Pramod Goyal (HUF), Delhi V. ITO, New Delhi

ITA 727/DEL/2014

• Counselvise Citation: 72720114 RSA 2014
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-06-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 07-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEEHAR RANJAN
• Assessee Lawyers: SANJEEV SAXENA
• Keywords: Gift; Accommodation entries
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER ITA NO.727/DEL/2014 ASSESSMENT YEAR : 2004-05 PRAMOD GOYAL (HUF), KP-218, PITAMPURA, DELHI. PAN : AAFHP0511C VS. ITO, WARD 25(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANJEEV SAXENA, FCA RESPONDENT BY: SHRI NEEHAR RANJAN PANDEY, ADDL.CIT DATE OF HEARING : 18.06.2015 DATE OF PRONOUNCEMENT : .06.2015 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 31.12.2013 UPHOLDING AN ADDITION OF R S.5 LAC MADE BY THE AO U/S 68 OF THE INCOME-TAX ACT, 1961 (HEREINAF TER ALSO CALLED THE ACT) IN RELATION TO THE ASSESSMENT YEAR 2004-05. ITA NO.727/DEL/2014 2 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE INVESTIGATION WING, DELHI, CONDUCTED A LARGE-SCALE INVESTIGATION TO UNEARTH A HUGE RACKET INVOLVING ACCOMMODATION ENTRY PROVIDERS. SU CH ENTRY PROVIDERS WERE FOUND TO BE GIVING ACCOMMODATION ENTRIES IN TH E FORM OF BOGUS GIFTS/LOANS/SHARE APPLICATION MONEY/CAPITAL GAINS, ETC., BY CHEQUES/DDS IN LIEU OF CASH RECEIVED FROM INTENDING BENEFICIARI ES. THE LIST OF BENEFICIARIES WHO HAD TAKEN ACCOMMODATION ENTRIES F ROM SUCH PERSONS/FIRMS ALSO INCLUDED THE NAME OF THE ASSESSE E. FROM SUCH INFORMATION RECEIVED BY THE AO FROM THE INVESTIGATI ON WING, IT TRANSPIRED THAT THE ASSESSEE RECEIVED ALLEGED GIFT OF RS.5 LAC FROM ONE SHRI GANESH GOYAL (SIC. GIRISH KUMAR GOYAL). THE A O INITIATED THE PROCEEDINGS U/S 148. DURING THE COURSE OF SUCH ASS ESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPON TO SUBMIT COPY OF INCOME-TAX RETURN ALONG WITH THE BALANCE SHEETS AND DETAILS OF TRANSACTIONS WITH THE ALLEGED DONOR WITH THE DOCUMENTARY EVIDENCE IN SUPP ORT THEREOF. THE AO ALSO REQUESTED THE ASSESSEE TO PRODUCE THE DONOR . DESPITE THE REPEATED REQUESTS MADE BY THE AO FOR PRODUCTION OF THE DONOR, THE ASSESSEE FAILED TO PRODUCE SUCH PERSON. IT WAS, HO WEVER, MAINTAINED THAT THE GIFT WAS GENUINELY RECEIVED FROM THE DONOR . THE ASSESSEE ITA NO.727/DEL/2014 3 REQUESTED THE AO TO ISSUE NOTICE TO THE DONOR DIREC TLY. ONCE AGAIN, THE AO REQUIRED THE ASSESSEE TO PRODUCE THE DONOR, WHIC H THE ASSESSEE FAILED TO COMPLY WITH. IN THE ABSENCE OF PRODUCTIO N OF THE ALLEGED DONOR, THE AO MADE AN ADDITION OF RS.5 LAC U/S 68 O F THE ACT, WHICH CAME TO BE UPHELD IN THE FIRST APPEAL. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT T HE DISPUTE IS ONLY ABOUT THE GIFT OF RS.5 LAC SHOWN TO HAVE BEEN RECEIVED BY THE ASSESSEE FROM ONE SHRI GANESH GOYAL FOR WHICH THE AO REQUIRED THE ASSESSEE TO PRODUCE HIM WHICH THE ASSESSEE FAILED TO DO SO. FR OM THE OPENING PART OF THE ASSESSMENT ORDER, IT IS CLEAR THAT THE INVES TIGATION WING UNEARTHED A RACKET OF ACCOMMODATION ENTRY PROVIDERS AND THE L IST OF BENEFICIARIES ALSO INCLUDED THE NAME OF THE ASSESSEE WITH SIMILAR AMOUNT OF GIFT AT RS.5 LAC. HOWEVER, THE FACT THAT THE ASSESSEES NA ME APPEARED IN THE LIST OF BENEFICIARIES CANNOT, PER SE , LEAD TO AN IRREBUTTABLE PRESUMPTION OF THE ASSESSEE HAVING RECEIVED BOGUS GIFTS. AT THE SA ME TIME, THERE IS ALSO AN OBLIGATION ON THE PART OF THE ASSESSEE TO ESTABL ISH THE GENUINENESS OF THE GIFT, IF HE WANTS TO ESCAPE THE LATCHES OF SEC TION 68 OF THE ACT. IT IS OBSERVED THAT DESPITE THE ASSESSEES REQUEST TO THE AO FOR SUMMONING ITA NO.727/DEL/2014 4 THE DONOR DIRECTLY BECAUSE OF THE INABILITY OF THE ASSESSEE TO PRODUCE SUCH PERSON, THE AO DID NOT DO SO. WHEN THIS FACT I S CONSIDERED IN THE LIGHT OF THE FACT THAT THE NAME OF THE ASSESSEE DID APPEAR IN THE LIST OF THE BENEFICIARIES OF THE ACCOMMODATION ENTRIES, I AM OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUAT ELY IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO TH E FILE OF THE AO. I ORDER ACCORDINGLY AND DIRECT THE AO TO INVESTIGATE THIS I SSUE FURTHER AND, IF NEED BE, ISSUE SUMMONS TO THE ALLEGED DONOR. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 1 9 TH JUNE, 2015. SD/- (R.S. SYAL) ACCOUNTANT MEMBER DATED: 19 TH JUNE, 2015. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI