VIRENDRA KUMAR BATRA, Jaipur V. ITO, Jaipur

ITA 988/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4971 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 21-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Gift
• Section: 80C; 143(3); 147; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 988/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI VIRENDRA KUMAR BATRA 180,ADARSH NAGAR JAIPUR CUKE VS. THE ITO WARD- 7 (3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ACAPB 2832 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY:SHRI MANISH AGARWAL ,CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 8/11/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A)-3, JAIPUR DATED 03-11-2015 FOR THE ASSESSME NT YEAR 2008-09 RAISING THEREIN FOLLOWING GROUND:- THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED SERIOUSLY IN LAW AND ON TH E FACTS IN SUSTAINING THE ADDITION MADE BY THE AO U/S 68 OF TH E I.T. ACT 1961 FOR RS. 20,18,096/- ON ALLEGED LACK OF CREDITW ORTHINESS OF THE DAUGHTER OF THE APPELLANT. ITA NO. 988/JP/2015 SHRI VIRENDRA KUMAR BATRA VS. ITO , WARD- 7(3), JAI PUR . 2 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND THE ASSESSEE FILED HIS RETURN OF INCOME U/S 139(1) OF T HE I.T. ACT FOR THE YEAR UNDER CONSIDERATION ON 10-05-2008 DECLARING TOTAL I NCOME OF RS. 1,38,162/- AFTER DEDUCTION U/S 80C OF RS. 58,137/-. THEREAFTER THE ASSESSMENT IN THE CASE OF THE ASSESSEE WAS REOPENED AND WAS COMPLETED U/S 147 R.W.S. 143(3) OF THE ACT AT TOTAL INCOME OF RS. 21,56,160/- BY MAKING AN ADDITION OF RS. 20,18,096/- U/S 68 OF THE ACT AND TREATING THE GIFTS RECEIVED BY THE ASSESSEE FROM HIS DAUGHTER N AMELY ANJU BATRA DHAIMAN AS UNEXPLAINED. DURING THE YEAR UNDER CONSI DERATION, THE ASSESSEE HAD RECEIVED PAYMENTS FROM HIS DAUGHTERS A S UNDER. S.N. DATE OF REMITTANCE AMOUNT IN $ AMOUNT IN RS. SENDER NAME 1. 05-07-207 1,000 40,000 SHEENU BATRA DHAIMAN 2. 31-05-2007 1,000 40,150 SHEENU BATRA DHAIMAN 3. 08-06-2007 1,000 40,300 SHEENU BATRA DHAIMAN 4. 09-08-2007 50,000 20,18,096 ANJU BATRA DHAIMAN 2.2 BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ACTION OF THE AO BY HO LDING AS UNDER:- 4.3 I HAVE CAREFULLY CONSIDERED THE FINDINGS OF T HE AO AS ALSO ARGUMENTS OF THE LD. AR OF THE APPELLANT . SECTION 68 OF THE I.T. ACT DEMANDS THE PROOF OF IDENTITY, G ENUINENESS AND CREDITWORTHINESS FROM THE DONOR. IN THIS CAE, THE ASSESSEE FAILED TO PROVE THE GENUINENESS AND ITA NO. 988/JP/2015 SHRI VIRENDRA KUMAR BATRA VS. ITO , WARD- 7(3), JAI PUR . 3 CREDITWORTHINESS OF THE DONOR, MS. ANJU. THIS IS AL SO EVIDENT FROM THE FACT THAT SHE IS NOT EVEN AN ASSESSEE IN I NDIA OR USA. SO THE IMMEDIATE SOURCE OF GIFTS WAS EXPLAINED TO BE SOLELY FROM MR.G.W. NOIYES WHICH WAS LATER CONVERTE D INTO A GIFT AFTER A PERIOD OF 7 YEARS. THIS SHOWS THAT T HIS ONLY A COOKED UP STORY. CONSIDERING ALL THESE FACTS I FIND THAT THE AO HAS RIGHTLY MADE THE ADDITION OF RS. 20,18,096/- AND THEREFORE, THE ADDITION IS CONFIRMED. 2.3 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD RECEIVED A GIFT OF RS. $50,00 0 FROM HIS DAUGHTER MS. ANJU BATRA DHAIMAN, EQUIVALENT TO INDIAN RS.20, 18,096/-. THIS GIFT WAS TRANSMITTED THROUGH BANKING CHANNEL WHICH IS EV IDENT FROM THE COPY OF THE FOREIGN INWARD REMITTANCE ADVICE ISSUED BY THE BANK OF INDIA DATED 09-08-2007 AND CLEARLY SHOWS REMITTANCE OF U S $ 49990 EQUIVALENT TO RS. 20,18,096 (USD 49990 X RATE 40.37 = INDIAN RUPEES 20,18,096). THIS IS AN ADMITTED FACT THAT THE GIFT WAS RECEIVED BY THE ASSESSEE THROUGH BANKING CHANNEL AND CANNOT BE DOUB TED BY THE LOWER AUTHORITIES. THE FOREIGN INWARD REMITTANCE ADVICE F URTHER SHOWS THAT THE PURPOSE OF REMITTANCE IS FOR PERSONAL GIFTS AND DON ATIONS. THE GENUINENESS OF THIS TRANSACTION FURTHER GETS FORTIF IED FROM THE COPY OF STATEMENT OF THE ACCOUNT OF MS. ANJU BATRA DHAIMAN WITH THE FIDELITY ITA NO. 988/JP/2015 SHRI VIRENDRA KUMAR BATRA VS. ITO , WARD- 7(3), JAI PUR . 4 INVESTMENTS WHICH CLEARLY SHOWS THAT WITHDRAWAL M ADE BY HER ON 07- 08-2007 BY WAY OF WIRE TRANSFER TO BANK OF US $ 50, 000/- (APB 10-11). THE LD. AR OF THE ASSESSEE FURTHER SUBMITTED REGARD ING THE CREDITWORTHINESS OF MS. ANJU BATRA DHAIMAN THAT SHE HAD RECEIVED A GIFT OF US $ 100,000/- ON 10-02-2007 AND US $ 50,000/- O N 6-08-2007 FROM ONE MR. GEORGE W NOYES WHICH GIFTS WAS EARLIER TREA TED BY THE DONOR AS LOAN, HOWEVER, SUBSEQUENTLY CONVERTED INTO GIFT. TH IS TRANSACTION OF LOAN IS CLEARLY EVIDENT FROM THE PROMISSORY NOTE DATED 6 -08-2007 BETWEEN MS. ANJU BATRA DHAIMAN AND GEORGE W NOYES (ASSESSEE'S P APER BOOK PAGE 7). FURTHER, THIS LOAN WAS RENOUNCED BY MR. GEORGE W NOYES AND WAS CONVERTED INTO A GIFT WHICH IS CLEARLY EVIDENT FROM THE COPY OF CONFIRMATION DATED 9-5-2011 EXECUTED BY MR. GEORGE W NOYES DULY SWORN BEFORE NOTARY PUBLIC (ASSESSEE'S PAPER BOOK P AGE 8). THE LD. AR OF THE ASSESSEE RELIED ON VARIOUS CASE LAWS TO THIS EFFECT WHICH HAS BEEN TAKEN INTO CONSIDERATION. HOWEVER, THE LD. AR OF TH E ASSESSEE FILED THE COPY OF JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COU RT IN THE CASE OF CIT VS. MORANI AUTOMATIVES (P) LTD. (DBITA NO. 619/2011 ORDER DATED 23- 10-2013) PRAYING THAT THE ASSESSEE CANNOT BE ASKED TO PROVE THE SOURCE OF SOURCE AS HELD BY HON'BLE JURISDICTIONAL HIGH COURT IN THIS CASE. THE LD. ITA NO. 988/JP/2015 SHRI VIRENDRA KUMAR BATRA VS. ITO , WARD- 7(3), JAI PUR . 5 AR OF THE ASSESSEE LASTLY PRAYED FOR DELETION OF AD DITION OF RS. 20,18,096/- CONFIRMED BY THE LD. CIT(A) U/S 68 OF T HE ACT. 2.4 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORD TH AT THE ASSESSMENT IN THE CASE OF THE ASSESSEE WAS REOPENED AND WAS COMPLETED U/S 147 R.W.S. 143(3) OF THE ACT BY THE AO AT TOTAL INCOME OF RS. 21,56,160/- BY MAKING AN ADDITION OF RS. 20,18,096/- U/S 68 OF THE ACT AN D TREATING THE GIFT RECEIVED BY THE ASSESSEE FROM HIS DAUGHTER NAMELY ANJU BATRA DHAIMAN AS UNEXPLAINED. IN FIRST APPEAL, THE LD. CIT(A) CON FIRMED THE ADDITION OF RS. 20,18,098/- MADE BY THE AO U/S 68 OF THE ACT ON THE GROUND THAT THE ASSESSEE FAILED TO PROVE THE GENUINENESS, CREDITWOR THINESS OF THE DONOR I.E. MS. ANJU BATRA DHAIMAN AND SHE IS NEITHER ASSE SSEE IN INDIA NOR USA. IT IS FURTHER NOTED FROM THE RECORDS THAT THE ASSESSEE HAD RECEIVED THE GIFT OF US $ 50,000/- FROM HIS DAUGHTER ANJU BA TRA DHAIMAN, EQUIVALENT TO INDIAN RS. 20,18,096/-. IT IS SEEN FR OM THE FOREIGN INWARD REMITTANCE ADVICE ISSUED BY THE BANK OF INDIA DATED 9-08-2007, JOHRI BAZAR, JAIPUR SHOWING THE GIFT WAS RECEIVED THROUGH BANKING CHANNEL. IT IS ALSO MENTIONED IN THE FOREIGN INWARD REMITTANCE ADVICE ABOUT THE PURPOSE OF REMITTANCE I.E. FOR PERSONAL GIFTS & D ONATIONS WHICH ITA NO. 988/JP/2015 SHRI VIRENDRA KUMAR BATRA VS. ITO , WARD- 7(3), JAI PUR . 6 INDICATES THAT THE MONEY WAS GIFTED THROUGH BANKING CHANNEL AND IT CANNOT BE DOUBTED. IT IS ALSO NOTED FROM THE RECORD S I.E. FIDELITY INVESTMENTS THAT MS. ANJU BATRA DHAIMAN HAD MADE WITHDRAWAL ON 7-08-2007 BY WAY OF WIRE TRANSFER TO BANK OF US $ 5 0,000/- (APB 10- 11) WHICH INDICATES THE GENUINENESS OF TRANSACTION S. IT IS ALSO NOTED FROM THE RECORDS THAT MS. ANJU BATRA DHAIMAN HAD RECEIV ED GIFT OF US $ 100,000/- ON 01-02-2000 AND OF US $ 50,000/- ON 6-0 8-207 FROM SHRI GEORGE W NOYES WHICH GIFTS WAS TREATED BY THE DONOR AS LOAN AND IT WAS SUBSEQUENTLY CONVERTED TO GIFT AND THIS TRANSACTION OF LOAN BETWEEN THE MS. ANJU BATRA DHAIMAN AND GEORGE W NOYES CAN BE SE EN FROM THE PROMISSORY NOTE DATED 6-08-2007 (APB 7). IT IS ALSO NOTED THAT THIS LOAN RENOUNCED BY MR. GEORGE W NOYES AND WAS CONVERTED I NTO A GIFT AND IT IS EVIDENT FROM THE COPY OF CONFIRMATION DATED 9-05-20 11 EXECUTED BY MR. GEORGE W NOYES DULY SWORN BEFORE NOTARY PUBLIC (APB 8). LOOKING INTO ALL THE FACTS, CIRCUMSTANCES OF THE CASE AND DOCUME NTS PRODUCED DURING THE COURSE OF HEARING BEFORE THE BENCH AND ALSO TH E CASE LAWS CITED (SUPRA), I DO NOT CONCUR WITH THE FINDINGS OF THE L D. CIT(A) ON THIS ISSUE CONFIRMING THE ADDITION OF RS. 20,18,096/- U/S 68 O F THE ACT IN THE HANDS OF THE ASSESSEE. HENCE, THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 988/JP/2015 SHRI VIRENDRA KUMAR BATRA VS. ITO , WARD- 7(3), JAI PUR . 7 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8/11/2016 . SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08/11/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VIRENDRA KUMAR BATRA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 7(3), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 988/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR