EKTA MANOHAR TALREJA, MUMBAI v. I.T.O. WD 21(1)-1, MUMBAI

ITA 1037/MUM/2012 | 2008-2009
Pronouncement Date: 09-10-2013 | Result: Dismissed

Appeal Details

RSA Number 103719914 RSA 2012
Assessee PAN AFCPT0048N
Bench Mumbai
Appeal Number ITA 1037/MUM/2012
Duration Of Justice 1 year(s) 7 month(s) 26 day(s)
Appellant EKTA MANOHAR TALREJA, MUMBAI
Respondent I.T.O. WD 21(1)-1, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 09-10-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 09-10-2013
Date Of Final Hearing 14-08-2013
Next Hearing Date 14-08-2013
Assessment Year 2008-2009
Appeal Filed On 13-02-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN JUDICIAL MEMBER ITA NO. 1037/MUM/2012 ASSESSMENT YEAR: 2008-09 EKTA MANOHAR TALREJA PLOT NO. 20 GURU KRUPA-5 TH FLOOR ROAD NO. 11 JVPD SCHEME JUHU VILE PARLE MUMBAI- 400 049 PAN :AFCPT 0048 N VS. ITO WD 21(1)-1 C-10 PRATYAKSHA KAR BHAVAN BANDRA KURLA COMPLEX BANDRA EAST MUMBAI.- 400 051 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIMAL PUNMIYA RESPONDENT BY : SHRI T. R. PAITE DATE OF HEARING : 14.08.2013 DATE OF PRONOUNCEMENT : 09.10.2013 O R D E R PER DR. S.T.M. PAVALAN JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A) -32 MUMBAI DATED 20.12.2011 FOR THE ASSESSMENT YEAR 20 08-09. 2. IN THIS APPEAL THE ASSESSEE HAS AGITATED THE AC TION OF THE LD.CIT(A) CONFIRMING THE ADDITION OF RS.10 65 880/- MADE BY THE AO AS UNEXPL AINED INCOME/INVESTMENT ON ACCOUNT OF THE ALLEGED GIFT OF JEWELLERY RECEIVED BY THE AS SESSEE. 3. BRIEFLY STATED THE ASSESSEE AN INDIVIDUAL WHIL E DECLARING A TOTAL INCOME OF RS.2 65 199/- DURING THE YEAR UNDER CONSIDERATION H AD SHOWN JEWELLERY WORTH RS.10 65 880/- IN THE CAPITAL ACCOUNT WHICH THE ASS ESSEE CLAIMED AS GIFT RECEIVED FROM ONE SHRI PRADEEP SAWARNGANGE WHO RESIDES IN UAE. HO WEVER IN THE ASSESSMENT FRAMED U/S 143(3) AS THE ASSESSEE HAD FAILED TO PROVE THE CAPACITY OF THE DONOR AND GENUINENESS OF THE TRANSACTION THE AO TREATED THE IMPUGNED VAL UE OF THE JEWELLERY AS UNDISCLOSED INCOME OF THE ASSESSEE AND THEREBY ADDED THE SAME T O THE TOTAL INCOME OF THE ASSESSEE. ITA NO. 1037/MUM/2012 EKTA MANOHAR TALREJA ASSESSMENT YEAR : 2008-09 2 4. ON APPEAL THE LD.CIT(A) WHILE CONFIRMING THE AD DITION MADE BY THE AO MODIFIED THE ORDER OF THE AO TO THE EXTENT THAT THE ADDITION MADE BY AO WOULD BE TREATED AS MADE U/S 68. ACCORDING TO THE LD.CIT(A) EVEN IF THE IDE NTITY AND THE CAPACITY OF THE DONOR IS PROVED THE GENUINENESS OF THE GIFT AND THE OCCASIO N OF THE GIFT AS CLAIMED BY THE ASSESSEE IS NOT PROVED SATISFACTORILY. AGGRIEVED BY THE IMPUGNED ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 5. BEFORE US THE LD.AR FOR THE ASSESSEE HAS STATED THAT IN THE ASSESSMENT PROCEEDINGS IDENTITY OF THE DONOR HAS BEEN PROVED BY PLACING THE PAN CARD AND PASSPORT OF THE DONOR. THE GENUINENESS OF THE GIFT IS PROVED BY THE GIFT CONFIRMATION LETTER OF THE DONOR. THE PERSONAL ACCOUNT OF THE DONOR MAINTAINED WITH EMIRATES NBD ALSOUK BRANCH AND HSBC PROVES THE CREDIT WORTHINESS OF THE DONOR. ON THE LEGAL TECHNICALITIES THE LD.AR HAS STATED THAT THE AO MADE THE ADDITION U/S 69A BU T THE LD.CIT(A) HAS CONFIRMED THE SAME U/S 68. WHEN THE CREDIT ENTRY HAS BEEN MADE BY THE ASSESSEE IN THE BOOKS OF ACCOUNT SECTION 69A HAS NO APPLICATION AND THE LD. CIT(A) OUGHT NOT TO HAVE CONFIRMED THE ADDITION OF THE IMPUGNED VALUE OF THE JEWELLERY U/S 68 OF THE ACT BY MODIFYING THE ORDER OF THE AO. FURTHER THE LD.AR HAS RELIED ON T HE DECISIONS IN THE CASE OF NAFISA KHORAKI WALA VIDE IT(SS) A NO. 262/MUM/2006 CIT VS . DR. KODELA SIVA PRASAD RAO [2013 29 TAXMANN.COM 18 HC ANDHRA PRADESH] CIT VS. BHANWARLAL SHARMA [2013 32 TAXMANN.COM 281 HC GUJARAT] ETC AND OTHER DECISIONS MENTIONED IN THE FACT SHEET FILED BEFORE US DURING THE COURSE OF THE PROCEEDINGS TO S UBSTANTIATE THE CLAIM OF THE ASSESSEE THAT THE ONUS HAS BEEN DISCHARGED BY THE ASSESSEE. ON THE OTHER HAND THE LD. DR HAS POINTED OUT THAT THE SOURCE OF THE GIFT HAS NOT BEE N PROPERLY EXPLAINED BY THE ASSESSEE AND NOTHING HAS BEEN BROUGHT ON RECORD THAT THE JEW ELLERY HAS BEEN GIFTED TO THE ASSESSEE THROUGH MOTHER OF THE DONOR IN INDIA AS CL AIMED BY THE ASSESSEE. ALSO THE LD.DR HAS DRAWN OUR ATTENTION TO THE FINDINGS OF TH E LD.CIT(A) AS REGARDS THE DISCREPANCIES IN THE ALLEGED DATE OF GIFT BIRTH DA TE OF THE ASSESSEE AND SAMPLE SIGNATURE IN THE PASSPORT & GIFT DEED THEREBY PLEADING THAT T HE GENUINENESS OF THE TRANSACTION/GIFT IS NOT PROVED BY THE ASSESSEE. THE LD.DR HAS FURTHER R ELIED ON THE ORDERS OF THE AUTHORITIES BELOW TO SUBSTANTIATE THAT THE IMPUGNED ADDITION IS JUSTIFIED. ITA NO. 1037/MUM/2012 EKTA MANOHAR TALREJA ASSESSMENT YEAR : 2008-09 3 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. ON FACTUAL ISSUES IT IS PERTINENT TO NOTE THAT THE ASSESSEE H AS CLAIMED THAT THE GIFT HAS BEEN RECEIVED FROM THE UNCLE OF THE ASSESSEE (MAMA) WHO IS RESID ING IN UAE. IT IS THE CLAIM OF THE ASSESSEE THAT THE SAID JEWELLERY GIFTED HAS BEEN LA YING IN THE DONORS RESIDENTIAL HOUSE IN INDIA AND ON 01.01.2008 THE DONOR HAS GIVEN THE AS SESSEE A LETTER OF GIFT OF JEWELLERY AND REQUESTED TO COLLECT THE SAME FROM THE MOTHER O F THE DONOR RESIDING IN INDIA. HOWEVER THERE IS NO EVIDENCE TO SUGGEST THAT THE B ANK LOCKER OWNED BY THE DONOR IN INDIA IN WHICH THE JEWELLERY HAS BEEN KEPT HAS BE EN OPERATED BY THE DONOR WHEN HE VISITED LAST TIME BEFORE THE DATE OF GIFT AND THERE BY HANDED OWNER TO HIS MOTHER. IT IS NOT DISPUTED THAT THE DONOR HAS COME TO INDIA ON 21.10. 2007 AND THEN AGAIN ON 01.11.2007 AND THEN AGAIN ON 05.08.2008. HOWEVER IT IS WORTH TO MENTION THAT THE GIFT I.E. 01.01.2008 IS NOT FALLING BETWEEN ANY OF THE PERIOD S WHEN THE DONOR HAS BEEN IN INDIA. THE LD.AR HAS ALSO FAILED TO REBUT THE FINDINGS OF THE LD.CIT(A) AS TO THE DISCREPANCY/MISMATCH IN THE SIGNATURE OF THE DONOR ON THE PASSPORT AND THE GIFT DEED. THEREFORE WE ARE OF THE CONSIDERED OPINION THAT TH OUGH THE ASSESSEE HAS PROVED THE IDENTITY GENUINENESS AND CREDIT WORTHINESS OF THE ALLEGED DONOR SUCH PROOF CANNOT EVIDENT THE VERY TRANSACTION OF THE ALLEGED GIFT AS A GENUINE TRANSACTION. ON THE TECHNICAL LEGAL CONTENTION OF THE LD.AR THAT THE LD.CIT(A) OU GHT NOT TO HAVE CONFIRMED THE ADDITION U/S 68 WHEN THE AO MADE THE SAID ADDITION U/S 69A IT IS PERTINENT TO MENTION THAT THE PERUSAL OF THE ASSESSMENT ORDER INDICATES THAT THE AO HAS NOT MENTIONED ANY SPECIFIC PROVISION FOR MAKING THE IMPUGNED ADDITION IN THE A SSESSMENT ORDER. THE MERE FACT THAT THE AO IN THE ASSESSMENT ORDER HAS RECORDED IT I S SEEN FROM THE CAPITAL ACCOUNT THAT THE ASSESSEE HAS INTRODUCED JEWELLERY WORTH RS.10 6 5 880/- AS STATED IN PARA 4 OF THE SAID ORDER IN OUR VIEW RESULTS IN THE CONCLUSION THAT THE SAID ADDITION HAS BEEN PRESUMABLY MADE BY THE AO U/S 68 OF THE ACT. THE LD .CIT(A)S DECISION THAT THE ADDITION MADE BY AO WILL BE TREATED AS U/S 68 AND THE SAID M ODIFICATION OF THE ASSESSMENT ORDER NEITHER MAKES ANY DIFFERENCE NOR HAS THE EFFECT OF NULLIFYING THE ASSESSMENT ORDER. IN VIEW OF THE FACT THAT THE ALLEGED TRANSACTION OF GI FT IS NOT PROVED TO BE GENUINE WE FIND NO MERIT IN THE CONTENTION OF THE LD.AR ON THE PROPOSI TION OF LAW RELIED BY HIM ON THE BASIS OF VARIOUS DECISIONS. FOR THE REASONS AND DISCUSSIO NS AS AFOREMENTIONED WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF THE LD.CIT(A) CONF IRMING THE IMPUGNED ADDITION MADE BY THE AO AND THEREFORE THE SAME IS UPHELD. ITA NO. 1037/MUM/2012 EKTA MANOHAR TALREJA ASSESSMENT YEAR : 2008-09 4 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THI S 9 TH DAY OF OCTOBER 2013. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 09.10.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR E BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.