Smt. Ritaben Sanjay Thakkar, Ahmedabad V. The Dy.CIT.,Cent.Circle-1(1), Ahmedabad

ITSSA 137/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1067 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 28-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 18-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: VIJAY RANJAN
• Keywords: Gift
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. IT(SS)A. NOS. 136 & 137/AHD/2011 (ASSESSMENT YEARS:2004-05 & 2005-06) SMT. RITABEN SANJAY THAKKAR DEVNANDAN PALACE, OPP. J. P. FARM, AMBALI BOPAL ROAD, AHMEDABAD APPELLANT VS. DCIT, CENTRAL CIRCLE 1(1), AHMEDABAD RESPONDENT / BY ASSESSEE : SHRI VIJAY RANJAN, A.R. / BY REVENUE : SHRI SANJAY AGRAWAL, CIT.D.R. /DATE OF HEARING : 29.10.2015 /DATE OF PRONOUNCEMENT : 06.11.2015 ORDER PER S. S. GODARA, JUDICIAL MEMBER THESE TWO ASSESSEES APPEALS FOR ASSESSMENT YEAR 2004-05 & 05-06, ARISE FROM ORDERS OF THE CIT(A) - I, AHMED ABAD, DATED 16.12.2010 PASSED IN PROCEEDINGS U/S.153A(B) & 143( 3) OF THE INCOME TAX ACT, 1961, HEREINAFTER THE ACT RESPECT IVELY. IT(SS)A NOS.136 & 137/AHD/2011 (SMT. RITABEN S. THA KKAR VS. DC IT) A.Y. 2004-05 & 2005-06 - 2 - 2. THE COMBINED PERUSAL OF CASE FILE REVEALS THAT T HE ASSESSEE CHALLENGES TWO SUBSTANTIVE ADDITIONS OF FIXED DEPOS ITS AMOUNTING TO RS.41,394/- AND CREDITS IN CAPITAL ACCOUNT OF RS .4,25,275/- IN A.Y. 2004-05 INVOLVING IT(SS)A NO. 136/AHD/2011. T HE LATTER ADDITION COMPRISES OF GIFT ADDITION OF RS.4,00,538/ - AND AN AMOUNT OF RS.24,737/- ARISING FROM SALE OF JEWELLER Y. THE LATTER A.Y.2005-06 INVOLVING IT(SS)A NO. 137/AHD/11 RAISES TWO IDENTICAL GROUNDS CHALLENGING ADDITIONS OF FDR AMOU NTS OF RS.83,136/- AND CREDITS IN CAPITAL ACCOUNT OF RS.4, 11,622/- (COMPRISING OF GIFT CLAIM OF RS.2,81,182/- AND A LO AN SUM OF RS.1,30,440/-). 3. WE COME TO COMMON FACTUAL BACKGROUND OF THESE TW O CASES. THE ASSESSEE INDIVIDUAL DERIVES INCOME FROM SHARE B USINESS, SALARY AND RENT. SHE FILE HER RETURN OF INCOME ON 03.08.2004 DISCLOSING A SUM OF RS.98,200/-. THE DEPARTMENT CO NDUCTED A SEARCH AT HER RESIDENCE AS WELL AS LOCKERS MAINTAIN ED WITH THE MAHILA VIKASH CO-OP. BANK LTD., VASNA, AHMEDABAD AL ONG WITH M/S. DHRAMDEV BUILDERS GROUP OF CASES ON 09.02.2005 . THE SAME CULMINATE IN INITIATION OF SECTION 153A PROCEE DINGS. THE ASSESSEE FILED HER POST SEARCH RETURN ON 13.10.2006 REITERATING THE INCOME ALREADY RETURNED. HER LATTER A.Y. RETUR N STOOD FILED ON 31.03.2006 SHOWING INCOME OF RS.1,59,550/-. THE AS SESSING OFFICER COMPLETED REGULAR ASSESSMENTS IN BOTH YEARS ON 29.12.2006 INTER ALIA MAKING THE ABOVE STATED ADDIT IONS. THE ASSESSEES APPEALS FILED BEFORE THE CIT(A) HAVE BEE N DISMISSED. THIS LEAVES HER AGGRIEVED. IT(SS)A NOS.136 & 137/AHD/2011 (SMT. RITABEN S. THA KKAR VS. DC IT) A.Y. 2004-05 & 2005-06 - 3 - 4. WE TAKE UP FIRST GROUND OF FDR ADDITION RS.41,39 4/- IN A.Y. 2004-05. THE ASSESSEE CLAIMED THE SAME TO HAVE BEE N MADE FROM PAST SAVINGS OF HERSELF AND HER HUSBAND. THE ASSESSING OFFICER POINTED OUT VARIOUS INCONSISTENCIES IN HER EXPLANATION RAISING DOUBTS OF GENUINENESS THEREIN. HE WOULD OB SERVE THAT NO EXACT SOURCE OF THESE INVESTMENTS WAS FORTHCOMING. ASSESSEES HOUSEHOLDS WITHDRAWALS WERE ALREADY HELD TO BE VERY LOW SO AS TO MAKE ADEQUATE CASH AVAILABLE FOR INVESTING THE SAME IN THESE FDRS ACCOUNTS. HE ACCORDINGLY INFERRED THAT THE AS SESSEE HAD PURCHASED FDRS OUT OF HER UNDISCLOSED INCOME NOT RE CORDED IN BOOKS OF ACCOUNT. THIS WOULD MAKE HIM INVOKE SECTI ON 69B OF THE ACT RESULTING IN THE IMPUGNED ADDITION. THE CI T(A) UPHOLDS THIS REASONING. 5. WE PROCEED FURTHER AND FIND THAT THERE IS ONE MO RE ADDITION OF RS.24,737/- MADE BY BOTH THE LOWER AUTHORITIES I N A.Y. 2004- 05 REJECTING ASSESSEES EXPLANATION ATTRIBUTING ITS SOURCE TO SALE OF JEWELLERY. WE NOTICE FROM CIT(A) S ORDER PARA 4.1 THAT THE ASSESSEE HAD FURNISHED COPY OF A SALE BILL OF JEWE LLERY FROM M/S. SWASTIK JEWELLERS DATED 14.12.2004. SHE STATED TO HAVE RECEIVED THE AMOUNT IN QUESTION BY CHEQUE. THE CIT(A) SIMPL Y REJECTS THIS PLEA WITHOUT GIVING ANY REASON. THE ASSESSEE SUBMI TS BEFORE US THAT THIS SALE BILL ALREADY FORMS PART OF THE CASE RECORD BEFORE US. THE REVENUE FAILS IN POINTING OUT ANY INCONSISTENCY THEREIN. WE ACCEPT THIS ASSESSEES PLEA QUA THE SUM IN QUESTION OF RS.24,737/-. THIS MAKES US TO APPLY TELESCOPING OF THIS SALE OF JEWELLERY AMOUNT AS LEADING TO HER INVESTMENT IN FDRS TO THE IT(SS)A NOS.136 & 137/AHD/2011 (SMT. RITABEN S. THA KKAR VS. DC IT) A.Y. 2004-05 & 2005-06 - 4 - TUNE OF THE VERY SUM. THE FDRS ADDITION EXCESS AMO UNT OF RS.16,657/- I.E. RS.41,314 - RS.24,737/- IN A.Y. 20 04-05 IS ACCORDINGLY CONFIRMED. THIS GROUND IS TREATED AS P ARTY ALLOWED. 6. WE COME TO ASSESSEES SECOND SUBSTANTIVE GROUND CHALLENGING ADDITION OF RS.4,00,538/- CLAIMED AS GI FT. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD SHO WN THE IMPUGNED GIFT IN CAPITAL ACCOUNT AS RECEIVED FROM O NE SHRI R. P. SHAH. SHE FAILED IN PROVING IDENTITY, CAPACITY, GEN UINENESS/ CREDITWORTHINESS OF THIS DONOR. THERE WAS NO CONFI RMATION FILED. SHE SEEMS TO HAVE HEAVILY RELIED UPON THE FACT THAT THIS GIFT SUM WAS RECEIVED BY WAY OF BANKING CHANNEL ON FIRST UNI ON NATIONAL BANK OF INDIA, NEW YORK. THERE WAS NO EVIDENCE LEA D IN SUPPORT OF THE CLAIM EVEN BY WAY OF CONFIRMATION OF THE DON OR IN THE INSTANT CASE. BOTH THE LOWER AUTHORITIES REJECTED HER EXPLANATION. 7. THE ASSESSEE STRONGLY ARGUED IN THE COURSE OF HEA RING BEFORE US THAT SHE HAS SUCCEEDED IN PENALTY PROCEEDINGS AS HER EXPLANATION SUPPORTING GIFT CLAIM STANDS ACCEPTED. THE SAME FAILS TO IMPRESS UPON US. WE REITERATE THE RELEVAN T FACTS NARRATED IN PRECEDING PARAGRAPH AND HOLD THAT MERE BANKING C HANNEL BEING ADOPTED FOR RECEIVING THE ALLEGED GIFT WITHOU T ANY SUPPORTIVE EVIDENCE NOT EVEN CONFIRMATION ON DONORS PART DOES NOT DISCHARGE HER ONUS OF PROVING IDENTITY FOLLOWED BY GENUINENESS AND CREDITWORTHINESS OF THE CLAIM. WE ARE ALSO OF THE VIEW THAT DECISION IN PENALTY CASE DOES NOT IMPACT OUTCOME OF QUANTUM PROCEEDING. WE ACCORDINGLY UPHOLD LOWER AUTHORITIE S ACTION IN ADDING THE IMPUGNED GIFT SUM OF RS.4,00,538/-. IT(S S)A NO.136/AHD/2011 IS PARTLY ACCEPTED. IT(SS)A NOS.136 & 137/AHD/2011 (SMT. RITABEN S. THA KKAR VS. DC IT) A.Y. 2004-05 & 2005-06 - 5 - 8. WE COME TO A.Y.2005-06 INVOLVING IT(SS)A NO.137/AHD/2011. FIRST SUBSTANTIVE GROUND CHALLENG ES FDR ADDITION OF RS.83,136/-. THERE IS NO CONFIRMATION OF ITS SOURCE FORTHCOMING FROM THE CASE FILE RIGHT FROM SEARCH TI LL DATE. THIS GROUND IS REJECTED. THIS LEAVES US WITH THE SECOND SUBSTANTIVE GROUND CHALLENGING ADDITION OF RS.4,11,622/- COMPRI SING OF A GIFT CLAIM OF RS.2,81,182/- FROM ALLEGED DONOR SMT. VANI TABEN PATEL AND A LOAN AMOUNT OF RS.1,30,449/- FROM SMT. BELABE N THAKKAR. THE ASSESSEE STATED IN THE COURSE OF ASSESSMENT THA T BOTH OF THEM WERE HER COUSIN SISTERS HAVING GIFTED THE IMPU GNED SUMS OUT OF LOVE AND AFFECTION THROUGH ACCOUNT PAYEE CHE QUES. THE ASSESSING OFFICER QUOTED LACK OF DETAILS ON PART OF DONORS IN FILING NECESSARY CONFIRMATIONS, PAN CARDS, SOURCE OF THEIR INCOME ETC. NOTHING CAME OUT AT ASSESSEES BEHEST. HE ACCORDIN GLY MADE THE IMPUGNED ADDITION. THERE IS NO DISPUTE THAT THE SA ME FACTUAL POSITION CONTINUED IN THE LOWER APPELLATE PROCEEDIN GS. 9. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THE ASSESSEE FAILS IN FILING CONFIRMA TION FOLLOWED BY IDENTITY, GENUINENESS AND CREDITWORTHINESS OF HER D ONORS IN SUPPORT OF HER GIFT CLAIMS. SHE PLACES ON RECORD C IT(A)S ORDER IN PENALTY PROCEEDINGS ACCEPTING HER ARGUMENTS. WE AD OPT OUR REASONING AS IN PRECEDING ASSESSMENT YEAR HEREINABO VE AND HOLD THAT FIRST OF ALL, THE LD. CIT(A) HAS NOT ACCEPTED HER CLAIM ON MERITS. THE SECOND REASON IS THAT FINDINGS IN ASSE SSMENT BOUND OUTCOME OF PENALTY PROCEEDINGS IF AN ASSESSEE SUCCE EDS IN FORMER ROUND AND NOT VICE VERSA. NO SUPPORTIVE EVIDENCE I S PRODUCED BEFORE US TO DISPEL THE LOWER AUTHORITIES FINDING REJECTING HER GIFT IT(SS)A NOS.136 & 137/AHD/2011 (SMT. RITABEN S. THA KKAR VS. DC IT) A.Y. 2004-05 & 2005-06 - 6 - CLAIM. THIS ADDITION AMOUNT OF RS.4,11,622/- IS AC CORDINGLY CONFIRMED. IT(SS)A NO.137/AHD/2011 IS DISMISSED. 10. WE ACCORDINGLY PARTLY ALLOW ASSESSEES FORMER AP PEAL IT(SS)A NO.136/AHD/2011 AND DISMISS IT(SS)A NO.137/AHD/2011 . PRONOUNCED IN THE OPEN COURT ON THIS THE 06 TH DAY OF NOVEMBER, 2015. SD/- SD/- (PRAMOD KUMAR) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 06/11/2015 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 4 5 / GUARD FILE. BY ORDER / . // . /0