The ACIT, Central Circle-2(2), Ahmedabad V. Mohammed Mohsin Rajabali Dosani L/h of late Rajabali Dosani, Ahmedabad

ITSSA 250/AHD/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0172 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-07-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 15-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER IT(SS)A NO.250/AHD/2010 A.Y.2003-04 DCIT, CENTRAL CIRCLE 2(2) AHMEDABAD. VS LATE SHRI RAJABALI DOSANI, THROUGH L/H MOHAMMAD MOHSIN DOSANI, 18A & 18B, 19, SAMIRVIHAR CO-OP. SOCIETY, BH. GUJARAT AGRO PETROL PUMP, JUAHAPURA, SARKHEJ RD. AHMEDABAD. PAN: AEBPD 5768D (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SUBHASH BAINS, CIT- D.R., ASSESSEE(S) BY : SHRI TUSHAR P. HEMANI, A.R. / // / DATE OF HEARING : 14/07/2014 / DATE OF PRONOUNCEMENT: 25/07/2014 / O R D E R SHRI MUKUL KUMAR SHRAWAT (JUDICIAL MEMBER) THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM AN ORDER OF THE LD. CIT(A)-III, AHMEDABAD, DATED 31.12.2009. THE RE VENUE HAS RAISED THE GROUND IN RESPECT OF DELETION OF AN ADDITION OF RS.17,50,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED GIFT. 2. FACTS IN BRIEF AS EMERGED FROM THE ASSESSMENT OR DER PASSED U/S.153A R.W.S. 143(3) OF IT ACT, DATED 29.12.2008 WERE THAT IT(SS)A NO.250/AHD/2010 DCIT, AHMEDABAD VS. LATE SHRI RAJABAIL DOSANI L/H S HRI MOHD. MOHSIN DOSANI FOR A.Y. 2003-04 - 2 - CONSEQUENCE UPON A SEARCH ON DOSANI GROUP DATED 4 TH AUGUST, 2006 AN ACTION WAS TAKEN AGAINST THE ASSESSEE. IT WAS FOUND THAT THE ASSESSEE HAD SHOWN A GIFT OF RS.17,50,000/-, CLAIMED TO HAVE BEE N RECEIVED FROM ONE SMT. AMIRBANU BHOJANI, SISTER-IN-LAW (WIFES SISTER ). AT THE TIME OF ASSESSMENT A CONFIRMATION FROM THE DONOR WAS FILED. THE AO HAS HELD THAT THE DONOR BEING AN AGED LADY HAVING NO SOURCE OF INCOME COULD NOT HAVE GIFTED THE AMOUNT. ACCORDING TO AO, THE ASSESS EE HAD INTRODUCED HIS OWN UNDISCLOSED INCOME BY USING THE NAME OF POO R AND GULLIBLE RELATIVES AS A TOOL FOR LAUNDERING HIS UNACCOUNTED MONEY. FINALLY, THE GIFTED AMOUNT WAS TAXED IN THE HANDS OF THE ASSESSE E. THE MATTER WAS CARRIED BEFORE LEARNED CIT(A). 3. BEFORE LEARNED CIT(A), THE ASSESSEE HAS REITERAT ED AS FOLLOWS: 4. BEFORE ME, IT WAS SUBMITTED THAT THE DONOR AMIR BANU, BRITISH CITIZEN, WAS A CLOSE RELATIVE. IN THE CONFIRMATION LETTER FILED BEFORE THE AO, IT HAD BEEN SPECIFIED THAT SHE WAS IN U.K. FOR 40 YEARS AND HAS THREE SONS AND A DAUGHTER, WHO WERE ALL DOCTORS. SHE HAD CONFIRMED THE GIFT OF RS.17.50 LAKHS GIVEN TO THE APPELLANT, HER BROTHER-IN-LAW, AS PER THE FOLLO WING DETAILS: A) RS.5.00 LACS(FIVE LACS) VIDE CHEQUE NO.236967 DT . 1.1.2003 B) RS.5.00 LACS(FIVE LACS) VIDE CHEQUE NO.236969 DT . 4.1.2003 C) RS.5.00 LACS(FIVE LACS) VIDE CHEQUE NO.236972 DT . 9.1.2003 D) RS.2.500 LACS(TWO LACS FIFTY THOUSAND) VIDE CHEQ UE NO.236975 DT.31.1.2003 . 5. THESE AMOUNTS WERE GIVEN OUT OF HER INDIVIDUAL N RE ACCOUNT IN THE UNION BANK OF INDIA, OUT OF THE FUNDS OF RS. 56.02 LAKHS DEPOSITED IN THIS ACCOUNT, IN FOREIGN CURRENCY IN NOVEMBER, 2002. A COPY OF THE BANK ACCOUNT AND COPY OF BANK PASS BOOK, REVEALING THE ENCASHMEN T OF THE AFOREMENTIONED CHEQUES IN SUPPORT OF ABOVE CONTENTIONS WERE FILED. IT WAS ARGUED THAT THE DONOR HAD ADEQUATE FINANCIAL CAPABILITY AND HAD MAD E GIFTS OUT OF HER NRE ACCOUNT. THE AO WITHOUT SEEKING DETAILS AND/OR BRIN GING ON RECORD, ANY EVIDENCE TO THE CONTRARY, HAD SIMPLY STATED THAT IT WAS ASSESSEE'S UNDISCLOSED INCOME INTRODUCED IN ACCOUNT OF THE DONOR. ADDITION MADE ON SUCH A SURMISE, WAS THEREFORE NOT SUSTAINABLE. IT(SS)A NO.250/AHD/2010 DCIT, AHMEDABAD VS. LATE SHRI RAJABAIL DOSANI L/H S HRI MOHD. MOHSIN DOSANI FOR A.Y. 2003-04 - 3 - 3.1 AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESS EE, LEARNED CIT(A) HAS REVERSED THE ACTION OF THE AO IN THE FOLLOWING MANNER: 6. THE CONTENTIONS WERE CAREFULLY CONSIDERED. IT I S SEEN FROM THE COPY OF PASS BOOK THAT THE DONOR, MS. AMIRBANU WAS A BRITISH CIT IZEN AND THE COPY OF HER NRE ACCOUNT NO.8631 IN UNION BANK OF INDIA, RELIEF ROAD, AHMEDABAD ALSO CONTAINED HER ADDRESSES IN U.K. THERE IS NO EVIDENC E ON RECORD THAT THIS WAS AN INSTANCE OF CHEQUE BADLI/HAWALA BY THE APPELLANT . THUS THE ADDITIONS MADE BY THE AO, WERE BASED ONLY ON A SURMISE AND CANNOT BE UPHELD. THE ADDITION MADE BY THE AO IS THEREFORE, DELETED. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES A ND AFTER CONSIDERING ALL THE EVIDENCES PLACED IN THE COMPILA TION, NAMELY, A CERTIFICATE OF THE BANK, COPY OF PASSPORT, COPY OF BANK STATEMENT OF THE DONOR AND CONFIRMATION ETC., WE HEREBY HOLD THAT IN A SITUATION WHEN THE DONOR WAS A RESIDENT OF UK FOR 40 YEARS HAVING SONS AND DAUGHTERS IN THE MEDICAL PROFESSION AND THE GIFT WAS MADE THROUGH CH EQUE OUT OF HER NRE ACCOUNT, THEREFORE, LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION. RESULTANTLY, WE FIND NO FORCE IN THIS GROUND OF THE REVENUE AS THE SAME IS DISMISSED. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. SD/- SD/- (ANIL CHATURVEDI) (MUK UL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/07/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD IT(SS)A NO.250/AHD/2010 DCIT, AHMEDABAD VS. LATE SHRI RAJABAIL DOSANI L/H S HRI MOHD. MOHSIN DOSANI FOR A.Y. 2003-04 - 4 - 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD