Smt. Mohinder Kaur Josh MLA, Hoshiarpur V. The DCIT, Hoshiarpur

ITA 90/ASR/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73188 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-01-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 09-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 PAN: ACYPJ9087J SMT. MOHINDER KAUR JOSH, MLA VS. D.C.I.T. , WARD NO. 7, PIPLANWALA HOSHIARPUR JALANDHAR ROAD, HOSHIARPUR (APPELLANT) (RESPONDENT) ASSESSEE BY: NONE DEPARTMENT BY: SH. MAHAVIR SINGH, SR.DR DATE OF HEARING: 08.01.2014 DATE OF PRONOUNCEMENT: 16.01.2014 ORDER PER BENCH 1. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 16.01.2012 PASSED BY LEARNED CIT(A), JA LANDHAR, FOR THE ASSESSMENT YEAR 2001-02. 2. THE PRESENT APPEAL WAS FILED BY THE ASSESSEE ON 09.03.2012 WHICH FIRSTLY CAME UP BEFORE THIS BENCH ON 27.06.2012 AND SH. J.S. BHASIN, ADVOCATE, LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED MANY TIMES AND REQUESTED FOR ADJOURNMENT WHICH WAS GRANT ED TO HIM. ON 17.01.2013, THE CASE OF THE ASSESSEE CAME UP FOR HE ARING BEFORE THE BENCH BUT NEITHER ASSESSEE NOR HER AUTHORIZED REPRESENTAT IVE APPEARED TO PROSECUTE 2 I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FO R SEEKING ADJOURNMENT INSPITE OF VALID SERVICE OF NOTICE FOR 17.01.2013 T HEREFORE, THIS BENCH DISMISSED THE APPEAL FOR NON-PROSECUTION ON THE VER Y DATE. LATER ON, IN THE MISCELLANEOUS APPLICATION I.E. M.A. NO. 29(ASR)/201 3 FILED BY THE ASSESSEE, THIS BENCH RECALLED THE ORDER DATED 17.01.2013 BY P ASSING THE COMBINED ORDER DATED 10 TH MAY, 2013 AND FIXED THE APPEAL OF THE ASSESSEE FOR HEARING ON 26.08.2013. ON 26.08.2013, THE APPEAL OF THE ASS ESSEE WAS AGAIN ADJOURNED FOR 14.10.2013 ON THE WRITTEN REQUEST OF THE ASSESSEES COUNSEL. ON 14.10.2013, AGAIN SH. J.S. BHASIN, ADVOCATE, LEA RNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE, REQUESTED FOR ADJO URNMENT AND THE BENCH GIVEN LAST OPPORTUNITY TO HIM AND GRANTED ADJOURNME NT BY FIXING THE CASE OF THE ASSESSEE FOR 20.11.2013. ON 20.11.2013, AGAIN S H. J.S. BHASIN REQUESTED FOR ADJOURNMENT AND THE BENCH GRANTED ADJOURNMENT, AS A LAST OPPORTUNITY, TO THE LEARNED COUNSEL FOR THE ASSESSEE AND FIXED T HE CASE FOR 08.01.2014 WHICH WAS DULY NOTED SH. RAKESH CHOPRA FOR SH. J.S. BHASIN, ADVOCATE. ON 08.01.2014, AGAIN NEITHER ASSESSEE NOR HER AUTHORIZ ED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FI LED ANY APPLICATION SEEKING ADJOURNMENT IN SPITE OF THE VALID SERVICE O F NOTICE FOR 08.01.2014. 3. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES EXPLAIN ED ABOVE, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SE RVED TO ADJOURN THE 3 I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 MATTER AGAIN AND AGAIN. THEREFORE, WE PROCEED TO DE CIDE THE PRESENT APPEAL EX PARTE ON MERIT AFTER HEARING LEARNED DR. 4. WE HAVE HEARD LEARNED DR AND GONE THROUGH THE ORDER S PASSED BY THE REVENUE AUTHORITY AND THE SMALL PAPER BOOK F ILED BY THE ASSESSEE CONTAINING PAGES FROM 1 TO 10, WHICH INCLUDES WRITT EN SUBMISSIONS; COPY OF AFFIDAVIT OF SMT. SUKHDEV KAUR, SISTER WITH COPY OF CHEQUE; ASSESSEES STATEMENT OF AFFAIRS FOR F.Y. 1999-2000; ASSESSEES STATEMENT OF AFFAIRS FOR F.Y. 2000-2001; AND STATEMENT OF AFF AIRS OF A HUSBAND FOR F.Y. 1999-2000; AND OUR FINDINGS ON THE ISSUES IN DISPUTE ARE AS UNDER: I. THE ASSESSEE HAS RAISED MAINLY THREE GROUNDS IN THE PRESENT APPEAL. AS REGARDS TO GROUND NO. 1, ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER BY STATING THAT LEARNED FIRST APPELLATE AUTHO RITY WAS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER FOR INITIATING PROCEEDINGS UNDER SECTION 148 OF THE INC OME TAX ACT, 1961 (IN SHORT THE ACT). IN THE IMPUGNED ORDER, L EARNED CIT(A), JALANDHAR, HAS DEALT THIS GROUND AS GROUND NO. 5 AT PARAS NO. 2 TO 2.3 (PAGES NO 2 TO 5). HE MAINLY HELD THAT THE ASSE SSING OFFICER HAD RECEIVED CERTAIN INFORMATION FROM DCIT(INV), JA LANDHAR, ABOUT CERTAIN DEPOSITS IN THE ASSESSEES BANK ACCOU NT AND OF MAKING CERTAIN INVESTMENTS BUT THE ASSESSING OFFICE R COULD NOT CO- 4 I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 RELATE THESE ENTRIES OF DEPOSITS WITH THE ASSESSEE S RETURN OF INCOME AND HE FORMED HIS BELIEF THAT THE INCOME REPRESENTE D BY THESE RECEIPTS AND INVESTMENTS, INCLUDING THE RECEIPTS OF MORE THAN RS. 14 LAKHS FROM THE ASSESSEES DAUGHTER RESIDING IN U SA, REPRESENTED THE ASSESSEES UNDISCLOSED INCOME. II. WE HAVE THOROUGHLY GONE THROUGH THE IMPUGNED ORDER ON THE LEGAL GROUND RAISED BY THE ASSESSEE AND WE ARE OF THE VIE W THAT THE ASSESSING OFFICER HAS RECORDED THE REASON, WHICH TH E LEARNED FIRST APPELLATE AUTHORITY HAS REPRODUCED IN PARA NO. 2.2 AT PAGE 4 OF THE IMPUGNED ORDER AND HE ALSO FORMED HIS OPINION, AND ON THIS BASIS HE BELIEVES THAT THE ASSESSEES INCOME HAD ESCAPED ASSESSMENT. WE ARE OF THE VIEW THAT THE ASSESSING OFFICER HAS NOT ACTED SOLELY ON THE ADVICE OF ANOTHER AUTHORITY BUT HE HAS ACTED UP ON SOME DEFINITE INFORMATION/EVIDENCE AND STARTED THE PROCEEDINGS UN DER SECTION 148 OF THE ACT BY APPLYING HIS MIND. THEREFORE, WE ARE OF THE VIEW THAT LEARNED FIRST APPELLATE AUTHORITY HAS RIGHTLY REJECTED THE ISSUE INVOLVED IN GROUND NO. 1 BY UPHOLDING THE ACTION OF THE ASSESSING OFFICER OF ISSUING NOTICE UNDER SECTION 148 OF THE ACT TO THE ASSESSEE. SIMILARLY, WE ALSO UPHOLD THE IMPUGNED OR DER ON THE 5 I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 LEGAL GROUND RAISED BY THE ASSESSEE BY DISMISSING T HE SAME AND DECIDE THE ISSUE INVOLVED IN GROUND NO. 1 AGAINST T HE ASSESSEE. III. AS REGARDS TO ADDITION OF RS. 1,90,000/- ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE, AFTER HEARING LEARNED DR AS WELL A S GOING THROUGH THE RECORD AVAILABLE WITH US, WE ARE OF THE VIEW TH AT THERE IS A JOINT SAVING BANK ACCOUNT OF THE ASSESSEE WITH HER HUSBAN D IN THE STATE BANK OF INDIA, HOSHIARPUR BRANCH, REFLECTED A DEPOS IT OF RS. 1,50,000/- ON 08.07.2000 AND RS. 40,000/- ON 06.11. 2000. THESE DEPOSITS WERE STATED TO BE ON ACCOUNT OF GIFT RECEI VED FROM MRS. SUKHDEV KAUR, WIFE OF SH. HIMMAT SINGH, RESIDENT OF TALWANI SALHAN, DASUYA. AS PER RECORD, DONOR CONFIRMED THAT THE GIFT OF RS. 1,50,000/- HAS BEEN GIVEN OUT OF NRI ACCOUNT IN OBC , TANDA. THE ASSESSING OFFICER REQUESTED THE ASSESSEE TO PRODUCE THE DONOR AND PROVE THE CREDITWORTHINESS OF THE DONOR AND GENUINE NESS OF THE GIFT BUT THE ASSESSEE FAILED TO DO SO AND THE ASSESSING OFFICER MADE THE ADDITION OF RS. 1,90,000/- ON ACCOUNT OF GIFT IN DI SPUTE. LEARNED FIRST APPELLATE AUTHORITY HAS ALSO CONFIRMED THE SA ME BY UPHOLDING THE ASSESSMENT ORDER ON THE ISSUE IN DISP UTE. IV. WE HAVE THOROUGHLY GONE THROUGH THE ORDERS PASSED B Y THE REVENUE AUTHORITY ON THE ISSUE IN DISPUTE AND WE ARE OF THE VIEW THAT THE 6 I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 ASSESSEE HAD RECEIVED FOREIGN REMITTANCES AMOUNTING TO RS. 14,08,003/- DURING THE RELEVANT PREVIOUS YEAR AND T HE ASSESSEE HAS PRODUCED THE NECESSARY EVIDENCE PROVING OTHER FOREI GN REMITTANCES WHICH WERE ACCEPTED BY THE ASSESSING OFFICER, BUT H E DID NOT ACCEPT THE REMITTANCE OF RS. 1.90 LAKHS FOR THE REA SONS DISCUSSED ABOVE. WE ARE OF THE VIEW THAT THE ASSESSING OFFICE R HAS GIVEN ADEQUATE OPPORTUNITY TO THE ASSESSEE TO PROVE THE C REDITWORTHINESS OF THE DONOR AND GENUINENESS OF THE GIFT AS WELL AS THE OCCASION ON WHICH THESE GIFTS WERE MADE BUT THE ASSESSEE FAILED TO DO SO, ESPECIALLY THE ASSESSEE HAS NOT PRODUCED THE DONOR BEFORE THE REVENUE AUTHORITY FOR SUBSTANTIATING HER CLAIM. AS PER RECORD, THE ASSESSEE PLEADED THAT SHE COULD NOT PRODUCE THE DON OR WITHIN A SHORT PERIOD SINCE THE DONOR WAS A NON-RESIDENT BUT THE ASSESSEE FILED AN AFFIDAVIT EXECUTED BY THE DONOR ON 17.12.2 008, MEANING THEREBY, THAT THE DONOR WAS IN INDIA ON 17.12.2008. AS PER PARA NO. 2 OF THE ASSESSMENT ORDER, LEARNED COUNSEL VIDE ORD ER-SHEET ENTRY DATED 18.12.2008 WAS REQUIRED TO PROVE THE CREDITWO RTHINESS OF THE DONOR. HOWEVER, THE DONOR WAS NOT PRODUCED AND LEAR NED COUNSEL ON 19.10.2008 STATED THAT HE HAD NOTHING TO SAY IN THE MATTER. IN OUR VIEW, THE ASSESSING OFFICER HAS RIGHTLY MADE TH E ADDITION OF 7 I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 RS. 1,90,000/- ON ACCOUNT OF UNDISCLOSED SOURCE OF INCOME BECAUSE THE CREDITWORTHINESS OF THE DONOR AND THE GENUINENE SS OF THE GIFT HAVE NOT BEEN PROVED BY THE ASSESSEE AND THE LEARNE D FIRST APPELLATE AUTHORITY HAS ALSO RIGHTLY UPHELD THE ADD ITION IN DISPUTE. WE FEEL THAT NO INTERFERENCE IS REQUIRED IN THE IMP UGNED ORDER ACCORDINGLY WE UPHOLD THE IMPUGNED ORDER ON THE ADD ITION OF RS. 1,90,000/- CHALLENGED BY THE ASSESSEE AND DISMISS T HE ISSUE INVOLVED IN GROUND NO. 2. V. AS REGARDS TO THE ADDITION OF RS. 50,000/- ON THE P URCHASE OF LANCER CAR, WE ARE OF THE VIEW THAT THE REVENUE AUT HORITY HAS STATED THAT THE LANCER CAR WAS PURCHASED BY THE ASSESSEE O UT OF THE SALE PROCEEDS OF OLD CAR AMOUNTING TO RS. 2,00,000/- AND PERSONAL SAVINGS OF RS. 1,00,000/- AND RAISING LOAN OF RS. 5 ,49,000/-. THE CAR HAS BEEN REFLECTED BY SH. GURMEET SINGH, HUSBAN D OF THE ASSESSEE IN HIS STATEMENT OF AFFAIRS AS AT 31.03.20 01. A SUM OF RS. 50,000/- WAS WITHDRAWN OUT OF SAVING BANK ACCOUNT F OR THE PURCHASE OF CAR AND THE SAID WITHDRAWAL APPEARED ON 29.04.2000. THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE ABOUT TH E SAVING OF RS. 50,000/- WHICH THE ASSESSEE IS STATED TO HAVE C ONTRIBUTED FOR THE PURCHASE OF CAR. AS PER THE IMPUGNED ORDER, LEA RNED FIRST 8 I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 APPELLATE AUTHORITY HAS WRITTEN THAT THE ASSESSEE H AD TRANSFERRED A SUM OF RS. 50,000/- TO HER HUSBAND TOWARDS CAR PURC HASE, ALONG WITH THE PAYMENT OF RS. 2 LAKHS TOWARDS INSTALLMENT S FOR THE PURCHASE OF THE CAR. IN THE STATEMENT OF AFFAIRS OF HER HUSBAND AS ON 31.03.2001, THESE VERY AMOUNTS HAVE BEEN TAKEN INTO ACCOUNT BY HIM, ALONG WITH THE CAR LOAN OF RS. 5.49 LACS, FOR THE PURCHASE OF THE CAR VALUED AT RS. 7.99 LACS. THE STATEMENT OF A FFAIRS OF THE ASSESSEES HUSBAND DOES NOT SHOW ANY SEPARATE WITHD RAWAL OF RS. 50,000/- FOR PAYMENT OF THE CAR. LEARNED FIRST APPE LLATE AUTHORITY WAS NOT AGREE WITH THE ASSESSEES CONTENTIONS THAT HER HUSBAND HAD PAID RS. 50,000/- OUT OF THE SAVINGS. IN THE PRESEN T CASE, THE ASSESSEE HAS SHOWN TO HAVE CONTRIBUTED RS. 1 LAKH O UT OF HER PERSONAL SAVINGS TOWARDS THE PURCHASE OF THE CAR AL ONG WITH THE SALE PROCEEDS OR RS. 2 LACS ON THE SALE OF HER OWN CAR. BUT THE SOURCE OF CONTRIBUTION OF RS. 50,000/- BY THE ASSES SEE HAS NOT BEEN PROVED BY ANY PIECE OF EVIDENCE BEFORE THE REVENUE AUTHORITY AND EVEN BEFORE US. THEREFORE, THERE IS NO NEED TO INTE RFERE IN THE WELL REASONED ORDER PASSED BY LEARNED FIRST APPELLATE AU THORITY AND ACCORDINGLY WE UPHOLD THE IMPUGNED ORDER DATED 16.0 1.2012 BY DISMISSING THE APPEAL FILED BY THE ASSESSEE. 9 I.T.A. NO. 90(ASR)/2012 ASSESSMENT YEAR: 2001-02 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16TH JANUARY, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH JANUARY, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SMT. MOHINDER KAUR JOSH, MLA WARD NO . 7, PIPLANWALA, JALANDHAR ROAD, HOSHIARPUR 2. DCIT, HOSHIARPUR 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.