The DCIT, Central Circle-4, Surat V. Shri Kantibhai G.Patel, Surat

ITSSA 574/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0656 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 21-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: HARDIK VOHRA
• Keywords: Unexplained cash credit; Gift

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER IT(SS)A NO. 574/AHD/2011 / ASSESSMENT YEAR: 2008-09 DCIT CENTRAL CIRCLE-4, SURAT SHRI KANTIBHAI G. PATEL LG-3, BELOW ABN AMRO BANK, GHOD DOD ROAD, SURAT PAN : ABAPP 0139 N IT(SS)A NO. 575/AHD/2011 / ASSESSMENT YEAR: 2008-09 DCIT CENTRAL CIRCLE-4, SURAT SHRI KALPESH K. PATEL LG-3, BELOW ABN AMRO BANK, GHOD DOD ROAD, SURAT PAN : ABCPP 9335 L / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI B.L. YADAV, SR. DR ASSESSEE(S) BY : SHRI HARDIK VOHRA, AR !'# $ !'# $ !'# $ !'# $ %& %& %& %& / DATE OF HEARING : 11/05/2015 '( $ %& / // / DATE OF PRONOUNCEMENT: 13/05/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST TWO SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)- II, AHMEDABAD, BOTH DATED 09.08.2011 FOR ASSESSMENT YEAR 2008-09 OF TWO DIFFERENT ASSESSEES. IT(SS)A NO. 574/AHD/2011 REVENUES APPEAL IN THE CASE OF SHRI KANTIBHAI G. PATEL FOR ASSESSMENT YEAR 2008-09 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE READS AS UNDER:- IT(SS)A NOS.574 & 575 AHD 2011 SHRI KANTIBHAI G. PATEL/ KALPESH K PATEL AY: 2008-09 2 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION OF RS.23,75,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. DURING THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE HAS CLAIMED TO HAVE BEE N RECEIVED GIFT OF RS.23,75,000/- FROM SMT. BINABEN PATEL THROUGH NRE ACCOUNT. THE ASSESSING OFFICER CONSIDERED THE GIFT TO BE UNEXPLA INED CASH CREDIT AND MADE THE ADDITION OF RS.23,75,000/-. ON APPEAL, TH E CIT(A) DELETED THE ADDITION WITH THE FOLLOWING FINDINGS:- 7. I HAVE CONSIDERED THE FACTS OF THE CASE, THE FI NDING OF THE A.O. IN THE ASSESSMENT ORDER AND THE REMAND REPORT AND THE SUBM ISSIONS OF THE APPELLANT. FROM THE FINDINGS OF THE A.O. IN THE REM AND REPORT, IT IS SEEN THAT AFTER VERIFYING THE RATION CARD AND BIRTH CERT IFICATE OF THE DONOR, THE A.O. ACCEPTS THAT THE DONOR SMT. BINABEN PATEL IS THE DA UGHTER OF THE APPELLANT. THUS, THE BLOOD RELATION BETWEEN THE APPELLANT AND THE DONOR STANDS ACCEPTED BY THE A.O. AS BEING FATHER AND DAUGHTER. THE A.O. IN THE REMAND REPORT HAS ALSO HELD THAT THE COPY OF THE CREDIT ADVICE AS ISSUED BY THE ROYAL BANK OF SCOTLAND IN THE NAME OF SHRI HITESH V. PATEL AND SM T. BINABEN H. PATEL SHOWS THAT THE TRANSFER OF INDIAN RUPEES OF RS.88,0 8,800/- IN THE NRE ACCOUNT OF THE DONOR IS FROM THE ACCOUNT OF THEIR F OREIGN COMPANY VIZ. FAIR PHARM LTD. HAVING OFFICE IN U.K. AND FROM THIS NRE ACCOUNT THE CHEQUE FOR GIFT HAS BEEN ISSUED TO THE APPELLANT AND THUS, THE GENUINENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE DONOR A LSO STANDS ACCEPTED BY THE A.O. IN THE REMAND REPORT. FROM THE ABOVE, IT IS SEEN THAT THE APPELLANT HAS B EEN ABLE TO SHOW THAT THE GIFT OF RS. 23,75,000/- RECEIVED BY HIM IS FROM THE NRE ACCOUNT OF HIS DAUGHTER SMT. BINABEN PATEL AND THE FUNDS THEREIN W ERE RECEIVED FROM THE FOREIGN COMPANY OF THE DONOR IN UK. THEREFORE, THE APPELLANT HAS BEEN ABLE TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE DONOR AND THE GENUINENESS OF THE TRANSACTION. THE BLOOD RELATION WITH THE DON OR HAS ALSO BEEN ESTABLISHED. THUS, THE ADDITION FOR GIFT OF RS.23,7 5,000/- AS MADE BY THE A.O. IS HEREBY DELETED. 4. AT THE TIME OF HEARING BEFORE US, THE LD. CIT-D R RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND HE SUBMITTED THAT BEFO RE THE ASSESSING OFFICER IT(SS)A NOS.574 & 575 AHD 2011 SHRI KANTIBHAI G. PATEL/ KALPESH K PATEL AY: 2008-09 3 THE ASSESSEE COULD NOT ESTABLISH EITHER THE CREDITW ORTHINESS OF THE DONOR OR THE RELATIONSHIP BETWEEN THE ASSESSEE AND THE DONOR . THEREFORE, THE ASSESSING OFFICER WAS FULLY JUSTIFIED IN MAKING THE ADDITION OF RS.23,75,000/-. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) SHOULD BE REVERSED AND THAT OF THE ASSESSING OFFICER MAY B E RESTORED. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DONOR IS THE DAUGHTER OF THE ASSESSEE AND SHE IS RESIDING IN UK. THE GIFT HAS BEEN GIVEN FROM HER NRE ACCOUNT IN WHICH SHE HAD TRANSFERRED T HE SUM OF RS.88,08,800/- WHICH IS MANY TIMES MORE THAN THE AM OUNT GIFTED TO THE ASSESSEE. ALL THE RELEVANT EVIDENCES WERE PRODUCED BEFORE THE CIT(A) DURING THE APPELLATE PROCEEDINGS; HE CALLED FOR TH E REMAND REPORT AND AFTER CONSIDERING THE SAME, ACCEPTED THE GIFT. HE, THEREF ORE, SUBMITTED THAT THE ORDER OF THE CIT(A) SHOULD BE SUSTAINED. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AFTER CONSI DERING THE FACTS OF THE CASE AND ARGUMENTS OF BOTH THE SIDES, WE DO NOT FIN D ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CIT(A). IN THE ASSE SSMENT PROCEEDINGS, THE ASSESSEE DID NOT TELL EVEN THE RELATIONSHIP BETWEEN THE DONOR & DONEE AND ALSO DID NOT PRODUCE SUFFICIENT EVIDENCE TO ESTABLI SH THE CREDITWORTHINESS OF THE DONOR. HOWEVER, NOW IT IS UNDISPUTED FACT THAT THE DONOR AND DONEE ARE THE FATHER AND DAUGHTER. THE DONOR IS RESIDING IN UK AND SHE HAD SENT A SUM OF RS.88,08,800/- FROM HER BANK ACCOUNT IN UK T O HER NRE ACCOUNT FROM WHICH THE GIFT IS GIVEN TO THE ASSESSEE. DURI NG THE REMAND PROCEEDINGS, THE ASSESSING OFFICER HAS VERIFIED THE CREDIT ADVICE ISSUED BY THE ROYAL BANK OF SCOTLAND BY WHICH THE SUM OF RS.8 8,08,800/- WAS TRANSFERRED IN HER NRE ACCOUNT. AFTER CONSIDERING ALL THE FACTS, WE DO NOT IT(SS)A NOS.574 & 575 AHD 2011 SHRI KANTIBHAI G. PATEL/ KALPESH K PATEL AY: 2008-09 4 FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CIT(A) WHICH IS SUSTAINED AND THE REVENUES APPEAL IS DISMISSED. IT(SS)A NO. 575/AHD/2011 REVENUES APPEAL IN THE CASE OF SHRI KALPESH K. PATEL FOR ASSESSMENT YEAR 2008-09 7. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE READS AS UNDER:- THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION OF RS.32,50,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT. 8. AT THE TIME OF HEARING BEFORE US, BOTH THE PARTI ES HAD ADMITTED THAT THE FACTS OF THE CASE OF THE ASSESSEE AND SHRI KANT IBHAI G. PATEL ARE ALMOST IDENTICAL, EXCEPT WITH ONLY ONE VARIATION THAT KANT IBHAI G. PATEL IS FATHER OF SMT. BINABEN PATEL AND KALPESH K PATEL IS THE BROTH ER OF SMT. BINABEN PATEL. THIS DONOR AND DONEE ARE REAL BROTHER AND SISTER. THE GIFT HAS BEEN GIVEN FROM NRE ACCOUNT IN WHICH RS.88,08,800/- WAS TRANSF ERRED FROM UK THROUGH ROYAL BANK OF SCOTLAND. THE FACTS BEING ID ENTICAL, FOR THE DETAILED DISCUSSION IN THE CASE OF SHRI KANTIBHAI G. PATEL, WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THE REVENUES APPEAL. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 13 TH MAY, 2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 13/05/2015 BIJU T., PS IT(SS)A NOS.574 & 575 AHD 2011 SHRI KANTIBHAI G. PATEL/ KALPESH K PATEL AY: 2008-09 5 )* $ %+ ,)+% )* $ %+ ,)+% )* $ %+ ,)+% )* $ %+ ,)+%/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. !-- % '. / CONCERNED CIT 4. '. ( ) / THE CIT(A) 5. +12 % , , / DR, ITAT, AHMEDABAD 6. 2 3# / GUARD FILE . )*'! )*'! )*'! )*'! / BY ORDER, TRUE COPY 4 44 4/ // /! ! ! ! -5 -5 -5 -5 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD