ITO, Baraut v. Sh. Vipul Gupta (Legal Heir), Khekra

ITA 2270/DEL/2010 | 2004-2005
Pronouncement Date: 07-01-2011 | Result: Allowed

Appeal Details

RSA Number 227020114 RSA 2010
Assessee PAN AASPG6400E
Bench Delhi
Appeal Number ITA 2270/DEL/2010
Duration Of Justice 7 month(s) 24 day(s)
Appellant ITO, Baraut
Respondent Sh. Vipul Gupta (Legal Heir), Khekra
Appeal Type Income Tax Appeal
Pronouncement Date 07-01-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted H
Tribunal Order Date 07-01-2011
Date Of Final Hearing 25-10-2010
Next Hearing Date 25-10-2010
Assessment Year 2004-2005
Appeal Filed On 14-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH H DELHI ] BEFORE SHRI A. D. JAIN JM AND SHRI K. D. RANJAN AM I. T. A. NO. 2270 (DEL) OF 2010 ASSESSMENT YEAR : 2004-05. THE INCOME-TAX OFFICER SHRI VIPUL GUPTA [LEGAL HEIR] OF LATE SHRI SUBHASH CHAND GUPTA B A R A U T. PROP. M/S. VISHAL TEXTILES MANDI GANDHI GANJ [ B A G H P A T ]. K H E K R A [BAGHPA T]. PAN / GIR NO. AAS PG 6400 E. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI P. S. KASHYAP C. A.; DEPARTMENT BY : MS. ANUSHA KHURA NA SR. D. R.; O R D E R. PER K. D. RANJAN AM : THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 200 4-05 ARISES OUT OF ORDER OF THE LD. CIT (APPEALS) MEERUT. 2. THE GROUND OF APPEAL RAISED BY THE REVENUE IS RE PRODUCED AS UNDER :- ' WHETHER IN THE FACTS AND CIRCUMSTANCES OF T HE CASE THE LD. CIT (APPEALS) WAS JUSTIFIED IN DELETING THE ADDITION THOUGH THE A SSESSEE FAILED TO PROVE IDENTITY GENUINENESS AND CREDITWORTHINESS OF DONOR OF RS.10 LAKHS ? 2 I. T. A. NO. 2270 (DEL) OF 2010 3. THE ONLY ISSUE IN THE REVENUES APPEAL RELATES T O DELETING THE ADDITION ON ACCOUNT OF GIFTS. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAD RECEIVED GI FT FROM TWO PERSONS NAMELY SHRI NARENDRA KUMAR GOEL OF RS.5 00 000/- AND SHRI ASHOK KUMAR GO EL OF RS.5 00 000/-. BEFORE THE ASSESSING OFFICER THE ASSESSEE DID NOT PRODUCE THE SAID DONORS FOR EXAMINATION. HE THEREFORE CAME TO THE CONCLUSION THAT THE IDENTITY OF THE DON ORS CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION WAS NOT PROVED. THE AO THEREFORE ADD ED THE AMOUNT OF RS.10 LAKHS UNDER SECTION 68 OF THE ACT. 4. ON APPEAL THE ISSUE WAS REMANDED TO THE ASSESSI NG OFFICER. THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS EXAMINED SHRI NARENDRA KUMAR GOE L WHO STATED TO HAVE GIFTED THE AMOUNT OUT OF NATURAL LOVE AND AFFECTION. HE PROVIDED THE COPY OF PAN RATION CARD AND BANK ACCOUNT. SINCE THE AO HAD NOT COMMENTED ADVERSELY ON THE IDE NTITY GENUINENESS OR CREDITWORTHINESS OF THE DONOR SHRI NAREHDRA KUMAR GOEL THE LD. CIT (A PPEALS) ACCEPTED THE GIFTS AS GENUINE. AS REGARDS THE OTHER DONOR SHRI ASHOK KUMAR GOEL WHO DID NOT APPEAR BEFORE THE ASSESSING OFFICER AS HE WAS STATED TO BE IN AUSTRALIA. HOWEV ER HIS CA FILED COPIES OF HIS PAN INCOME-TAX RETURN AND BALANCE SHEET OF SHRI ASHOK KUMAR GOEL. THE AO HAD NOT COMMENTED ADVERSELY ON IDENTITY GENUINENESS OR CREDITWORTHINESS OF SHRI A SHOK KUMAR GOEL. HE THEREFORE ACCEPTED THE GIFT OF RS.5 LAKHS FROM SHRI ASHOK KUMAR GOEL AS GE NUINE. 5. BEFORE US THE LD. SR. DR SUBMITTED THAT THE OCC ASION OF THE GIFT HAS NOT BEEN MENTIONED. SHE SUBMITTED THAT THE ASSESSEE HAD NOT PRODUCED TH E DONORS BEFORE THE AO AND THEREFORE THE AO COULD NOT EXAMINE THE MATTER WITH REGARD TO THE IDENTITY THE GENUINENESS AND CREDITWORTHINESS OF THE DONORS. SHE ALSO SUBMITTED THAT THE LD. CIT (A) HAD SIMPLY ACCEPTED THE CONTENTION OF THE ASSESSEE WITHOUT RECORDING HIS FI NDINGS ABOUT THE GENUINENESS AND CREDITWORTHINESS OF THE SAID DONORS. SHE THEREFORE REQUESTED THAT THE MATTER SHOULD BE REMANDED BACK TO THE AO. ON THE OTHER HAND THE LD. AR OF T HE ASSESSEE SUPPORTED THE ORDER OF THE LD. CIT (APPEALS). 3 I. T. A. NO. 2270 (DEL) OF 2010 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE ASSESSMENT ORDER WE FIND THAT THE ASSESSEE HAD NOT PRODUCED THE DONORS BEFORE THE AO. THE LD. CIT (A) WHILE DECIDING THE ISSUE IN FAVOUR OF T HE ASSESSEE HAD NOT EXAMINED THE MATTER AND ALSO HAD NOT RECORDED FINDINGS AS TO WHY THE GIFTS WERE GENUINE. MERELY BECAUSE THE AO HAD NOT GIVEN ANY COMMENTS IN THE REMAND REPORT WOULD NOT M EAN THAT THE LD. CIT (A) WILL NOT PASS A SPEAKING ORDER SATISFYING HIMSELF WITH THE GENUINEN ESS OF THE GIFT AND CREDITWORTHINESS OF THE CREDITORS. SINCE THE ISSUE HAS NOT BEEN EXAMINED BY THE LD. CIT (A) AND THE ASSESSEE HAD NOT PRODUCED THE DONORS BEFORE AO WE FEEL IT PROPER TO SET ASIDE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTIONS TO EXAMINE THE ISSUE OF GIFTS R ECEIVED AFRESH AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. WE ORDER AC CORDINGLY. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 07 TH JANUARY 2011. SD/- SD/- [ A. D. JAIN ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07 TH JANUARY 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT 4. CIT (APPEALS) 5. DR ITAT NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR ITAT. 4 I. T. A. NO. 2270 (DEL) OF 2010