TMI Blog2014 (10) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... es for telephone, electricity and household expenses for the assessee were being met by her - The education expenses of the daughters of the assessee it is seen were met by the ex-husband of the assessee and the assessee has placed details of alimony settlement monies given by her ex-husband and his family along with copy of affidavit of the ex-husband - None of these have been rebutted by the Revenue – the order of the CIT(A) is upheld – Decided against revenue. Unexplained gift - Genuineness of gift – Held that:- CIT(A) rightly was of the view that the order does not warrant any interference - Copy of the gift deed along with copy of the bank statement of the donor reflecting the gift made by Sh. Surendra Uppal is available - nothing has been placed to controvert the finding that the gift has been made by Shri Surendra Uppal on account of love and affection for the assessee with whom admittedly he was living - The fact that he had been living with the assessee over the years has been admitted by Shri Surendra Uppal in his assessment proceedings over the years prior to the search is available on record - This has not been rebutted by the Revenue – the contention of the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of unexplained household expenses solely relying on an unsubstantiated fact that the assessee s household expenses were met by her mother and by her ex-husband whereas no such evidence were furnished before the AO during the course of assessment proceedings. 3. That the CIT(A) erred in law in deleting the addition of ₹ 25,00,000/- on account of alleged unexplained gift without appreciating the fact that the assessee failed to file any evidence with regard to the genuineness of such gift despite the specific opportunity given to the assessee. 4. In doing so, the CIT(A) ignored the decision in the case of Rajiv Tandon vs. CIT, 294 ITR 219 which clearly lays that the concept of genuineness of gift which also includes the occasion and human probabilities in parting with a sum as gift in favour of another. CIT(A) failed to consider these factors while giving relief to the appellant on account of this alleged gift. 5. That the order of ld. CIT(A) being erroneous in law and on facts needs to be vacated and the order of the AO be resotred. 6. That the appellant craves leave to amend any one or more of the grounds of the appeal as stated above as and when need f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 7,02,084.00. The assessee in her explanation filed on 12.12.2006 while explaining the expenditure showed education expenditure of daughter at ₹ 1,63,985.00, Payment in Foreign Currency at ₹ 2,00,000.00. Son purchase of ₹ 13,490.00, Cash deposited in HSBC at ₹ 3,900, 10 FDRs with HSBC of ₹ 49,000.00, 10 FDR s with HSBC more than of ₹ 4,00,000.00, Air Tickets through Ashwa Tours Travels of ₹ 25,000.00, Deposited in Post Office of ₹ 10,000.00 Deposited in Post Office of ₹ 13,000.00, Expenses in Education of Daughter of ₹ 1,60,160.00, Expenses in Education of Daughter of ₹ 14,050.00 Bill of Ashwa Tours and Travels of ₹ 13,042.00 Bill of Ashwa Tours and Travels of ₹ 30,000.00 and Bill of Ashwa Tours of Travels of ₹ 85,784.00. The aggregate of expenditure comes to ₹ 11,81 ₹ 11.00 which includes FDRs of ₹ 4.00 lacs. The assessee was required to explain the sources are FDR and compliance of other quires as per notice already given. As per assessee replies filed earlier are to be taken in response to earlier queries. The FDRs were said to have matured and were reinvested. Regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross check the same. Considering the findings recorded the ld. Sr. DR was required to address the documents available in the paper book filed, however, it was his submission that the findings recorded in the assessment order are sufficient to sustain the addition made and it was his request that the impunged order be reversed and additions made may be upheld. 7. The ld. AR addressing the background of the case submitted that in the facts and circumstances of the present case the assessee is the last person who ought to have been searched looking at the nature of the income and it is a matter of fact that she had been subjected to search only on account of the fact that she was living with the late Sh. Surendra Uppal which fact would be borne out from the copy of the panchnama filed in the paper book page 25, wherein column A of the warrant shows that it is in the name of Shri Surendra Uppal Smt. Priti Verma at the residential premises of Smt. Priti Verma B-42, Gangotri Enclave, GK-II, New Delhi which she has stated right at the outset that it was paid for by Shri Uppal in the A.Y. 1998-99 and is found recorded in the assessment order itself. 7.1 Inviting attention to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order: Q3 Please stated the details of investment made in purchase of Flat No.B-42A, Gangotri Apartment with source thereof. The answer to the Q3 A General Power of Attorney dt. 23.12.1997 was executed by Mrs. Alpana Gupta in favour of my brother Sh. Pankaj Johri in respect of the above flat (Page No. 14 to 16 of Annexure A-5). It was agreed that the flat was on sale for ₹ 12 lacs. The agreement to sale was made on my name by Shri Alpana Gupta and entire payment of ₹ 12 lacs were made by December, 1997. The mode, manner and source of investment which could be by Surendra Uppal. I will enquire from his and till it on the next date. 8.2 It is seen that it was further stated on behalf of the assessee that the sale deed was registered on 29/09/2003 which fact is evident from pages 19 to 24 of the paper book disclosing the sale consideration making reference of agreement to sell on 20/04/1998 as a result of which physical possession of the said flat had been handed over to the assessee with the promise to execute a proper sale deed in future which also has been executed on 29/09/2003. Accordingly the reason including the same in the opening balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. It was also pointed out that apart from this the mother of the assessee Dr. Urmila Joly who is a retired Doctor from Central Government Health Services residing in 307 Alkananda, New Delhi also accepted the fact that she has also extended full support to the assessee and her minor grand daughters who resided with her and the electricity, telephone etc. expenses and other household expenses were taken care of by her. Confirmation of the certificate of the mother it was stated is available in the paper book, which too has been confronted to the AO and not rebutted during the appellate proceedings before the CIT(A) and not have these been controverted in the present proceedings by the ld. Sr. DR. Referring to the impugned order it was submitted that the assessee has contended that she did not possess or own a car accordingly, the occasion to maintain a car did not arise. Since electricity and telephone expenses it was submitted were met by the mother and education expenses for the daughters were met by the father the estimated addition of ₹ 1,50,000/- it was submitted has rightly been quashed by the CIT(A). Accordingly it was his submission that the findings arriving at CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by him that it is a matter of record that wherever and whenever the assessee has received professional receipts from Uppal Group of concerns she has disclosed the same in her returns filed in the normal course. In these circumstances the findings on facts that the amount is a gift to the assessee deserves to be upheld. 14. We have heard the rival submissions and perused the material available on record. It is seen that the assessee before the CIT(A) advanced the following arguments which have been reproduced para 8.2 of the impugned order, considering which the CIT(A) proceeded to grant relief: 8.2 The appellant in her submission has stated that both the appellant and Shri Surendra Uppal (the Donor) in his disclosure in block assessment have stated that a sum of ₹ 25,00,000 was gift . The appellant has also stated that the receipts given to her by Uppal Group of Concerns are separate legal entities and she has accounted for professional receipts in her taxable income from time to time in her regular returns. She has also provided the gift deed and the bank statements of Surendra Uppal to establish the same. 15. We have heard the rival submissions and perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her and by her ex-husband whereas no such evidence were furnished before the AO during the course of assessment proceedings. 2. That the CIT(A) erred in law in deleting the addition of ₹ 6,20,000/- on account of alleged unexplained gift without appreciating the fact that the assessee failed to file any evidence with regard to the genuineness of such gift despite the specific opportunity given to the assessee. 3. In doing so, the CIT(A) ignored the decision in the case of Rajiv Tandon vs. CIT, 294 ITR 219 which clearly lays that the concept of genuineness of gift which also includes the occasion and human probabilities in parting with a sum as gift in favour of another. CIT(A) failed to consider these factors while giving relief to the appellant on account of this alleged gift. 4. That the order of ld. CIT(A) being erroneous in law and on facts needs to be vacated and the order of the AO be restored. 5. That the appellant craves leave to amend any one or more of the grounds of the appeal as stated above as and when need for doing so may arise. 19. The common stand of the ld. Sr. DR and AR was that the facts and circumstances remained identical the findings in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also received ₹ 40,000.00 stated above from Senior Citizen Home Complex Welfare Society. Hence infact the amount of gift to the assessee is in lieu of services rendered by her. Hence the amount of ₹ 6,20,000.00 is taken as receipt in the hand and added accordingly. 22. The ld. AR has contended that the arguments on behalf of the assessee remain identical and whenever there has been professional receipt it has been disclosed the fact that Sh. Uppal did live with the assessee over the years is a fact and thus the gift made out of love and affection cannot be doubted. The averments made before the CIT(A) are found recorded in para 8.2. These facts it was submitted have not been rebutted by the Revenue. For ready reference the same is extracted hereunder: 8.2 The appellant in her submission has stated that both the appellant and Shri Surendra Uppal (the Donor) in his disclosure in block assessment have stated that a sum of ₹ 6,20,000/- was gift . The appellant has also stated that the receipts given to her by Uppal Group of Concerns are separate legal entities and she has accounted for professional receipts in her taxable income from time to time in her regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate proceedings in quantum appeal on the basis of which I have deleted the addition in my order of date in Appeal No. 173/07-08. The addition having been deleted and explanations given during appellate proceedings, I, in my considered opinion, hold that it is not a case which is hit by the provisions of Explanation 1 of section 271(1)(c). Penalty is held as not imposable in view of the ratio of the case of CIT vs. Reliance Petro Products Pvt. Ltd., 322 ITR 158 (SC). Penalty order is cancelled. 27. In the aforementioned peculiar facts and circumstances the departmental appeal is dismissed. ITA No. 2319/Del/ 2320/Del/2011 28. ITA Nos. 2319/D/2011 2320/D/2011 have been filed by the revenue against the separate orders dated 25/02/2011 of CIT(A)-Meerut in penalty proceedings u/s 271(1)(c) for 2004-05 2005-06 assessment years assailing the impugned orders on the ground that the penalty imposed should not have been quashed. It is seen that in both the appeals the CIT(A) in para 4 has proceeded to quash the penalty imposed in view of the fact that the additions made in quantum have been deleted. Since the said findings on fact has been upheld by us while deciding the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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