9911796707
TMI Blog2011 (10) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2. That having regard to the facts and circumstances of the case, the Ld CIT(A) has erred in law and on facts in confirming the action of Ld Assessing Officer in making an addition of Rs..1,01,000/- as income from unexplained source u/s 68 of the Income Tax Act, 1961 on account of gift received from Shri Ashok Bindal. 3. That in any case and in any view of the matter action of Ld CIT(A) in confirming the action of the Ld Assessing Officer in making an addition of Rs..1,01,000/- on account of gift received is illegal, unjustified bad in law and deserves to be quashed. 4.That having regard to the facts and circumstances of the case, Ld CIT(A) has erred in law and on facts in not reversing the action of Ld Assessing Officer in charging interest u/s 234A, 234B and 234C of the Income Tax Act, 1961. 5. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other." 2. The assessee filed return of income on 26.7.2005 declaring total income of Rs..1,63,748/-. The same was processed u/s 143(1) of the Act. Thereafter, information was received from DIT (Inv.I), N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce him. The assessee has got original gift deed also duly signed by the donor. Earlier photocopy of the gift deed unsigned from the donee's side and witness was filed. However, original document contained signature of donor and donee both and witness as well, a photocopy of such deed is again enclosed and it is requested that earlier copy may please be ignored as it was taken before the donee and witness could put his signature at the time of receiving the gift." 4. The Assessing Officer, thereafter, on the basis of evidence on record passed the assessment order on 12.12.2007. The Assessing Officer noted that the assessee did not indicate the relationship of the donor. If the donor was a stranger, the Assessing Officer opined that no reason has been adduced as to why he should part with his hard earned money. The bank statement of Shri Ashok Bindal was also not furnished by the assessee. The donor was never produced for examination. There was photocopy of gift deed which was not signed by the donor and witness and another photocopy of the deed furnished with the letter dated 29.11.2007 which had the signature of the two. The affidavit of the donor was not an admissible evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhmani Mewal Dass 103 ITR 437 (SC). 13.CIT v. Chugga Mal Raj Pal 79 ITR 603 (SC). 14. Sheo Nath Singh v. CIT 82 ITR 147 (SC). 15. CIT v. Pradeep Gupta in I.T.A. No.353/06 207 CTR 115(Del.). 9. With reference to the merit of addition of Rs..1,01,000/- it was submitted before the Ld CIT(A) that the assessee had furnished following evidence before the Assessing Officer:- i) A copy of the letter to Assessing Officer in which it was explained that appellant received a gift of Rs..1,01,000/- from Shri Ashok Bindal. ii) A copy of affidavit of Shri Bindal. iii) A copy of PAN card of Mr. Bindal. iv) A copy of return of Mr. Bindal to show that he was income tax assessee. v) A copy of another letter to Assessing Officer along with which copy of bank statement of the donor and photocopy of the gift deed was filed. vi) A copy of Gift Deed. 10. Thus, it was contended that the assessee had proved the identity of the donor and had also furnished necessary documents in support of the claim that the impugned amount was received as gift from the said party. It was further stated that the copy of statement of Shri Deepak Gupta recorded on 25.9.2004 in which Shri Gupta allegedly admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Provinces Manganese Ore Co. Ltd. v. ITO (1991) 191 ITR 662 (SC). 12. The Ld CIT(A), therefore, upheld the validity of reopening of the assessment u/s 147 of the Act. 13. As regards the justification of addition, the Ld CIT(A) noted that the gift was given to the appellant through cheque on the same day on which a credit of equivalent amount was made in the account of the donor. The assessee also could not produce the donor for verification of the claim that the amount was indeed received as gift. The Ld CIT(A) opined that the papers/evidence furnished by the assessee were not sufficient to prove the genuineness of the transaction particularly when the donor was not presented before the Assessing Officer. Reliance was placed by him on the Hon'ble Punjab & Haryana High Court's judgment in the case of Tirath Ram Gupta v. CIT 304 ITR 145. The Ld CIT(A) opined that the jurisdictional High Court's decision in the case of Sajjan Dass & Sons (supra) was rightly applied by the Assessing Officer. 14. The Ld CIT(A) further held that the onus was on the assessee to establish that the donor had means and the gift was genuine. Reliance of the Assessing Officer on the following ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further contended by him that sufficiency of information cannot be gone into for deciding the issue of reopening of assessment. The Assessing Officer also cannot make any enquiry before reopening the assessment as that would amount to roving enquiry. It was submitted by him that there was prima facie evidence before the Assessing Officer on the basis of which it could be held by him that there was escapement of income. As only processing u/s 143(1) was done prior to the reopening of the assessment, it was contended by him that there is no question of change of opinion. The reopening was also not done mechanically. Mere recording of reasons in the cyclostyled form would not lead to the conclusion that the reopening was done in a mechanically manner. It was, thus, contended by him that the assessment was validly reopened by the Assessing Officer and the same was rightly confirmed by the Ld CIT(A). 19. We have heard the parties and perused the record. We have also gone through the case laws cited by both the sides. In the present case, the assessee has nowhere raised a contention that the statement of Shri Deepak Gupta which is available on assessee's paper book pages 27-31 (certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re relied on:- 1. CIT v. Ahswani Gupta 322 ITR 396 (Del.) 2. CIT v. Anupam Kapoor, 299 ITR 179 (P&H). 21. It was also contended that the provision of section 68 was not applicable in the facts of the case in so far as the amount was not credited in the books of accounts of the assessee. Reliance was placed on the following case laws:- 1. Jwaharlal Oswal v. ACIT 71 ITD 324 (Chd.). 2. Ms. Mayawati v. DCIT 113 TTJ 178 (Del.). 3. CIT v. Taj Borewalls 291 ITR 232 (Mad.). 22. The Ld DR, on the other hand, in addition to relying on the orders of the authorities below submitted that in the present case, what is disputed is the genuinity of the gift. The case laws relied on by the Ld AR are not on the issue of gift. It was submitted that the case laws relied on by the Assessing Officer and the Ld CIT(A) were related to gift and thus the concurrent finding of the authorities below should be confirmed. It was pointed out by him that the onus that lay on the assessee in case of a gift was not discharged by the assessee and thus the same never shifted to the Assessing Officer. In such circumstances, it was contended by him/ that the submissions made by the Ld AR for the assessee are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther opportunity to produce the donor before the Assessing Officer as well as the opportunity to cross examine Shri Deepak Gupta. Taking into consideration the facts that the case was reopened by issue of notice u/s 148 of the Act dated 13.3.2007 and the assessment was completed on 12.12.2007 and the fact that the revenue has not produced any evidence that the statement of Shri Deepak Gupta was confronted to the assessee during the assessment proceedings, we deem it fit to set aside the orders of the authorities below on this issue and remit the matter back to the file of the Assessing Officer with the direction that the assessee be given further opportunity to produce Shri Ashok Bindal and the assessee should also be given opportunity to cross examine Shri Deepak Gupta. A fresh order be passed as per law after complying with above directions of ours and giving the assessee adequate opportunity of being heard. Thus ground No.2 and 3 taken by the assessee is allowed to the extent mentioned above. 26. As regards ground No.4, on charging of interest u/s 234A, 234B & 234C, nothing has been argued by the Ld AR for the assessee before us. Thus, this ground is not adjudicated by us. 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
