NEELMANI JAIN, Jaipur V. Ito, Jaipur

ITA 9/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99360 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Assessee Lawyers: N S VYAS
• Keywords: Gift
• Section: 143(3); 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 09/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2009-10 NEELMANI JAIN, 10, GANGWAL PARK, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 5(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AANPJ 9480 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI N.S. VYAS (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/10/2015 MN?KKS'K .KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 21/10/2015 VKNS'K@ ORDER PER VIKRAM SINGH YADAV, A.M.: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 18/11/2013 PASSED BY THE LD CIT(A)-II, JAIPUR FOR A. Y. 2009-10. THE RESPECTIVE GROUNDS OF APPEAL ARE REPRODUCED AS UNDE R:- 1. THAT THE AUTHORITIES BELOW ERRED IN MAKING THE AD DITION OF RS. 3,90,000/- AS UNDISCLOSED INCOME. 2. THAT THE AUTHORITIES BELOW FURTHER ERRED IN NOT AC CEPTING THE FACTS THAT THE SO GIFTED AMOUNT OF RS. 3,90,000/- WA S FROM ITA 09/JP/2014_ NEELMANI JAIN VS. ITO 2 THE BANK ACCOUNT OF THE PETITIONERS FATHER AND GIF TED TO HER DAUGHTER. 3. WITHOUT PREJUDICE TO THE ABOVE, THE AUTHORITIES BELOW HAVE FURTHER ERRED IN CONFIRMING THE ADDITION OF RS. 3,9 0,000/- WHEREAS THE CREDIT ENTRY IN THE BOOKS OF ACCOUNT IS ONLY RS. 3,59,031/-. 4. THAT THE FACTS MENTIONED BY THE AI AS WELL AS AUTH ORITIES BELOW ARE NOT CORRECT AS THE ENTRIES ARE DULY CONFIR MED FROM THE PETITIONERS FATHER BANK ACCOUNT. 2. THE ASSESSEE HAS RAISED FOUR GROUNDS OF APPEAL. H OWEVER, THE EFFECTIVE GROUND IS WHETHER THE LD CIT(A) HAS ERRED I N CONFIRMING THE ADDITION OF RS. 3.90 LACS AS UNDISCLOSED INCOME AND NOT ACCEPTING THE FACT THAT THE SAID AMOUNT WAS GIFTED TO THE ASSESSEE BY HER FATHER. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS AN INDIVIDUAL AND FILED HER RETURN ON 28/07/2009 DECLARING TOTAL INCOME OF RS. 14,80,370/-. THE CASE WAS SCRUTINIZED U/S 143(3) OF T HE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND ASSESSMENT ORDER WAS PAS SED ON 09/12/2011. DURING THE COURSE OF ASSESSMENT PROCEED INGS WHILE EXAMINING BANK ACCOUNTS OF THE ASSESSEE, THE ASSESS ING OFFICER FOUND THAT THERE ARE TWO CASH DEPOSITS AMOUNT TO RS. 59,76 6/- AND 2,99,265/- IN THE BANK ACCOUNT OF SON OF THE ASSESSEE NAMELY M ASTER VISHWAKRIT CHORDIA AND THE ASSESSEE HERSELF. THE ASSESSEE WAS A SKED TO SUBMIT THE ITA 09/JP/2014_ NEELMANI JAIN VS. ITO 3 SOURCE OF THE SAID DEPOSITS. IN RESPONSE, THE ASSES SEE SUBMITTED THAT SHE HAS RECEIVED A GIFT OF RS. 3.90 LACS FROM HER F ATHER SHRI P.M. LODHA. IN SUPPORT OF HER CONTENTION, A CONFIRMATION DATED 17/11/2011 FROM SHRI P.M. LODHA AND COPY OF HIS BANK ACCOUNT WAS ALSO SUB MITTED. IN ORDER TO VERIFY THE GENUINENESS OF THE GIFT, SHRI P.M. LODHA , DONOR OF THE GIFT WAS ASKED TO PERSONALLY APPEAR BEFORE THE ASSESSING OFF ICER. HOWEVER, HE FAILED TO APPEAR. FURTHER ON PERUSAL OF BANK ACCOUN T OF SHRI P.M. LODHA, THE ASSESSING OFFICER NOTED THAT HE HAD WITHDRAWN RS. 3.90 LACS ON 10 TH JULY, 2008 THROUGH CHEQUE NO. 764250, FROM ICICI BA NK, JAIPUR. THE ASSESSING OFFICER FURTHER NOTED THAT IF SHRI P.M. L ODHA WAS HAVING ANY INTENT TO GIVE GIFT TO HER DAUGHTER THEN HE COULD H AVE GIVEN SUCH GIFT THROUGH CHEQUE, AS BOTH OF THEM WERE HAVING