Alkaben M. Rachh, RAJKOT-GUJARAT V. The Income Tax Officer (OSD), Range-1, RAJKOT-GUJARAT

MA 22/RJT/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0701 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-06-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 14-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH: RAJKOT BEFORE SHRI T K SHARMA, JM AND SHRI D K SRIVASTAVA, AM M. A . NO . 22 /RJ T/2013 (ARIS I N G OUT OF ORDER IN ITA NO. 46 /RJT/201 2 ) ASSESSMENT YEAR 200 5 - 0 6 SMT ALKABEN MUKESHBHAI RACHCHH V. ITO, WARD - 1(2), RAJKOT CHANDERPUR ROAD, WANKANER, RAJKOT PAN: AEWPR 8689 A ITA NO . 46/RJT/2012 ASSESSMENT YEAR 2005 - 06 SMT ALKABEN MUKESHBHAI RACHCHH V. ITO (OSD), RANGE - 1, RAJKOT M. A . NO . 23/RJT/2013 (ARISING OUT OF ORDER IN ITA NO S . 44 & 45 /RJT/2012) ASSESSME NT YEAR 2004 - 05 AND 2005 - 06 SHRI MUKESHBHAI G. RACHCHH V. ITO, WARD - 1(2), RAJKOT PROP. SHREENATHJI INDUSTRIES, CHANDERPUR ROAD, WANKANER, RAJKOT PAN: ABXPR 3061 L ITA NO S. 44 & 45/RJT/2013 ASSESSMENT YEAR 2004 - 05 AND 2005 - 06 SHRI MUKESHBHAI G. RACHCHH V. ITO, WARD - 1(2), RAJKOT DATE OF HEARING : 21 .0 6 .2013 DATE OF PRONOUNCEMENT : 10 . 0 7 . 2013 FOR THE APPLICANT - ASSESSEE: SHRI SAMIR BHUPTANI, CA FOR THE REVENUE : SHRI M K SINGH, DR ORDER D. K. SRIVASTAVA : SHRI MUKESHBHAI G. RACH CHH BEING THE APPLICANT - ASSESSEE IN MA NO.23/RJT/2013 AND APPELLANT - ASSESSEE IN ITA NOS. 44 & 45/RJT/2012 AND SMT ALKABEN MUKESHBHAI RACHCHH BEING THE APPLICANT - ASSESSEE IN MA NO.22/RJT/2013 AND APPELLANT - ASSESSEE IN ITA NO.46/RJT/2012 ARE HUSBAND AND WIFE RESPECTIVELY. WHILE SHRI MUKESHBHAI G. RACHCHH CLAIMS TO HAVE RECEIVED GIFT OF RS.5,00,000/ - IN ASSESSMENT YEAR 2004 - 05 AND ANOTHER GIFT OF SAME AMOUNT, I.E., RS.5,00,000/ - IN THE ASSESSMENT YEAR 2005 - 06 , H IS WIFE SMT ALKABEN MUKESHBHAI RACHCHH ALSO CLAIM S TO HAVE RECEIVED GIFT OF RS.5,00,000/ - IN THE ASSESSMENT YEAR 2005 - 06. THE GIFTS SO CLAIMED TO HAVE BEEN RECEIVED BY BOTH THE ASSESSEES WERE CREDITED IN THEIR RESPECTIVE BOOKS OF ACCOUNTS. ON BEING CALLED UPON TO EXPLAIN THE NATURE AND SOURCE OF THE IMPU GNED CREDITS IN THEIR BOOKS OF ACCOUNT, BOTH THE ASSESSEES CLAIMED THAT THE IMPUGNED SUMS REPRESENT ED GIFTS RECEIVED BY THEM. NEITHER THE ASSESSING OFFICER NOR THE CIT(A) HAS ACCEPTED THE GENUINENESS OF THE 2 MA 22 & 23 - RJT - 2013 ITA NOS.44 - 46/RJT/2012 SMT ALKABEN & MUKESHBHAI RACHCHH GIFT S ALLEGEDLY RECEIVED BY THEM WITH THE RESULT THAT THE IMPUGNED SUMS STAND TAXED AS UNEXPLAINED INCOME IN THE HANDS OF BOTH THE ASSESSEES U/S 68 OF THE I - T ACT. 2. BOTH THE ASSESSEES FI LED APPEAL BEFORE THIS TRIBUNAL, WHICH WERE DISMISSED FOR WANT OF APPEARANCE BY BOTH THE ASSESSEES ON THE DATE FIXE D FOR HEARING. THEY HAVE NOW MOVED MISCELLANEOUS APPLICATION S (MA) FOR RECALLING THE COMMON ORDER PASSED BY THIS TRIBUNAL ON 05.10.2012 IN THEIR RESPECTIVE APPEALS. THE MAS WERE LISTED FOR HEARING ON 07.06.2013. ON 07.06.2013, THE HEARING WAS ADJOURNED AT THE REQUEST OF THE ASSESSEE. BOTH THE MAS CAME UP FOR HEARING ON 12.06.2013. BOTH THE ASSESSEES WERE DIRECTED TO COME FULLY PREPARED TO ARGUE THE MATTER ON MERITS ALSO P URSUANT TO WHICH TWO PAPER - BOOKS CONTAINING 78 PAGES AND 68 PAGES HAVE BEEN FILED. WITH THIS BACKGROUND IN VIEW, WE SHALL NOW PROCEED TO DISPOSE OF EACH OF THE MATTERS. WE SHALL FIRST DISPOSE OF THE MA FILED BY BOTH THE ASSESSEES. M. A . NO . 22/RJT/2013 (ARISING OUT OF ORDER IN ITA NO.46/RJT/2012): AY 2005 - 06 3. THE APPEAL BEARING ITA NO.46 /RJT/2012 FILED BY THE ASSESSEE WAS LISTED FOR HEARING ON 01.06.2012. ON 01.06.2012, THE H E ARING OF APPEAL WAS ADJOURNED TO 10.07.2012 AT THE REQUEST OF THE ASSESSEE. ON 10.07.2012, THE HEARING WAS AGAIN ADJOURNED TO 04.10.2012 AT THE REQUEST OF THE ASSESS EE. THE APPEAL CAME UP FOR HEARING ON 04.10.2012, BUT NOBODY ENTERED APPEARANCE ON BEHALF OF THE ASSESSEE. THE APPEAL FILED BY THE ASSESSEE WAS ACCORDINGLY DISPOSED OF EX - PARTE QUA THE ASSESSEE BY THIS TRIBUNAL ON 05.10.2012 . 4. IN THE MA FILED BY THE AS SESSEE, IT IS STATED THAT THERE WAS MISTAKE AND MISUNDERSTANDING ON THE PART OF THE LD AUTHORIZED REPRESENTATIVE IN TAKING DOWN THE NEXT DATE OF HEARING , I.E. , 04.10.2012 AND THAT IT WAS FOR THIS REASON THAT THE ASSESSEE WAS NOT REPRESENTED BEFORE THIS TRI BUNAL ON 04.10.2012. WE BELIEVE IN THE GENUINENESS OF THE STATEMENT OF THE LD . AUTHORIZED REPRESENTATIVE THAT THERE WAS MISTAKE ON HIS PART IN NOTING THE DATE ON WHICH THE APPEAL WAS ADJOURNED FOR HEARING. WE THEREFORE RECALL OUR ORDER DATED 05.10.2012 IN ITA NO.46/RJT/2012. THE AFORESAID APPEALS STAND RESTORED FOR A FRESH HEARING AND DISPOSAL. ITA NO. 46/RJT/2012: AY 2005 - 06 : APPEAL BY SMT. ALKABEN M RACHCHH 5. THE ONLY ISSUE RAISED BY THE ASSESSEE IN HER APPEAL IS THAT THE CIT(A) HAS ERRED IN CONFIRMIN G THE ADDITION MADE BY THE AO. AS STATED EARLIER, THE ASSESSEE 3 MA 22 & 23 - RJT - 2013 ITA NOS.44 - 46/RJT/2012 SMT ALKABEN & MUKESHBHAI RACHCHH WAS REQUESTED TO ARGUE THE APPEAL ON MERIT S P URSUANT TO WHICH THE ASSESSEE HAS FILED TWO PAPER - BOOKS CONTAINING 78 PAGES AND 65 PAGES. THESE PAPER - BOOKS ARE COMMON FOR BOTH THE ASSESSEES , NAMEL Y , SMT ALKABEN MUKESHBHAI RACHCHH AND SHRI MUKESH GIRDHARLAL RACHCHH. FACTS AVAILABLE ON RECORD SHOW THAT THE ASSESSEE IS A TRADER IN KAPAS AND COTTON. SHE FILED HER RETURN OF INCOME FOR THE YEAR UNDER APPEAL ON 31.07.2005 RETURNING TOTAL INCOME AT RS.1,40 ,210/ - AND AGRICULTUR AL INCOME AT RS.1,28,693/ - . DURING THE COURSE OF ASSESSMENT PROCEEDING S, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD CREDITED A SUM OF RS.5,00,000/ - IN HER BOOKS OF ACCOUNT. ON BEING CALLED UPON TO EXPLAIN THE NATURE AND SOURCE OF THE IMPUGNED CASH CREDIT, THE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER THAT THE SAID AMOUNT REPRESENTED THE GIFT RECEIVED FROM SMT . BHANUMATIBEN GIRDHARLAL SHINGALA (NRI) ON 