BHAVNA M. SACHDEV, MUMBAI V. ITO 14(2)(3), MUMBAI

ITA 7209/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4213 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 04-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH SONKAR
• Assessee Lawyers: N M PORWAL
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,MUMBAI BENCH B, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.7209/MUM/2012 ASSESSMENT YEAR: 2009-10 SMT. BHAVNA M. SACHDEV 6/8, ROOM NO. 111, RAJDA APARTMENT, 2 ND CROSS LANE, OLD HANUMAN LANE, KALBADEVI, MUMBAI-400002. PAN: AMBPS9392Q VS. ITO- 14(2)(3), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N.M. PORWAL (AR) REVENUE BY : SHRI PIYUSH SONKAR (DR) DATE OF HEARING : 05.04.2016 DATE OF PRONOUNCEMENT : 07.04.2016 O R D E R PER PAWAN SINGH, JM: 1. THE PRESENT APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 21 SEPTEMBER 2012, IN RESPECT OF AYS 2009-10. THE ASSE SSEE HAS RAISED ONLY ONE GROUND OF APPEAL AGAINST THE ADDITION OF RS. 5 LAKH AS UNDISCLOSED INCOME/BOGUS GIFT RECEIVED FROM HER DAUGHTER SMT. HEENA M SACHDE V, RESIDENT OF DUBAI. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME ON 30 JULY 2009, DECLARING TOTAL INCOME OF RS. 3,58,600/-. THE RETUR N OF INCOME WAS SELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESSMENT IT WAS OB SERVED BY AO THAT ASSESSEE RECEIVED AN AMOUNT OF RS. 5,00,000/-AS GIFT. THE AS SESSEE WAS ASKED TO PROVE THE GENUINENESS OF THE SAID GIFT AND TO PROVE THE IDENT ITY OF DONNER, FINANCIAL CAPACITY AND GENUINENESS OF TRANSACTION. THE ASSESSEE REPLIE D THAT HER DAUGHTER WHO IS RESIDING IN DUBAI AND HER HUSBAND IS DOING BUSINESS IN THE NAME OF M/S DIA 2 ITA NO. 7209/M/2012 SMT. BHAVNA M. SACHDEV. INTERNATIONAL. THE ASSESSEE EXPLAINED THAT MAIDEN N AME OF HER DAUGHTER WAS MS. HEENA M SACHDEV, AND AFTER HER MARRIAGE SHE IS KNOW N AS DIA BALANI,WHO HAD GIFTED HER THE SAID AMOUNT DUE TO LOVE AND AFFECTIO N.THE AO REJECTED THE CONTENTION OF ASSESSEE AND CONCLUDED THAT ASSESSEE HAS RECEIVED HER UNDISCLOSED INCOME THROUGH M/S/ DIA INTERNATIONAL FZE WHICH THE ASSESSEE IS TRYING TO COVER IN THE GARB OF NRI, GIFT AND ADDED AS ASSESSEES UN DISCLOSED INCOME UNDER SECTION 68 OF THE ACT. 3. AGGRIEVED BY THE ORDER OF AO ASSESSEE FILED APPEAL BEFORE CIT(A). AFTER HEARING THE CONTENTION OF ASSESSEE CIT(A) DISMISSED THE APP EAL OF ASSESSEE IN THE IMPUGNED ORDER HOLDING THAT NEITHER FINANCIAL CAPAC ITY NOR GENUINENESS OF GIFT COULD BE ESTABLISHED FROM THE EVIDENCE RELIED UPON BY THE ASSESSEE. CIT(A) FURTHER CONCLUDED THAT ONE CANNOT IGNORE THAT THE G IFT IS CLAIMED TO BE RECEIVED FROM THE DAUGHTER OR SON-IN-LAW, IF IT IS BELIEVED FOR THE SAKE OF ARGUMENT THAT BANK ACCOUNT IN THE NAME OF M/S DIA INTERNATIONAL W AS OWNED BY MR JEETU R BALANI IS NOT PROVED . IT IS STRANGE THAT UNDER HIN DU CUSTOMS AND USAGE GIFT IS GIVEN BY DAUGHTER OR SON-IN-LAW TO MOTHER-IN-LAW. A GAINST THE ORDER OF CIT(A) THE PRESENT APPEAL IS FILED BEFORE US. 4. WE HAVE HEARD LD.AR FOR ASSESSEE AND DR FOR REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. LD AR OF THE ASSESSEE ARGUED T HAT ASSESSEE HAS PROVED ON RECORD THE IDENTITY OF PERSON, GENUINENESS OF TRANS ACTION, AND CREDITWORTHINESS OF THE DONNER. IN FACT THE AMOUNT WAS GIFTED BY THE DA UGHTER OF ASSESSEE. THERE WAS NO DISPUTE THAT THE AMOUNT WAS RECEIVED THROUGH BAN KING CHANNEL. THE DONNER HAS GIVEN CONFIRMATION LETTER WHICH WAS FILED BEFOR E THE REVENUE AUTHORITIES. THE ASSESSEE FILED THE STATEMENT OF ACCOUNT OF M/S DIA INTERNATIONAL FROM COMMERCIAL BANK OF DUBAI (A/C NO. 1001059904 FOR THE PERIOD 1 MARCH 2009 TO 31 MACH 2009). TO PROVE THE RELATIONSHIP WITH THE DONNER TH E ASSESSEE FILED MARRIAGE CERTIFICATE HER DAUGHTER WITH MR JEETU R BALANI. DR FOR REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW AND ARGUED THAT TRANSACT IONS WERE NOT GENUINE AND THE ADDITION WAS MADE WHEN NO PROPER AND SATISFACTORY E XPLANATION WAS GIVEN BEFORE THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE SEEN THAT THE AMOUNT W AS CREDITED IN THE BANK OF 3 ITA NO. 7209/M/2012 SMT. BHAVNA M. SACHDEV. ASSESSEE THROUGH BANKING CHANNEL. THE ASSESSEE SUCC ESSFULLY PROVED HER RELATIONSHIP WITH THE DONNER. OTHERWISE THERE IS NO DISPUTE ABOUT THE RELATIONSHIP OF ASSESSEE WITH THE DONNER. THE DONNER HERSELF CON FIRMED THE GIFT VIDE CONFIRMATION LETTER DATED 15 TH MARCH 2009. WE HAS SEEN IN THE PAPER BOOK THE COPY OF MARRIAGE CERTIFICATE OF ASSESSEES DAUGHTER , IDENTITY CARD , THE RECORD OF DIA INTERNATIONAL, A COMPANY INCORPORATED IN UNITED ARAB EMIRATES. THE BANK ACCOUNT OF M/S DIA INTERNATIONAL WAS HAVING SUFFICI ENT FUNDS. THUS THE IDENTITY OF PERSON AND CREDITWORTHINESS OF THE PARTY WAS DULY PROVED. IDENTITY OF THE PERSON WAS NOT DISPUTED BY THE REVENUE AUTHORITY. THE ASSE SSEE HAS RECEIVED THE AMOUNT OF RS. 5 LAKH AS A GIFT FROM HER DAUGHTER WHICH WAS GIFTED BY HER DUE TO LOVE AND AFFECTION TO HER MOTHER. THE GIFT IS ALWAYS MADE DU E TO LOVE AND AFFECTION AND NO OTHER CONSIDERATION IS REQUIRED UNDER LAW. 6. SECTION 122 AND 123 OF TRANSFER OF PROPERTY ACT, DE ALS WITH THE CONCEPT OF GIFT WHICH ARE REFERRED BELOW: 122.'GIFT'DEFINED 'GIFT' IS THE TRANSFER OF CERTAIN EXISTING MOVABLE OR IMMOVABLE PROPERTY MADE VOLUNTARILY AND WITHOUT CONSIDERATION, BY ONE PERSO N, CALLED THE DONOR, TO ANOTHER, CALLED THE DONOR, AND ACCEPTED BY OR ON BE HALF OF THE DONEE. ACCEPTANCE WHEN TO BE MADE-SUCH ACCEPTANCE MUST BE MADE DURING THE LIFETIME OF THE DONOR AND WHILE HE IS STILL CAPABLE OF GIVIN G. IF THE DONEE DIES BEFORE ACCEPTANCE, THE GIFT IS VO ID. 123. TRANSFER HOW EFFECTED FOR THE PURPOSE OF MAKING A GIFT OF IMMOVABLE PROPE RTY, THE TRANSFER MUST BE EFFECTED BY A REGISTERED INSTRUMENT SIGNED BY OR ON BEHALF OF THE DONOR, AND ATTESTED BY AT LEAST TWO WITNESSES. FOR THE PURPOSE OF MAKING A GIFT OF MOVABLE PROPERT Y, THE TRANSFER MAY BE EFFECTED EITHER BY A REGISTERED INSTRUMENT SIGNED A S AFORESAID OR BY DELIVERY. SUCH DELIVERY MAY BE MADE IN THE SAME WAY AS GOODS SOLD MAY BE DELIVERED. WE HAVE NOTICED THAT CIT (A) WHILE CONSIDERING THE FACT OF THE PRESENT CASE CONCLUDED THAT UNDER THE HINDU CUSTOM AND USAGES TH E GIFT BY DAUGHTER OR SON-IN- LAW IS STRANGE. THERE IS NO BAR UNDER THE HINDU LAW OR UNDER T.P. ACT TO MAKE GIFT BY DAUGHTER TO MOTHER. WE DO NOT AGREE WITH THE ORT HODOX CONCEPT OF LD CIT (A). THE ASSESSEE SUCCESSFULLY PROVED THE IDENTITY OF PE RSON, GENUINENESS OF TRANSACTION AND CREDITWORTHY OF THE DONNER. IN THE ABOVE DISCUSSION WE DO NOT FIND ANY MERIT IN THE ORDER OF CIT(A) AND THE SAME IS QUASHED. 4 ITA NO. 7209/M/2012 SMT. BHAVNA M. SACHDEV. 7. IN THE ABOVE CIRCUMSTANCES THE ADDITION MADE BY AO AND SUSTAINED BY CIT(A) IS DELETED. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 7 TH APRIL, 2016. SD/- SD/- ( R.C. SHARMA ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI; DATED 07/04/2016 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/