTICES DATED 11/11/2009 U/S 153-A READ WITH SECTIO N 142(1) OF THE I.T. ACT. THEREAFTER, THE ASSESSING OFFICER ISSUED A SHOW CAU SE NOTICE FOR INITIATING THE PROSECUTION PROCEEDINGS U/S 276CC OF THE ACT ON 15/ 1/2010 AND REQUIRED THE ASSESSEE TO MAKE COMPLIANCE BY 05/2/2010. THE ASSES SEE, HOWEVER, FILED AN APPLICATION REQUIRING MORE TIME TO FILE THE RETURN OF INCOME AND ULTIMATELY FILED THE RETURN ON 19/2/2010 DECLARING AN INCOME OF RS. 1,61,890/-. THE A.O. TOOK UP THE ASSESSMENT PROCEEDINGS PURSUANT TO NOTICE U/S 1 53A READ WITH SECTION 142(1) OF THE ACT, CONSEQUENT TO AN ACTION U/S 132 OF THE ACT CARRIED ON AGRAWAL (CARPET) GROUP ON 27/8/2008. DURING THE ASSESSMENT PROCEEDIN GS, THE ASSESSEE PRODUCED BOOKS OF ACCOUNT WHICH REVEALED CREDIT OF RS. 80,00 0/- IN THE CAPITAL ACCOUNT OF THE ASSESSEE CLAIMED AS GIFT RECEIVED FROM SMT. BAR PA DEVI, HER MOTHER. THE 3 ASSESSING OFFICER, THEREAFTER, REQUIRED THE ASSESSE E TO FURNISH THE EVIDENCE IN SUPPORT OF THE CLAIM OF A VALID GIFT. THE ASSESSEE, HOWEVER, VIDE LETTER DATED 30/11/2010 INFORMED THAT SMT. BARPA DEVI HAS EXPIRE D, HOWEVER, SHE HAS MADE A GIFT TO THE ASSESSEE BY HER ACCOUNT PAYEE CHEQUE. T HE ASSESSEE IN HIS LETTER ALSO STATED THAT, IT IS NOT POSSIBLE FOR HER TO FURNISH ANY CONFIRMATION OR ANY DEED OF GIFT. HOWEVER, IN REFERENCE TO FINANCIAL POSITION, IT WAS SUBMITTED THAT SHE WAS BELONGING TO A VERY RESPECTABLE FAMILY AND THE DONO R IS AN INCOME TAX PAYEE. HE, THEREFORE, REQUESTED THE ASSESSING OFFICER TO TREAT THE GIFT AS VOLUNTARY AND GENUINE. FOR LACK OF EVIDENCE, THE ASSESSING OFFICE R DID NOT BELIEVE THE APPELLANT. THE AMOUNTS WERE FOUND TO HAVE BEEN RECEIVED BY TWO DEMAND DRAFTS OF RS. 40,000/- EACH MADE ON 18/6/2008. THE IDENTITY AND C APACITY OF THE DONOR WAS NOT ESTABLISHED. GENUINENESS OF THE GIFT WAS ALSO NOT P ROVED. HE, THEREFORE, PROCEEDED TO TREAT THE CREDIT OF RS. 80,000/- AS HER INCOME U /S 68 OF THE ACT. ACCORDINGLY, THE ASSESSMENT STOOD COMPLETED AT AN INCOME OF RS. 2,41 ,890/-. 4. THE LD. CIT(A) TOOK INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE. FROM THE SUBMISSIONS MADE BY THE APPELLANT IN APPEAL BEFORE HER, IT WAS FOUND THAT THE CREDIT OF RS. 80,000/- APPEARING IN HER CAPITAL ACCOUNT WAS ON ACCOUNT OF A DRAFT OF RS. 40,000/- BEARING NO. 3863 1 DATED 18/6/2008 ISSUED BY INDIAN OVERSEAS BANK, HISAR BRANCH, WHILE THE SECON D DRAFT OF RS. 40,000/- ISSUED BY THE INDIAN OVERSEAS BANK ON 18/6/2008 I.E. ON TH E SAME DAY WAS FROM JAIPUR BRANCH. THE ASSESSEE DID NOT EXPLAIN AS TO HOW ON T HE SAME DAY, THE ASSESSEE COULD TRAVEL FROM HISAR TO JAIPUR OR VICE VERSA TO MAKE DRAFTS OF RS. 40,000/- EACH 4 WHEN THE LOCATION OF THESE TWO STATIONS IS GEOGRAPH ICALLY AT A DISTANT PLACE, IN PARTICULAR, WHEN THE ALLEGED DONOR IS AN AGED LADY. THE APPELLANT WAS FOUND TO HAVE FAILED TO PROVE THE FINANCIAL CAPACITY OF THE DONOR AS NO RELEVANT EVIDENCE WAS FILED NOR HER FINANCIAL CAPACITY PROVED BY FURN ISHING COPY OF BANK STATEMENT OR I.T. RETURNS. THE CASE LAWS RELIED BY THE ASSESS EE IN APPEAL BEFORE HER, WERE FOUND FULLY DISTINGUISHABLE AND WERE OF NO ASSISTAN CE TO THE APPELLANTS CASE. THE APPELLANT ALSO DID NOT BRING GIFT DEED OR ANY CONFI RMATION ON RECORD TO PROVE HER CLAIM NOR ANY DOCUMENTARY EVIDENCE WAS LAID TO SUBS TANTIATE THAT THE GIFT IS GENUINE. SHE, THEREFORE, UPHELD THE FINDINGS OF THE ASSESSING OFFICER AND CONFIRMED THE ADDITION OF RS. 80,000/-. 5. HAVING HEARD LD. D.R. WITH REFERENCE TO MATERIAL ON RECORD, I FIND THAT, DESPITE OPPORTUNITIES BEFORE LOWER AUTHORITIES AND EVEN BEFORE THIS TRIBUNAL, THE APPELLANT HAD FAILED TO LAY ON RECORD ANY RELIABLE AND DOCUMENTARY EVIDENCE TO SUBSTANTIATE THAT THE CREDIT OF RS. 80,000/- APPEAR ING IN HER BOOKS OF ACCOUNT REPRESENTED RECEIPT FROM HER MOTHER SMT. BARPA DEVI AS A GIFT FROM HER. NEITHER ANY DECLARATION OF GIFT NOR CONFIRMATION FROM SMT. BARPA DEVI OR HER LEGAL HEIRS HAS BEEN LAID ON RECORD. EVEN THE BANK STATEMENTS O F THE BRANCHES OF INDIAN OVERSEAS BANK AT JAIPUR AND HISAR WERE NOT BROUGHT ON RECORD TO SUBSTANTIATE THAT THE AMOUNT THEREOF HAS COME FROM THE BANK ACCOUNT O F SMT. BARPA DEVI. HER ASSESSMENT PARTICULARS WERE ALSO NOT FURNISHED TO E ITHER OF THE AUTHORITIES BELOW. NEITHER HER DATE OF DEATH NOR ANY DEATH CERTIFICATE HAS BEEN LAID ON RECORD TO SHOW AS TO WHETHER SHE MADE ANY GIFT TO THE APPELLANT DU RING HER LIFE TIME OR OTHERWISE IT 5 IS MERELY A RUSE. THE STAND TAKEN THAT THE PAYMENTS OF RS. 40,000/- EACH WERE FROM HER ACCOUNT PAYEE CHEQUES HAS ALSO NOT BEEN PROVED. CONTRADICTORY STAND IN THAT REGARD IS FOUND TO HAVE BEEN TAKEN. THE EXPLANATION OFFERED BY THE ASSESSEE WITH RESPECT TO THE NATURE AND SOURCE HAS NOT BEEN FOUND SATISFACTORY AND THE BURDEN THAT LAY UPON HER IN THAT REGARD HAS NOT BEEN DISCH ARGED. THE LD. CIT(A) JUSTIFIABLY TOOK INTO ACCOUNT THE CIRCUMSTANCES AND THE FACT THAT THERE IS LACK OF MATERIAL ON RECORD AND TOOK THAT THE GIFT CANNOT BE TAKEN AS A GENUINE AND ALSO THE FINANCIAL CAPACITY OF SMT. BARPA DEVI HAS NOT BEEN PROVED. THE MAKING OF DRAFT OF RS. 40,000/- FROM THE BRANCHES OF INDIAN OVERSEAS B ANK ON THE SAME DATE I.E. ON 18/6/2008 FROM JAIPUR BRANCH AND SECOND DRAFT OF RS . 40,000/- FROM HISAR BRANCH GEOGRAPHICALLY LOCATED AT A DISTANT PLACE WAS A DEF INITE CIRCUMSTANCE, WHICH REQUIRED EXPLANATION AND RAISED SUSPICION. THE ASSE SSEE, HOWEVER, DID NOT TENDER ANY EXPLANATION IN THAT REGARD TOO. THE HON'BLE APE X COURT IN THE CASE OF SUMATI DAYAL VS. CIT (1995) 214 ITR 801 (SC; (1995) SUPP 2 (SC) 453 HAS HELD AS UNDER:- IN ALL CASES IN WHICH A RECEIPT IS SOUGHT TO BE TAX ED AS INCOME, THE BURDEN LIES ON THE DEPARTMENT TO PROVE THAT IT IS WITHIN T HE TAXING PROVISION AND IF A RECEIPT IS IN THE NATURE OF INCOME, THE BURDEN OF PROVING THAT IT IS NOT TAXABLE BECAUSE IT FALLS WITHIN EXEMPTION PROVIDED BY THE ACT LIES UPON THE ASSESSEE. BUT, IN VIEW OF SECTION 68 OF THE ACT, WH ERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE FOR ANY PREVI OUS YEAR THE SAME MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR IF THE EXPLANATION OFFERED BY THE ASSESSEE ABOUT THE N ATURE AND SOURCE THEREOF IS, IN THE OPINION OF THE ASSESSING OFFICER, NOT SA TISFACTORY. IN SUCH A CASE THERE IS, PRIMA FACIE, EVIDENCE AGAINST THE ASSESSE E, VIZ., THE RECEIPT OF MONEY AND IF HE FAILS TO REBUT, THE SAID EVIDENCE B EING UNREBUTTED, CAN BE USED AGAINST HIM BY HOLDING THAT IT WAS A RECEIPT O F AN INCOME NATURE. 6 6. SINCE THE AUTHORITIES BELOW HAVE CONCURRENTLY FO UND THE EXPLANATION OFFERED BY THE ASSESSEE UNACCEPTABLE AND THE SAME BEING NEI THER SATISFACTORY NOR SUBSTANTIATED BY ANY RELIABLE MATERIAL OR EVIDENCE ON RECORD, THE APPELLANT IS FOUND TO HAVE FAILED TO DISCHARGE THE BURDEN THAT LAY UPO N HIM TO PROVE THE NATURE AND SOURCE OF CREDIT APPEARING IN HER BOOKS OF ACCOUNT. THE ESSENTIALS OF VALID GIFT ARE ALSO NOT SATISFIED AS THE GIFT IS MERELY A RUSE AND ON APPRECIATION OF FACTS, THE SAME HAS NOT RIGHTLY BEEN ACCEPTED AS GENUINE GIFT. ON T HE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE. I UPHOLD THE FINDINGS AN D THERE BEING NO MERIT IN THE GROUND RAISED IN APPEAL BY THE ASSESSEE, THE SAME S TANDS REJECTED. 7. IN THE RESULT, THE APPEAL BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH OCTOBER, 2013. SD/- (B.R. JAIN) ACCOUNTANT MEMBER JAIPUR, DATED : 04/10/2013 * RANJAN COPY FORWARDED TO :- 1. SMT. MUNNI AGARWAL, JAIPUR. 2. THE DCIT, CENTRAL CIRCLE 3, JAIPUR. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (ITA NO. 691/JP/2013) BY ORDER, AR ITAT JAIPUR.