14.08.2004. THE ASSESSEE ALSO SUBMITTED COPY OF GIFT DEED DULY SIGNED B Y THE DONOR, COPY OF GIFT CHEQUE, COPY OF PASSPORT OF THE DONOR AND CERTIFICATE FROM THE BANK FOR THE AMOUNT RECEIVED AS GIFT. THE ASSESSING OFFICER PROCEEDED TO RECORD THE STATEMENT OF THE ASSESSEE DURING WHICH THE ASSESSEE COULD NOT ANSWER QUESTIONS ON T HE ISSUES HAVING MATERIAL BEARING ON THE GENUINENESS OF THE GIFT RECEIVED BY HER. THESE FACTS ARE DULY DISCUSSED IN THE ASSESS MENT ORDER. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE NEITHER KN EW THE DONOR PERSONALLY NOR WAS SHE HER RELATIVE NOR WAS THE RE ANY OCCASION ON WHICH THE DONOR COULD GIFT HER SUCH HEFTY AMOUNT OF RS.5,00,000/ - . RELYING UPON THE JUDGMENT OF THIS TRIBUNAL IN D.C. RASTOGI (HUF) V. ACIT, 57 ITD 295 , THE ASSESSING OFFICER HELD THAT THE IMPUGNED GIFT WAS NOT GENUINE. 6. ON APPEAL, T HE LD CIT(A) HAS CONFIRMED THE ORDER PASSED BY THE ASSESSING OFFICER IN THIS BEHALF. HE ALSO RELIED UPON THE JUDGMENT OF THIS TRIBUNAL IN THE CASE OF DIN ESH BABULAL THAKKAR, 39 SOT 332. HE NOTICED THAT THE ASSESSEE AND HER HUSBAND HAVE BEEN CLAIMING TO HAV E RECEIVE D THE GIFTS NOT ONCE BUT THREE TIMES. HE ALSO NOTICED THAT THE ASSESSEE COULD NOT FILE EVEN A COPY OF BANK ACCOUNT OF THE DONOR TO ESTABLISH THE GENUINENESS OF GIFT. WHILE T HE ASSESSEE HAS FILED A CERTIFICATE FROM BANK THAT THE IMPUGNED GIFT WAS G IVEN BY CHEQUE, THE ASSESSING OFFICER NOTED THAT THE SAID CERTIFICATE WAS OF NO CONSEQUENCE UNLESS COMPLETE COPY OF THE BANK ACCO UNT OF THE DONOR WAS FURNISHED TO ENABLE THE REVENUE TO ESTABLISH AS TO WHETHER 4 MA 22 & 23 - RJT - 2013 ITA NOS.44 - 46/RJT/2012 SMT ALKABEN & MUKESHBHAI RACHCHH THE CORRESPONDING DEPOSITS WERE MADE EITHER IMM EDIATELY OR AFTER RECEIPT OF GIFT. HE ALSO NOTICED THAT THERE WAS NO OCCASION ON WHICH THE DONOR COULD MAKE HER A GIFT. HE FURTHER NOTED THAT THE DONOR WAS NOT PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER FOR EXAMINATION. CONSIDERING THE SURROUNDI NG CIRCUMSTANCES , PAST HISTORY OF CLAIM REGARDING THE RECEIPT OF GIFTS, ABSENCE OF RELATIONSHIP BETWEEN THE DONOR AND DONE E AND ALSO THE ABSENCE OF OCCASION ON WHICH THE GIFT COULD BE GIVEN , THE LD CIT(A) ALSO TOOK THE VIEW THAT THE CLAIM OF THE ASSESSEE R EGARDING RECEIPT OF GIFT WAS NOT GENUINE. IT IS IN THIS BACKGROUND THAT THE LD CIT(A) HAS CONFIRMED THE ORDER PASSED BY THE ASSESSING OFFICER. 7. THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. HE HAS RELIED UPON SIMILAR SUBMISSIONS AS WERE MADE BEFO RE THE LD CIT(A). HE HAS FILED A LONG LIST OF JUDICIAL AUTHORITIES TO SUPPORT HIS CASE. 8. IN REPLY, THE LD DEPARTMENTAL REPRES ENTATIVE SUPPORTED THE ORDER PASSED BY THE LD CIT(A). 9. WE HAVE HEARD BOTH THE PARTIES. IT IS ESSENTIALLY A QUESTION OF FACT AS TO WHETHER A PARTICULAR GIFT IS GENUINE OR NOT . SIMILARLY, THE ISSUE AS TO WHETHER THE ASSESSEE HAS BEEN ABLE TO SATISFACTORILY EXPLAIN THE NATURE AND SOURCE OF CREDIT ENTRIES FOUND RECORDED IN HIS BOOKS IS ALSO A QUESTION OF FACT. JUDICIAL DECISIONS HE LP US IN UNDERSTANDING THE LEGAL POSITION. WE HAVE PERUSED ALL THE JUDGMENTS CITED BY THE ASSESSEE IN HER PAPER - BOOK AND TAKEN NOTE OF THE PRINCIPLES EMERGING FROM THEM. THE FACT OF THE MATTER, HOWEVER, IS THAT THE ISSUE WITH REGARD TO GENUINENESS OF GIFT IS ESSENTIALLY A QUESTION OF FACT. 10. WE HAVE CAREFULLY GONE THROUGH THE FINDINGS RECORDED BY THE ASSESSING OFFICER AND THE LD CIT(A). BOTH THE AUTHORITIES HAVE CONCURRENTLY RECORDED FINDINGS OF FACTS THAT THE IMPUGNED GIFT IS NOT GENUINE. THEY HAVE TA KEN INTO ACCOUNT THE SURROUNDING CIRCUMSTANCES, FREQUENCY OF GIFTS CLAIMED BY BOTH OF THEM TO HAVE BEEN RECEIVED IN THE PAST, ABSENCE OF RELATIONSHIP BETWEEN DONOR AND DONEE, ABSENCE OF OCCASION ON WHICH THE GIFT COULD BE GIVEN , ETC . IN OUR CONSIDERED VIEW , THE IMP UGNED GIFT CANNOT BE SAID TO BE GENUINE ON THE FACTS OF THE CASE. WE DO NOT SEE ANY VALID 5 MA 22 & 23 - RJT - 2013 ITA NOS.44 - 46/RJT/2012 SMT ALKABEN & MUKESHBHAI RACHCHH REASON TO TAKE A VIEW DIFFERENT FROM THE VIEW CONCURRENTLY TAKEN BY THE ASSESSING OFFICER AND THE LD CIT(A). THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. M. A . NO . 23/RJT/2013 (ARISING OUT OF ORDER IN ITA NOS.44 & 45/RJT/2012) 11. FACTS IN THE PRESENT MISCELLANEOUS APPLICATION ARE IDENTICAL WITH THOSE IN SMT ALKABEN MUKESHBHAI RACHCHH IN M.A. NO. 22/RJT/2013 . FOLLOWING OUR ORDER IN M.A. NO. 22/RJT/2013 , T HE COMMON ORDER PASSED BY THIS TRIBUNAL ON 05.10.2012 IN ITA NO. 44 & 45/RJT/2012 IS RECALLED AND BOTH THE APPEALS ARE RESTORED FOR FRESH HEARING AND DISPOSAL. ITA NOS.44 & 45/RJT/2012: AY 2004 - 05 / 2005 - 06 : APPEAL BY MUKESHBHAI G RACHCHH 12. FACTS AND CI RCUMSTANCES IN BOTH THE APPEALS FILED BY SHRI MUKESHBHAI G. RACHCHH ARE IDENTICAL WITH THOSE IN THE APPEALS FILED BY SMT ALKABEN MUKESHBHAI RACHCHH. IT WAS STATED AT THE TIME OF HEARING BY THE LD AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THERE WAS NO DIFFERENCE IN THE FACTUAL MATRIX OF BOTH THE CASE S AND THEREFORE THE ORDER PASSED IN ONE CASE MAY BE FOLLOWED IN THE OTHER CASE. W E HAVE ALREADY TAKEN A VIEW IN THE CASE OF SMT ALKABEN MUKESHBHAI RACHCHH THAT THE CLAIM OF THE ASSESSEE REGARDING GIFT IS NO T GENUINE. WE HAVE CONFIRMED THE ORDER PASSED BY LD CIT(A) IN THAT CAS E . FOLLOWING THE SAME, WE CONFIRM THE ORDER PASSED BY THE LD CIT(A) IN THE PRESENT CASE ALSO. BOTH THE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 10 . 0 7 . 201 3 SD/ - SD/ - (T. K. SHARMA) ( D. K. SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT : 10 . 0 7 . 2013 * BT COPY OF ORDER FORWARDED TO: - 1 . APPELLANT - SMT ALKABEN MUKESHBHAI RACHCHH / SHRI MUKESHBHAI G. RACHCH CHANDERPUR RO AD, WANKANER, RAJKOT 2 RESPONDENT - ITO, WARD - 1(2), RAJKOT 3 . CONCERNED CIT 4 . CIT (A ) , GANDHINAGAR 5 . DR, ITAT, RAJKOT 6 . GUARD FILE BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT