TMI Blog2017 (10) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... ly because gift has been received from an un-related person, it automatically becomes bogus or non-genuine. Hence, we are of the opinion that the ‘reasons’ as recorded by the Assessing Officer cannot be reckoned as ‘reason to believe’ that the gift received by the assessee is an income chargeable to tax which has escaped assessment. - Decided in favour of assessee. - I.T.A. No.2634/DEL/2007 - - - Dated:- 25-10-2017 - SHRI. AMIT SHUKLA, JUDICIAL MEMBER AND SHRI L. P. SAHU, ACCOUNTANT MEMBER For The Appellant : Shri Ashwani Taneja, Advocate For The Respondent : Shri Arun Kumar Yadav, D.R. ORDER PER AMIT SHUKLA, J.M.: The aforesaid appeal has been filed by the assessee against the impugned order dated 3/4/2007 passed by the ld. CIT (Appeals)-V, New Delhi for the quantum of assessment passed under section 143(3)/148 of the Income Tax Act, 1961 for the assessment year 2002-03. In the grounds of appeal, the assessee has raised the following grounds:- 1. That on facts and circumstances of the case the Ld. Assessing Officer has erred in taking action under section 147 and issuing notice under section 148. 2. That the ld. Assessing Officer has erre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice U/s 148: The assessee Shri Ashok Mahindru R/o 351/15, Jaccubpura, Gurgaon has filed his return of income for the A.Y. 2002-03 with this ward on 30.07.2002. During the course of assessment proceedings for the A.Y. 2001-02 in the case of Shri Ashok Mahindru and Sons, Gurgaon it was noticed that the assessee including all other family members are receiving bogus gift in different assessment years. During the assessment year 2002-03, the assessee Shri Ashok Mahindru has shown receipt of gift of ₹ 28,70,126.23 from Mr. Rajeev Gupta S/o Shri Ramesh Chand Gupta R/o 3-C Court Lane, Civil Lines, Delhi through P.O. No 048107 dt. 28.6.2001, Ch. No 118992 dt. 29.6.2001 Ch. No 119884 dt. 30.6.2001 for ₹ 10,00,000/-, ₹ 10,00,000/- and ₹ 5,00,000/- respectively. The gift received by the other family members of the assessee were held as Non-genuine and were treated as undisclosed income. The assessee and her family members have used colourable device to garb their income from undisclosed sources. The donor is neither related to assessee and other family members of the assessee. Therefore, I have reason to believe that the gift stated to be receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order or the name of the donor, Shri Rajiv Gupta. There is absolutely no other material on record to show that the gift received by the assessee from Shri Rajiv Gupta is either bogus or donor is not genuine. Without any such tangent material, the reasons recorded is without any basis and is based on suspicion, which cannot be held to the valid in the eyes of law. In support of his contention, he strongly referred and relied upon catena of judgements, including certain latest judgments of Hon'ble Delhi High Court in the case of Pr. CIT vs. Meenakshi Overseas Pvt. Ltd. in ITA No.692/2016; judgment dated 26/5/2017; and Pr. CIT vs. RMG Polyvinyl (I) Ltd. in ITA No.29/2017 CM No.1009/2017, judgment dated 7/7/2017. Beside this, certain other judgments have also been referred and relied upon by him, the list of which have been filed separately by him along with separate compilation of the case laws. In sum and substance his main contention has been that, such a reasons recorded without any tangible material linking with the escapement of income, cannot be held to be valid in the eyes of law so as to reopen the assessment under section 147. 4. On the other hand, the ld. Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has escaped assessment within the meaning of section 147. * Lastly, he further observes that assessee and his family members have used colourable device to garb their income from undisclosed sources as the donor is neither related to the assessee or to any other family members of the assessee. On this premise, the assessee s case has been sought to be reopened vide notice dated 29/3/2006 issued under section 148. 6. In the reasons recorded the only material, which has been referred and relied upon for reopening the assessment, is based on the observations and findings given in the course of assessment proceedings for the assessment year 2001-02 in the case of M/s Ashok Mahindru Sons. From the perusal of the assessment order in the case of M/s Ashok Mahindru Sons, copy of which has been filed before us, we find that nowhere there is any reference of the donor, Shri Rajiv Gupta that he was also one of the donors in that case. The presumption would have been quite strong had the gifts from the same donor would have been found to be non-genuine. But there is no whisper about any donor named as Shri Rajiv Gupta in the said assessment order. In that case, assessee, M/s As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een found that gifts were nongenuine, then the gifts received by the assessee in this year from a different person altogether is also not genuine. Had it been a case here that the same donor have given gift to other family members, in whose case it was found that such gifts are bogus and non-genuine, then perhaps one could say that there is some material having rational connection to entertain the reason to believe that similar kind of gifts from same donor could be nongenuine. But here in this case as discussed above, in the assessment proceedings of M/s Ashok Mahindru Sons, which is the material relied upon by the Assessing Officer in his reasons recorded , there is no reference or whisper about the donor in the case of the assessee, i.e., Shri Rajiv Gupta or there is any mention about the assessee. Hence we are of the considered opinion that in the present case there is no rational and intelligible nexus between the said material as referred by the Assessing Officer in the reasons recorded for the formation of reason to believe for income escaping assessment. It appears that reopening has been done simply as a pretence to make further enquiry about the genuineness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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