BANK ACC OUNT AT SAME PLACE. INSTEAD OF GIVING GIFT THROUGH CHEQUE, SHRI P.M. LODHA WENT TO THE BANK WITH A CHEQUE IN HIS OWN NAME, WITHDRAWN CASH OF R S. 3.90 LACS, BROUGHT IT HOME AND THEN GIFTED IT TO HIS DAUGHTER. NO GIFT DEED WAS EXECUTED AT THAT TIME. THEN AFTER 15 DAYS, OUT OF TH E GIFT SO RECEIVED, THE ASSESSEE CARRIED THE CASH OF RS. 3,59,031/- TO THE BANK AND DEPOSITED IN TWO SEPARATE ACCOUNTS IN ODD FIGURES OF RS. 59,766/- AND RS. 2,99,265/-. THE LD ASSESSING OFFICER FURTHER NOT ED THAT SHRI P.M. LODHA IS HAVING CAPITAL OF MORE THAN RS. 5.50 CRORE S AS ON 31/3/2011. ITA 09/JP/2014_ NEELMANI JAIN VS. ITO 4 HIS ANNUAL INCOME IS MORE THAN RS. 82 LACS BUT HIS DRAWINGS FOR PERSONAL EXPENSES ARE MERELY RS. 40,000/- FOR THE WHOLE YEAR , WHICH IS JUST UNBELIEVABLE. IT SEEMS THAT A WITHDRAWAL FOR PERSONA L EXPENSES HAS BEEN SHOWN AS GIFT. THE IDENTITY AND THE CREDITWORTHIN ESS OF THE DONOR CAN BE ACCEPTED AS PROVED BUT THE GENUINENESS OF TH E TRANSACTION IS NOT PROVED FOR THE REASON THAT THE DONOR WAS NOT PRESENT ED FOR CROSS EXAMINATION AND CONTENTS OF CONFIRMATION DATED 17/1 1/2011 OF SHRI P.M. LODHA IS NOTHING BUT A SELF SERVING STATEMENT. HE R ELIED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. DUR GA PRASAD MORE (82 ITR 540) AND HELD THAT THE SURROUNDING CIRCUMSTANTIA L EVIDENCES SHOW THAT SHRI P.M. LODHA HAS NOT GIVEN ANY GIFT TO THE ASSESSEE. HE, THEREFORE, HELD THAT THE ASSESSEE HAD FAILED TO PRO VE THE GENUINENESS OF THE GIFT TRANSACTION AND RECEIPT OF RS. 3.90 LACS F ROM UNDISCLOSED SOURCE WAS ADDED TO THE INCOME OF THE ASSESSEE UNDER THE PR OVISIONS OF SECTION 68 OF THE ACT. 4. AGGRIEVED, THE ASSESSEE TOOK THE MATTER BEFORE T HE LD CIT(A) WHEREIN THE ASSESSEE REITERATED ITS SUBMISSION MADE BEFORE THE ASSESSING OFFICER AND FURTHER SUBMITTED THAT GIFT T O THE PETITIONER IS SUPPORTED BY THE GIFT DEED AND BANK ACCOUNT OF THE DONOR SHRI P.M. ITA 09/JP/2014_ NEELMANI JAIN VS. ITO 5 LODHA. THE ASSESSEE FURTHER SUBMITTED THAT GENUINENE SS OF THE GIFT CANNOT BE DISPUTED DUE TO THE FACT THAT DONOR HAVE SUFFICIENT CASH IN HAND WITH HIM, WITHDRAWN FROM HIS BANK ACCOUNT AND GIF TED TO HER DAUGHTER. AS REGARDS, THE WITHDRAWAL OF RS. 40,000/- NOTED BY THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED THAT THE DONOR HAS WITHDRAWN FUNDS AMOUNTING TO RS. 1.60 LACS FROM HIS VARIOUS B ANK ACCOUNTS, SUCH AS HDFC BANK, ANDHARA BANK AND ICICI BANK WHEREAS TH E LD ASSESSING OFFICER HAS CONSIDERED THE WITHDRAWAL FROM ONLY HDFC BANK. THE LD CIT(A) NOTED THAT THERE WAS CASH WITHDRAWAL OF RS. 3.90 LACS ON 10/07/2008 WHEREAS THE APPELLANT DEPOSITED CASH IN T HE BANK ACCOUNT ON 25/7/2008. BOTH THE PARTIES ARE HAVING BANK ACCO UNTS IN THE SAME BANK, THEREFORE IT IS NOT BELIEVABLE THAT DONOR WIL L WITHDRAW MONEY FROM THE BANK, KEEP IT WITH HIM FOR 15 DAYS AND THEN GIFT THE SAME TO THE APPELLANT AND APPELLANT WILL DEPOSIT THAT MONEY IN T HE BANK. FURTHER THE LD CIT(A) ENDORSED THE FACT IN RESPECT OF WITHDRAWAL O F RS. 40,000/- BY THE FATHER OF THE ASSESSEE BY SAYING THAT PERSON WIT H SUBSTANTIAL ANNUAL INCOME WILL DEFINITELY HAVE HIS PERSONAL EXPENSES C OMMENSURATE TO ITS INCOME. THE LD CIT(A), THEREFORE, HELD THAT GENUINENE SS OF GIFT IS NEVER PROVED BY THE APPELLANT SINCE ALL SURROUNDING CIRCU MSTANCES DO NOT SUPPORT THE APPELLANTS CLAIM. ITA 09/JP/2014_ NEELMANI JAIN VS. ITO 6 5. THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDERS OF THE LD. ASSESSING OFFICER AS WELL AS LD CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE ASSESSMENT ORDER, ORDER OF THE LD CIT(A) AND SUBMISSIONS AND THE PAPER BOOK FILED BY THE AR. FIRSTLY, IT IS NOTED THAT IDENTITY AND CREDITWORTHINESS OF THE DONOR HAS NOT BEEN DOUBTED E ITHER BY THE ASSESSING OFFICER OR BY THE LD CIT(A). ONLY LIMITED ISSUE THAT ARISES BEFORE US IS THE GENUINENESS OF GIFT TRANSACTION AM OUNTING TO RS. 3.90 LACS, WHICH AS PER THE APPELLANT IS A GIFT FROM HER FATHER, WHEREAS, AS PER THE ASSESSING OFFICER, THE ASSESSEE HAS FAILED TO P ROVE THE SOURCE, ACCORDINGLY, IT IS IN THE NATURE OF UNDISCLOSED INC OME. IN THIS REGARD, IT IS NOTED THAT THE APPELLANT HAS SUBMITTED A CONFIRMATI ON DATED 17/11/2011 FROM SHRI P.M. LODHA WHERE HE HAD CONFIRMED THAT HE HAD GIFTED A SUM OF RS. 3.90 LACS IN CASH TO HER DAUGHTER SMT. NEELM ANI JAIN (APPELLANT), WIFE OF SHRI B.K. JAIN ON 10 TH OF JULY, 2008. FURTHER IN THE SAID LETTER, IT IS STATED THAT THE AMOUNT HAS BEEN GIFTED AS HIS NATUR AL LOVE AND AFFECTION TO HER. THIS AMOUNT WAS WITHDRAWN BY HIM (DONOR) FROM H IS SAVINGS BANK ACCOUNT NO. 001201009312 WITH ICICI BANK, SUBHA SH NAGAR, C- SCHEME, JAIPUR. SO IN THE LIGHT OF THIS, IT IS CLEA R THAT THE OBSERVATION OF ITA 09/JP/2014_ NEELMANI JAIN VS. ITO 7 THE LD CIT(A) IS NOT CORRECT THAT THE MONEY WAS WITHD RAWN AND KEPT BY THE DONOR FOR 15 DAYS AND THEN GIFTED TO THE APPELL ANT. THE CORRECT FACTUAL POSITION AS APPEARING FROM THE RECORD IS TH AT THE AMOUNT WAS WITHDRAWN ON 10 TH JULY, 2008 AND ON THE SAME DATE, THE MONEY WAS GIFTED TO THE APPELLANT AND THEREAFTER THE APPELLAN T AFTER SPENDING A PART OF AMOUNT, DEPOSITED REMAINING AMOUNT OF RS. 3,59,0 31/- IN HER AND HER SONS BANK ACCOUNTS. AS REGARDS, NON APPEARANCE OF THE DONOR SHRI P.M. LODHA BEFORE THE ASSESSING OFFICER, IT WAS SUBMITTED THAT THE DONOR SHRI P.M. LODHA IS OVER 85 YEARS OF AGE AND BECAUSE OF H IS AGE HE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER. HOWEVER, HE HAS SUBMITTED HIS STATEMENT DATED 17/11/2011 AS WELL AS PRODUCED A COP Y OF HIS BANK STATEMENT, WHICH PROVES BEYOND DOUBT THAT HE HAS GIF TED AN AMOUNT OF RS. 3.90 LACS TO HIS DAUGHTER. FURTHER ON QUERY FRO M THE BENCH THAT IF THE DONOR SHRI P.M. LODHA CAN GO TO THE BANK TO WITH DRAW THE AMOUNT, WHAT STOPS HIM FROM MAKING AN APPEARANCE BEFORE THE ASSESSING OFFICER. THE LD AR HAS SUBMITTED THAT THE DONOR SHRI P.M. LODHA HAD NOT GONE TO THE BANK AS WELL AND THE MONEY WAS WITHDRAWN TH ROUGH SELF CHEQUE AND HE HAS SENT ONE OF HIS FAMILYS MEMBER T O WITHDRAW THE AMOUNT. SO GIVEN THE ABOVE FACTUAL POSITION (SUBSTA NTIATED BY APPELLANT THROUGH APPROPRIATE DOCUMENTS), THE IDENTITY, CREDI TWORTHINESS AS WELL ITA 09/JP/2014_ NEELMANI JAIN VS. ITO 8 AS GENUINENESS OF THE GIFT TRANSACTION HAS BEEN PRO VED AND IN THE LIGHT OF ABOVE, THE ADDITION MADE BY THE ASSESSING OFFICE R AND CONFIRMED BY THE LD CIT(A) AMOUNTING TO RS. 3.90 LACS U/S 68 OF T HE ACT IS DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/10/2015. SD/- SD/- VKJ-IH-RKSYKUH FOE FLAG ;KNO (R.P.TOLANI) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21 ST OCTOBER, 2015 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. NEELMANI JAIN, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 5(2), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 09/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR