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Sh. Narendra Kumar Sharma Versus ITO, Ward 1 (4) , Ghaziabad

2016 (3) TMI 750 - ITAT DELHI

Addition u/s 68 - ingenuity of gift - gifts from parents - Held that:- As the mother was not keeping well, she could not be produced before the A.O. Nevertheless, the assessee had vide letter dt. 5.7.2011 requested the A.O. to depute a Departmental Officer to the residence, so that the statement of Smt.Chandervati could be recorded. This was not done. Thus, to make an addition on the ground that she was not produced is wrong. Smt. Chandervati Devi filed various documents to substantiate the sour .....

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.O. chose to dispute the will, he could have examined the witnesses. He failed to do. The affidavits from various persons filed by the assessee have wrongly been dismissed as fabrications. No inquiry was made by the A.O. nor was any material gathered to come to such a conclusion. The evidence was dismissed based on surmises and conjectures. Hence for all these reasons, we are of the considered opinion that the gift of ₹ 15 lakhs given by the assessee’s mother Smt.Chandravati Devi is a genu .....

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vidence filed by the assessee based on surmises and conjectures. If the source of funds cannot be proved by the father or by Mr.Ram Kumar Sharma, the course of action should have been to make an addition in their hands. Sh.Sharma has filed his return of income for the A.Y. 2008-09. Thus in our view, the assessee discharged the burden of proof that lay on him and had proved the genuineness of these gifts. - Decided in fovour of assessee - ITA No.6383/Del/2012 - Dated:- 5-2-2016 - SHRI J. SUDHAKAR .....

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. He filed his return of income declaring gross total income of ₹ 2,35,672/ on 29.12.2008. 2.1. The Assessing Officer (AO) issued a notice to the assessee u/s 143(2) of the Act on 30.7.2010. The assessee vide letter dated 7.7.2010 requested the A.O. to treat the return filed earlier on 29.12.2008, as that which is filed in response to the notice u/s 148 of the Income Tax Act 1961 (the Act). 2.2. The reasons recorded for reopening were as follows. The return of income for A.Y. 2008-09 has b .....

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the income of ₹ 40,80,000/- chargeable to tax has escaped assessment within the meaning of S.147 of the Act. Hence, the case is reopened u/s 147 of the Act and notice u/s 148 of the Act is issued accordingly. 2.3. The A.O. completed the assessment u/s 143(3) of the Act on 30.9.2011 determining the total income at ₹ 31,91,580/-, inter alia making additions of ₹ 30 lakhs being an addition u/s 68 of the Act claimed to have been received by the assessee from his mother Smt.Chanderv .....

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behalf of the Revenue. 5. On a careful consideration of the facts and circumstances of the case, perusal of material placed on record, orders of lower authorities, as well as case laws cited, we hold as follows. 6. The Ld.Counsel for the assessee Mr. Rajan Bhatia submitted that : (a) The reopening is bad in law as the A.O. had time to issue notice u/s 143(2) of the Act on the return of income originally filed, up to December,2009, as the material based on which notice u/s 148 of the Act was issu .....

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u/s 148 of the Act, reopening the assessment based on the very same material received by him in December,2008. Hence he submitted that the reopening For this proposition that such reopening is bad in law, he relied on the following case law. CIT vs. Ved & Co. Reported in 302 ITR 328 (b) That the reopening is bad in law for non application of mind and as there is no nexus between the finding of facts and the belief that the income has escaped the assessment. He argued that the A.O. acted on .....

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such evidence from both the donors, who are parents of the assessee and hence discharged the onus that lay on him to prove he genuineness of the gift. He further submits that evidence of the source of source has also been furnished to the A.O. In the case of Smt.Chandervati Devi, he pointed out that the A.O. was requested to depute Officers to examine her on oath as she could not move out of the house due to advanced age and illness and the A.O. neglected the same. Regarding the gift from his f .....

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Ld.Sr.D.R. on the other hand opposed the contentions of the assessee and submitted that the reopening was based on information received from the Investigation Wing. He argued that the statement of the assessee that the Investigation Wing had sent information to the A.O. on 19.12.2008 itself or immediately thereafter is only a presumption and it could have been that the information came into the possession of the A.O. only after 30.9.2009. He submitted that as no notice u/s 143(2) of the Act was .....

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in support of his contention. 8. On merits he relied on the order of the Ld.CIT(A) and submitted that the credit worthiness of Smt.Chandervati and Shri Prem Dutt Sharma were not proved and submitted that the source of gift could not be substantiated. He submitted that the affidavits of various persons were fabrications and that the mother was not produced before the A.O. for examination. In the case of the father he submitted that the sale agreement is a concorded story and Sh.Ram Kumar Sharma, .....

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made. On perusal of the evidences, we are of the considered opinion that the assessee has lead sufficient evidence to prove the genuineness of these gifts. Both the mother and father have confirmed having given the gifs and have filed affidavits in support of the same. Gift deeds were executed by both of them. As the mother was not keeping well, she could not be produced before the A.O. Nevertheless, the assessee had vide letter dt. 5.7.2011 requested the A.O. to depute a Departmental Officer t .....

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a return of income for the A.Y. 2008-09. There is no basis to doubt the will written by Smt.Ramkali who is the mother of Smt.Chandravati Devi. Registration of will is not mandatory. The will was notarised will and has two witnesses. If the A.O. chose to dispute the will, he could have examined the witnesses. He failed to do. The affidavits from various persons filed by the assessee have wrongly been dismissed as fabrications. No inquiry was made by the A.O. nor was any material gathered to come .....

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Kumar Sharma on the execution of an agreement to sell. Mr.Ram Kumar Sharma confirmed this agreement on oath. The AO has not an iota of evidence to disbelieve these evidences or these statements recorded of oath. The A.O. rejected the evidence filed by the assessee based on surmises and conjectures. If the source of funds cannot be proved by the father or by Mr.Ram Kumar Sharma, the course of action should have been to make an addition in their hands. Sh.Sharma has filed his return of income for .....

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