ITO 19(3)(1), MUMBAI v. DELBA A BESTONSO, MUMBAI

ITA 1814/MUM/2009 | 2005-2006
Pronouncement Date: 15-10-2010 | Result: Allowed

Appeal Details

RSA Number 181419914 RSA 2009
Assessee PAN AHIBP2246C
Bench Mumbai
Appeal Number ITA 1814/MUM/2009
Duration Of Justice 1 year(s) 6 month(s) 26 day(s)
Appellant ITO 19(3)(1), MUMBAI
Respondent DELBA A BESTONSO, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-10-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted D
Tribunal Order Date 15-10-2010
Date Of Final Hearing 09-04-2010
Next Hearing Date 09-04-2010
Assessment Year 2005-2006
Appeal Filed On 20-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI R.S.SYAL AM AND SHRI VIJAY PAL RAO JM ITA NO.1814/MUM/2009 : ASST. YEAR 2005-2006 THE INCOME TAX OFFICER WARD 19(3)(1) MUMBAI. VS. MRS.DELBA A.BESTONSO B BLOCK FLAT NO.22 SARITA APARTMENT 218 B.J.ROAD BANDRA (WEST) MUMBAI 400 050. PA NO.AHIBP2246C. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MOHANTY RESPONDENT BY : SHRI HITESH M.SHAH O R D E R PER R.S.SYAL AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 12.01.2009 IN RELATION TO THE ASSESSMENT YEAR 2005-2006. 2. THE ONLY ISSUE IS AGAINST THE DELETION OF ADDITI ON AMOUNTING TO RS.13 57 265 MADE BY THE ASSESSING OFFICER BY HOLDING THE GIFT R ECEIVED BY THE ASSESSEE FROM NRE FRIEND AS BOGUS. THE REVENUE IS ALSO AGGRIEVED AGAINST THE ADMISSION OF ADDITIONAL EVIDENCE IN CONTRAVENTION OF PROVISIONS OR RULE 46A. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE T HAT THE ASSESSEE CLAIMED TO HAVE RECEIVED NRE GIFT OF RS.13 57 265 FROM THE HUSBAND OF HER CHILDHOOD FRIEND MR.BRIAN FERNANDES. IN SUPPORT OF THIS GIFT THE ASS ESSEE ONLY FILED COPY OF MEMORANDUM FROM MRS.VENETIA FERNANDES WIFE OF THE DONOR. THE ASSESSEE WAS CALLED UPON TO SUBMIT SUPPORTING DOCUMENTARY EVIDEN CE IN THE FORM OF COPY OF NRE ACCOUNT COPY OF BANK STATEMENT COPY OF PASSPO RT OF DONOR PROOF OF ITA NO.1814/MUM/2009 MRS.DELBA A.BESTONSO. 2 REMITTANCE FROM ABROAD ETC. DESPITE THE SPECIFIC RE QUEST MADE BY THE ASSESSING OFFICER TO PRODUCE THESE EVIDENCE THE ASSESSEE FAI LED TO FURNISH THE SAME. THE ASSESSING OFFICER HELD THE GIFT TO BE BOGUS AND MAD E ADDITION FOR THE SAID U/S.68 OF THE ACT. THE LEARNED CIT(A) DELETED THE ADDITION BY CONSIDERING THE ADDITIONAL EVIDENCES FILED BEFORE HIM IN THE FORM OF COPY OF P ASSPORT. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS NOTED THAT THE ASSESSEE CLAIMED TO HAV E RECEIVED GIFT FROM MR.BRIAN FERNANDES WHO WAS STATED TO BE HUSBAND OF ASSESSEE S FRIEND MRS.VENETIA FERNANDES. NO EVIDENCE WORTH THE NAME EXCEPT COP Y OF MEMORANDUM FROM MRS. VENETIA FERNANDES WAS FILED AT THE ASSESSMENT STAG E. IN VIEW OF THESE FACTS THE ADDITION WAS MADE. THE LEARNED CIT(A) HOWEVER R ELYING ON THE COPY OF PASSPORT OF MRS.VENETIA FERNANDES DELETED THE ADDITION. WE ARE UNABLE TO ENDORSE THE VIEW OF THE LEARNED CIT(A) FOR THE OBVIOUS REASON THAT T HE GIFT WAS RECEIVED FROM MR. BRIAN FERNANDES AND NOT FROM MRS.VENETIA FERNANDES. IN ORDER TO ESTABLISH THE GENUINENESS OF THE GIFT THE ONUS WAS UPON THE ASSES SEE TO ESTABLISH THE IDENTITY AND CAPACITY OF THE DONOR ALONG WITH THE GENUINENESS OF THE TRANSACTION. THE PASSPORT OF MRS.VENETIA FERNANDES (WIFE OF DONOR) COULD NOT BE HELD TO BE A VALID DOCUMENT TO PROVE THE GENUINENESS OF THE GIFT RECEIVED FROM THE DONOR. THE LEARNED CIT(A) WENT ON TO HOLD THAT IT WAS THE DUTY OF THE A.O. TO INVESTIGATE FURTHER IF HE HAD ANY DOUBT ABOUT THE CREDITWORTHINESS OF THE DONOR AND B RING MORE MATERIAL ON RECORD SO AS TO JUSTIFY ITS REJECTION. WE ARE NOT INCLINED TO ACCEPT THIS VIEW AS IT IS PALPABLE THAT THE ASSESSING OFFICER REQUESTED THE ASSESSEE T O FURNISH DOCUMENTARY EVIDENCE IN THE FORM OF COPY OF NRE ACCOUNT STATEMENT COPY OF BANK ACCOUNT STATEMENT AND COPY OF PASSPORT OF THE DONOR ALONG WITH PROOF OF R EMITTANCE FROM ABROAD WHICH WAS NOT COMPLIED WITH BY THE ASSESSEE. THIS FINDING OF FACT RECORDED BY THE AO HAS NOT BEEN CONTROVERTED BY THE LD. CIT(A). FURTHER NO EVIDENCE HAS BEEN FILED BEFORE US TO DEMONSTRATE THAT THE ASSESSEE DID COMP LY WITH THE REQUIREMENTS OF THE AO IN ABOVE TERMS. UNDER SUCH CIRCUMSTANCES WE FIND THAT THE LEARNED CIT(A) ITA NO.1814/MUM/2009 MRS.DELBA A.BESTONSO. 3 CANNOT BE HELD AS JUSTIFIED IN ADMITTING SOME ADD ITIONAL EVIDENCE WITHOUT CALLING FOR THE REMAND REPORT FROM THE A.O. MORE PARTICULA RLY ON THE POINTS WHICH WERE ALREADY TAKEN NOTE OF BY THE ASSESSING OFFICER. UN DER SUCH CIRCUMSTANCES WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF A.O. FOR TAKING A FRESH DECISION AS PER LAW AFTER ALLOWING A REASONAB LE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLESS TO SAY THE ASSESSEE WILL BE BOUND TO FURNISH ALL THE NECESSARY DOCUMENTS CALLED FOR BY THE AO IN SUPPORT OF THE GENUINENESS OF THE GIFT. 5. IN THE RESULT THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 15 TH DAY OF OCTOBER 2010. SD/- SD/- ( VIJAY PAL RAO ) ( R.S.SYAL ) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI : 15 TH OCTOBER 2010. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XIX MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI.