Sh. Neeraj Goyal, New Delhi v. ITO, New Delhi

ITA 1258/DEL/2010 | 2004-2005
Pronouncement Date: 11-10-2013 | Result: Allowed

Appeal Details

RSA Number 125820114 RSA 2010
Assessee PAN AAFPG4274M
Bench Delhi
Appeal Number ITA 1258/DEL/2010
Duration Of Justice 3 year(s) 6 month(s) 20 day(s)
Appellant Sh. Neeraj Goyal, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 11-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 11-10-2013
Date Of Final Hearing 10-10-2013
Next Hearing Date 10-10-2013
Assessment Year 2004-2005
Appeal Filed On 22-03-2010
Judgment Text
ITA NO. 1258/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI SHAMIM YAHYA ACCOUNTANT MEMBER AND SHRI C.M. GARG JUDICIAL MEMBER I.T.A. NO. 1258/DEL/2010 A.Y. : 200 4 - 0 5 SH. NEERAJ GOYAL C/O M/S RRA TAXINDIA D-28 SOUTH EXTENSION PART-I NEW DELHI- 110 049 (PAN: AAFPG4274M) VS. INCOME TAX OFFICER WARD-19(2) NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. ASHWANI TANEJA ADV. DEPARTMENT BY : MRS. RENUKA JAIN GUPTA SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXII NEW DELHI DATED 12.2.2010 PERTAINING TO ASSESSMENT YEAR 2004- 05. 2. THE GROUNDS RAISED READ AS UNDER:- I) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING THE ACTION OF LD. AO IN PASSING THE ASSESSMENT ORDER U/S. 147/143(3) THAT TOO WITHOUT SERVING THE MANDATORY NOTICE U/S. 148 AS PER LAW WITHOUT OBTAINING VALID APPROVAL AS PRESCRIBED UNDER THE LAW WITHOUT RECORDING VALID REASONS TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT AND ITA NO. 1258/DEL/2010 2 WITHOUT COMPLYING WITH THE MANDATORY CONDITIONS AS PRESCRIBED U/S. 147 TO 151 WITH REGARD TO THE REOPENING OF THE CASE U/S. 147 AND FRAMING OF THE ASSESSMENT U/S. 147/143 THERETO. II) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTA NCES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN ADDITION OF RS. 2 00 000/- AS INCOME FROM UNEXPLAINED SOURCE U/S. 68 OF THE I.T. ACT 1961 ON ACCOUNT OF GIFT RECEIVED FROM SH. VIPIN KUMAR. III) THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD . AO IN MAKING AN ADDITION OF RS. 2 00 000/- ON ACCOUNT OF GIFT RECEIVED IS ILLEGAL UNJUSTIFIED B AD IN LAW AND DESERVES TO BE QUASHED. IV) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN CHARGING INTEREST U/S. 234A 234B AND 234C OF THE I.T. ACT 1961. 3. APROPOS ISSUE OF ADDITION OF RS. 2 00 000/ APROPOS ISSUE OF ADDITION OF RS. 2 00 000/ APROPOS ISSUE OF ADDITION OF RS. 2 00 000/ APROPOS ISSUE OF ADDITION OF RS. 2 00 000/- -- - RECEIVED ON ACCOUNT RECEIVED ON ACCOUNT RECEIVED ON ACCOUNT RECEIVED ON ACCOUNT OF GIFT. OF GIFT. OF GIFT. OF GIFT. IN THIS CASE ASSESSEE FILED ITS RETURN OF INCOME DECLARING AN INCOME OF RS.69 650/- ON 31.10.2004 VIDE RECEIPT NO . 1933004952. THE ASSESSEE DECLARED INCOME FROM BUSINESS OF SHAR E TRADING INCOME FROM CAPITAL GAINS AND INCOME FROM OTHER SOU RCES. ASSESSING OFFICER RECEIVED AN INFORMATION FROM DIT (INV.)-I NEW DELHI VIDE LETTER NO.DIT (INV.)I/2006-07/AE/1543 D ATED 05.02.2007 THAT THE ASSESSEE HAD TAKEN BOGUS ACCOMMODATION ENT RY ITA NO. 1258/DEL/2010 3 AMOUNTING. TO RS.2 00 000/- FROM SHRI VIPIN KUMAR D URING THE YEAR UNDER CONSIDERATION AND INITIATED PROCEEDINGS U/S 1 47. THE ABOVE SAID AMOUNT RECEIVED ALLEGEDLY AS ACCOMMODATION ENT RY WAS CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE MAINTA INED WITH STATE BANK OF INDIA WAZIRPUR INDUSTRIAL ESTATE BRANCH D ELHI. THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS CONTEND ED THAT THIS AMOUNT WAS RECEIVED FROM SHRI VIPIN KUMAR VIDE CHEQ UE NO.169257 DATED 12.09.2003 DRAWN ON JAI LAKSHMI CO-OPERATIVE BANK LTD. FATEH PURI DELHI. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FURNISHED COPY OF AFFIDAVIT DECLARATION O F GIFT IT ACKNOWLEDGMENT FOR A.Y. 2002-03 AND PAN NUMBER OF S HRI VIPIN KUMAR. THE AO ISSUED SUMMON U/S 131 OF THE ACT DATE D 16.11.2007 FOR CROSS VERIFICATION. SHRI VIPIN KUMAR DID NOT TU RN UP. ASSESSING OFFICER RECEIVED A LETTER FROM THE APPELLANT ON 11. 12.2007 FURNISHING THEREIN THE GIFT DEED ON 13.03.2007. ASSESSING OFFI CER MADE THE ADDITION TAKING INTO CONSIDERATION THE FOLLOWING OB SERVATIONS: A) THE ASSESSEE HAS FURNISHED THE ASSESSMENT PARTICULA RS OF THE DONOR FOR THE A.Y. 2002-03 WHICH ARE NOT RELATED TO YEAR UNDER CONSIDERATION. B) GIFT DEED FILED DO NOT INDICATE ANY RELATIONSHIP O F THE ASSESSEE WITH THE DONOR. C) COPY OF BANK STATEMENT OF SHRI VIPIN KUMAR WAS NOT FILED. D) IT HAS NOT BEEN EXPLAINED AS TO WHAT WAS THE OCCASI ON ON WHICH SUCH GIFT WAS MADE TO HER. 4. UPON ASSESSEES APPEAL LD. CIT(A) CONFIRMED THE ASSESSING OFFICERS ACTION. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. ITA NO. 1258/DEL/2010 4 6. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED THE RECORDS. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSE SSEE HAS FURNISHED ALL THE RELEVANT DETAILS TO ESTABLISH TH E VERACITY OF THE GIFT RECEIVED. IN THIS REGARD HE REFERRED TO THE DO CUMENTS SUBMITTED BEFORE THE LD. CIT(A). THE DOCUMENTS WERE SUBMIT TED AS UNDER:- PB10 IS A LETTER TO LD. AO IN WHICH IT WAS EXPLAIN ED THAT THE ASSESSEE RECEIVED A GIFT OF RS. 2 00 000/- FROM MR. VIPIN KUMAR. PB18 IS THE AFFIDAVIT OF MR. VIPIN KUMAR. PB19 IS PAN CARD OF MR. VIPIN KUMAR. PB 20 TO 24 IS THE COPY OF IT AND WT RETURNS AND CO MPUTATION OF INCOME AND WEALTH OF MR. VIPIN KUMAR TO SHOW THA T HE WAS INCOME TAX ASSESSEE. PB25 IS ANOTHER LETTER TO LD. AO ALONG WITH WHICH C OPY OF BANK STATEMENT OF THE DONOR AND PHOTOCOPY OFF THE GIFT D EED WAS FILED. PB26 IS THE COPY OF THE GIFT DEED. PB27 IS THE COPY OF THE BANK STATEMENT OF THE DONOR . 6.1 FROM THE ABOVE LD. COUNSEL OF THE ASSESSEE SUBM ITTED THAT ASSESSEE HAS RECEIVED A GIFT OF RS. 2 00 000/- FROM SHRI VIPIN KUMAR. ASSESSEE HAS SUBMITTED THE AFFIDAVIT OF SHRI VIPIN KUMAR THE GIFT DEED HAS DULY BEEN SUBMITTED PAN CARD OF THE DON OR HAS BEEN SUBMITTED; COPY OF IT & WT RETURNS AND COMPUTATION OF INCOME AND WEALTH OF THE DONOR WAS ALSO SUBMITTED TO PROVE THA T HE WAS AN INCOME TAX ASSESSEE. ASSESSEE HAS ALSO SUBMITTED C OPY OF BANK STATEMENT OF THE DONOR AND PHOTO COPY OF THE GIFT D EED. THUS WE FIND THAT ALL THE NECESSARY PARTICULARS TO ESTABL ISH THE IDENTITY ITA NO. 1258/DEL/2010 5 CREDITWORTHINESS AND GENUINENESS OF THE DONOR HAS B EEN SUBMITTED BY THE ASSESSEE. THUS THE ASSESSEE HAS DISCHARG ED THE INITIAL ONUS. THE AO HAS NOT BEEN ABLE TO ESTABLISH THAT T HE GIFT WAS A BOGUS ACCOMMODATION ENTRY. 6.2 IN THIS REGARD WE REFER THE DECISION OF THE H ONBLE APEX COURT IN THE CASE OF C.I.T. VS. ORISSA CORPORATION PVT. L TD. 159 ITR 78 WHEREIN IT HAS HELD THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WA S IN THE KNOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WE RE INCOME TAX ASSESSEES. THEIR INDEX NUMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE APART FROM ISSUING NOTICES UNDER SECTION 1 31 AT THE INSTANCE OF THE RESPONDENT DID NOT PURSUE THE MATT ER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CREDITWORTH Y. THERE WAS NO EFFORT MADE TO PURSUE THE SO CALLED ALLEGED CREDITO RS. IN THOSE CIRCUMSTANCES THE RESPONDENT COULD NOT DO ANY THIN G FURTHER. IN THE PREMISES IF THE TRIBUNAL CAME TO THE CONCLUSION TH AT THE RESPONDENT HAS DISCHARGED THE BURDEN THAT LAY ON IT THEN IT C OULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. IF THE CONCLUSION WAS BASED ON SOME EVIDE NCE ON WHICH A CONCLUSION COULD BE ARRIVED AT NO QUESTION OF LAW AS SUCH AROSE. THE HIGH COURT WAS RIGHT IN REFUSING TO STATE A CAS E. 7. THUS WE FIND THAT THE ASSESSEE HAS SUBMITTED A LL THE NECESSARY DOCUMENTS WHICH WERE REQUIRED. AS IS EVI DENT FROM THE HONBLE APEX COURT DECISION NON-TURNING UP OF THE DONOR ON ASSESSING OFFICERS SUMMONS CANNOT BE FATAL TO MAK E THE GIFT BOGUS. ACCORDINGLY IN THE BACKGROUND OF THE AFORES AID DISCUSSIONS AND PRECEDENT WE SET ASIDE THE ORDERS OF THE AUTHO RITIES BELOW ON THIS ISSUE AND HOLD THAT THE ASSESSEE HAS PROPERLY EXPLAINED THE GIFT OF RS. 2 00 000/- AND ADDITION MADE IN THIS REGARD IS DELETED. ITA NO. 1258/DEL/2010 6 8. THE OTHER GROUND OF APPEAL RAISED BY THE LD. COU NSEL OF THE ASSESSEE RELATE TO VALIDITY OF REOPENING U/S. 147 I N THIS CASE. WE FIND THAT ON MERITS WE HAVE ALREADY ALLOWED THE A SSESSEES APPEAL AS ABOVE AND DISCUSSION ON THE ISSUE OF REOPENING I S ONLY OF ACADEMIC INTEREST. HENCE WE ARE NOT PROCEEDING WITH THE SAME. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/10/2013. SD/- SD/- [ [[ [C.M. GARG C.M. GARG C.M. GARG C.M. GARG] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 11/10/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NO. 1258/DEL/2010 7