TMI Blog2020 (8) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in dispute made by AO u/s 68 is as per law and no interference is called for in the impugned order passed by the Learned First Appellate Authority, because the same has been passed after examining the provisions of law as well as documentary evidences filed by the assessee along with various case laws mentioned in the impugned orders. Appeal of the assessee is hereby dismissed. - ITA No. 1738 to 1741/Del/2018 - - - Dated:- 3-2-2020 - Sh. H.S. Sidhu, Judicial Member For the Assessees : Ms. Rano Jain, Advocate; Ms. Mansi Jain, C.A.; For the Department : Sh. Pradeep Singh Gautam, Sr. D.R. ORDER These are four appeals filed by the different assesses against the respective impugned orders dated 22.12.2017, passed by the learned Commissioner of Income Tax (Appeals) 14, New Delhi, for the Assessment Year 2005-06. Since the grounds involved in these four appeals are common and identical and the amount in dispute is also the same, therefore, for the sake of convenience, I am disposing off all the 04 appeals by passing this common order and reproduce the following common grounds raised in all the four appeals:- 1. That on the facts and circumstances of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques respectively. After examining the gift deed of the assessee, the Assessing Officer was of the view that all these persons chose to make a gift to the assessee, on the same day, without any occasion. The Assessing Officer also found that none of the family members have made any gifts to the assessee during the year. On examining the gift deed so furnished it was noticed that all the three donors had deposed that gifts have been made out of their natural love and affection for the assessee and the Assessing Officer was of the view that all the three donors are neither part of the family of the assessee or even a relative of the assessee. In light of this, the Authorized Representative of the assessee was asked by the Assessing Officer to furnish details about the gift transactions and also furnish evidence to establish creditworthiness of the donors. In response thereto, assessee furnished the copy of affidavit regarding gift deed, I.T. particulars and bank extract of the donors. On examination of the same the Assessing Officer noted that all the three donors had shown returned income which was slightly more than the maximum amount which is not taxable i.e. Shri Naresh Jain S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifts received by the assessee from the said three persons and completed the assessment on taxable income of ₹ 4,32,160/- vide order dated 31.10.2010 passed under Section 143(3) of the Act. Against the assessment order, assessee filed appeal before the Learned First Appellate Authority who vide his impugned order dated 22.12.2007 has upheld the assessment order by dismissing the appeal filed by the assessee. Aggrieved with the impugned order dated 22.12.2017, assessee filed the present appeal before the Tribunal. 7. During the hearing, Mrs. Rano Jain, the learned A/R of the assessee argued on one legal ground as well as on merits also. She stated that the AO had made the addition of ₹ 3,00,000/- in each case u/s 68 of the Act on account of gifts received by the assessee by holding that ₹ 3,00,000/- does not represent gift and assessee is unable to prove this gift as bonafide gift. She stated that assessee is not maintaining books of accounts and filing the return of income on account of business income. She stated that assessee was not having business income / receipt / turnover in the relevant assessment year, then the question of maintaining the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission on legal issue as well as on merits. He especially drew my attention towards paras 17 to 20 of the aforesaid Tribunal s order dated 13.05.2019 and stated that the legal argument advanced by the learned counsel for the assessee has been adjudicated and answered in favour of the Revenue on the basis of the judgement of Hon ble Bombay High Court in CIT Vs. Bhaichand N. Gandhi reported in (1983) 141 CTR 63 (Bom). Respectfully following the same the legal issue raised by the learned counsel for the assessee may be dismissed. 9. I have heard both the parties, perused the orders passed by the Revenue authorities on the legal issue by the learned counsel for the assessee especially the order passed by the ITAT, Delhi Bench G New Delhi in ITA. Nos. 937 and 938 (Del) of 2012 Assessment Years 2004-05 and 2005-06 in the case of Shri Janak Goel, Gurgaon Vs. Dy. Commissioner of Income Tax, Central Circle 4, New Delhi vide order dated 13.05.2019. I am of the considered view that the legal issue raised by the learned counsel for the assessee has already been adjudicated and decided in favour of the Revenue by the Division Bench of the Tribunal. The relevant para Nos. 17 to 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain sums were found in the bank account of the assessee but were not found in the regular cashbook submitted by the assessee. In the circumstances, the honourable High Court stated so. Further, the assessment year involved in that case is 1962 63. Admittedly on that date definition of the books of accounts ‟ as prescribed under section 2 (12A) was not there on statute, which is inserted by the finance act, 2001, with effect from 1/6/2001. Further, the honourable Bombay High Court in 85 taxmann.com 306, 250 taxman 362 and 399 ITR 256 (Bombay) in Arunkumar J Muchhala V CIT has considered an identical issue where the above decision of the honourable Bombay High Court in 141 ITR 67 was considered. The honourable Bombay High Court noted that in Sudhir Kumar Sharma (HUF) vs CIT, 46 taxmann.com 340, honourable High Court noted that when during the course of assessment proceedings, assessing officer noted that the assessee has deposited huge amount of cash in his bank account, the addition of the said amount in the income of the assessee, by invoking the provisions of section 68 of the income tax act is justified. It was further held that onus is on the assessee to explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such amount in the income of the assessee by invoking provisions of Section 68 of the Act is justified. Special Leave Petition was preferred and challenged the order of the Hon ble High Court before the Hon ble Supreme Court of India which has already been dismissed. The same is reported in Shri Surinder Kumar Sanpal Vs. Income Tax Officer, New Delhi reported in 69 taxman.com 219 (239 Taxman 264) (SC). 11. I have gone through the order referred by the learned counsel for the assessee which is authored by the under-signed and I am of the view that at the time of argument in the appeals in which the under-signed passed the order where the assessee is not maintaining books of accounts and Section 68 of the Act is not applicable at the time of hearing of the said appeals. Learned Departmental Representative has not cited the decision of Hon ble Bombay High Court in CIT Vs. Bhaichand N. Gandhi (supra) as well as the judgement of the Hon ble Supreme Court of India dismissing the appeal filed against the judgement of the Hon ble Bombay High Court in Shri Surinder Kumar Sanpal Vs. ITO (supra). Therefore, the benefit of said orders passed by the under-signed could not be given in futur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were interacting with each other very closely, both were having enjoyed together for more than five years which transformed into good and healthy relation more than blood relation and the gifts in question result of it. Finally she argued that keeping in view the circumstances explained by the assessee, before the AO and the Learned First Appellate Authority as well as before the Tribunal the assessee has discharged her onus by producing various documentary evidence which the assessee has filed in the shape of paper book before the lower authorities as well as before the Tribunal and requested that the addition in dispute may be deleted in all the four appeals. 14. The learned Departmental Representative relied upon the order passed by the Learned First Appellate Authority. He has also filed two page written submissions to support the impugned order in which he has cited 8 judgements delivered by the Hon ble High Courts. For the sake of convenience, the written submissions filed by the learned Departmental Representative dated 22.01.2020, is reproduced as under:- Sub : Written Submission in the above case - reg. In the above case, apart from relying on the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft of ₹ 35 lakhs from his brother and Assessing Officer invoking provisions of section 68 added gift amount to assessee's income, since assessee failed to establish creditworthiness of donor and genuineness of transaction, impugned addition was justified 7. Pandit Vijay Kant Sharma Vs CIT Allahabad High Court 2017 [2017] 88 taxmann.com 219 (Allahabad) Where authorities below made addition of amount received by assessee as gift under section 68 taking a view that gifts were not genuine as donors were very petty persons having no source to gift such a heavy amount to assessee, said finding being finding of fact, did not require any interference 8 CIT Vs M. S. Aggarwal Delhi High Court 2018 [2018] 93 taxmann.com 247 (Delhi) Where in course of block assessment proceedings, AO made addition to assessee's undisclosed income in respect of gift, in view of fact that assessee did not even know donor personally and, moreover, he himself in presence of his Chartered Accountant had made a statement under sec. 132(4) admitting that said gift was bogus, impugned addition was to be confirmed. Sr. Departmental Representative SMC Bench, ITAT, New Delhi. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to produce the donors for confirmation of the gift transaction meaning thereby that the assessee did not discharge its onus for making the compliance of the direction of the AO despite repeated opportunities provided on 22.05.2006, 25.05.2007 and 11.06.2007. The Assessing Officer has also issued summons to the donor on 04.06.2007 for verification of the donor and by Registered Post to the three donors and they were asked to attend on 14.06.2007. Summons issued to Shri Naresh Jain was returned by the Postal Department with remarks No such address . Summons to the other two donors, namely, Shri Gopal Bansal and Shri Umesh Jain were returned unserved by the Postal Department with the remarks Left without address and No such person respectively. These facts were confronted to the A/R of the assessee on 25.06.2007 and asked for the non-service of the summon on the donor, should not be viewed adversely. In compliance of the same the Authorized Representative of the assessee could not produce the donors and could not produce any valuable evidence and shown his inability to produce the donor. The Assessing Officer has given ample opportunities to produce the donors and file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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