Sandeep Kumar Palta,, Manimajra v. ITO,, Chandigarh

ITA 244/CHANDI/2009 | 2000-2001
Pronouncement Date: 21-04-2014 | Result: Dismissed

Appeal Details

RSA Number 24421514 RSA 2009
Assessee PAN FFEMA1999F
Bench Chandigarh
Appeal Number ITA 244/CHANDI/2009
Duration Of Justice 5 year(s) 29 day(s)
Appellant Sandeep Kumar Palta,, Manimajra
Respondent ITO,, Chandigarh
Appeal Type Income Tax Appeal
Pronouncement Date 21-04-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 21-04-2014
Date Of Final Hearing 01-04-2014
Next Hearing Date 01-04-2014
Assessment Year 2000-2001
Appeal Filed On 23-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R. SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA JUDICIAL MEMBER ITA NO. 242/CHD/2009 ASSESSMENT YEARS : 2000-01 KRISHAN KUMAR PALTA VS. I.T.O. WARD 1(1) SCF 494 MOTOR MARKET CHANDIGARH MANIMAJRA CHANDIGARH TA NO. 244/CHD/2009 ASSESSMENT YEARS : 2000-01 SANDEEP KUMAR PALTA ` VS. I.T.O. WARD 1(1) SCF 494 MOTOR MARKET CHANDIGARH MANIMAJRA CHANDIGARH (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AMAR PARTI RESPONDENT BY: SHRI M ANJIT SINGH DATE OF HEARING 1.4.2014 DATE OF PRONOUNCEMENT 21.4.2014 O R D E R PER T.R. SOOD A.M THESE APPEALS ARE DIRECTED AGAINST THE ORDER DATED 23.1.2009 OF THE LD CIT(A) CHANDIGARH. ISSUES IN T HESE APPEALS ARE COMMON AND THE APPEALS WERE HEARD TOGET HER SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED O RDER FOR THE SAKE OF CONVENIENCE. ITA NO. 242/CHD/2009 KRISHAN KUMAR PALTA 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS: 1 BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS A ND LAW WHEREBY THERE WAS A PRONOUNCEMENT OF THE JUDGMENT O N THE DATE OF HEARING AND THE PRESENT ORDER IS THE REASONING A SSIGNED TO THE SAID CONCLUSION. EVEN FURTHER THE GROUND OF APPEAL NO. 4 READ WITH THE WRITTEN PLEADINGS AT PAPER BOOK PAGE 2 26 -29 DOES NOT FLOW FROM THE ORDER UNDER CHALLENGE. 2 BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS AN D LAW SINCE THERE BEING DISCRIMINATION FOR THE LIKELY PLA CED OTHER ASSESSES WITH REGARD TO THE ADDITION OF RS. 10 00 0 00/-. EVEN FURTHER PARAGRAPH 21 OF THE ORDER DATED 23.1.2009 F AILS TO DISCERN 2 AMONGST THE PROVISIONS OF SECTION 68 AND OR 69 WH ICH A WRONG FINDING RECORDED. 3 BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS AN D LAW ON THE GROUND OF NOT HAVING RECORDED THE FINDINGS ON E VIDENCE AND MERITS OF THE MATERIAL ON RECORD WITH REGARD TO THE ISSUES UNDER CHALLENGED IN ITS TRUE SENSE AND SPRITS BY TAKING T HE SAME TO A LOGICAL END. EVEN FURTHER THE QUANTUM OF ADDITION IS UNDER CHALLENGED. 3 AFTER HEARING BOTH THE PARTIES WE FIND THAT BAJAJ GROUP WAS GIVING BOGUS GIFTS TO VARIOUS PERSONS AND THER EFORE INVESTIGATION WING OF THE INCOME -TAX DEPARTMENT IN VESTIGATED THE MATTER. STATEMENT OF SHRI ABINASHI LAL BAJAJ W AS RECORDED WHO STATED THAT HE WAS WORKING AS STORE KEEPER WITH PUBLIC HEALTH DEPARTMENT UT ADMINISTRATION CHANDIGARH A ND RETIRED ON 1.7.1996. HE WAS DRAWING A PENSION OF RS. 4000 PM. AFTER RETIREMENT HE WENT TO USA TO JOIN THE BUSINESS OF H IS SON SHRI SURESH BAJAJ WHO WAS ALREADY IN USA FOR THE LAST 10 YEARS. IN RESPECT OF VARIOUS TRANSACTIONS IN HIS NRE ACCOUNT NO. 1062 WITH VIJAY BANK SECTOR 17 CHANDIGARH IT WAS STATE D THAT PAY ORDERS WERE PAID TO VARIOUS PERSONS THROUGH ONE SHR I RAMESH KUMAR. PAY ORDERS WERE ISSUED IN LIEU OF CASH RECE IVED FROM SO CALLED DONEES AND HE HAS NOT GIVEN ANY LOAN OR G IFT TO ANY PERSON OUT OF NRE ACCOUNT NO. 1062 WITH VIJAY BANK CHANDIGARH. THEREAFTER A NOTICE U/S 148 WAS ISSUED. ORIGINALLY IT WAS STATED THAT ORIGINAL RETURN FILED BY THE AS SESSEE MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U /S 148. FURTHER IT WAS STATED THAT THE ASSESSEE HAD RECEIVE D CASH GIFT OF RS. 10 LAKHS FROM ABINASHI LAL BAJAJ WHO WAS A P ERSONAL FRIEND FOR THE LAST 25 YEARS. THE GIFT WAS MADE BY MR BAJAJ OUT OF LOVE AND AFFECTION. HOWEVER THE ASSESSING OFFI CER VIDE LETTER DATED 9.1.2006 ASKED THE ASSESSEE TO PROVE T HE GIFTS. THE CONTENTS OF THE LETTER HAVE BEEN EXTRACTED BY T HE ASSESSING OFFICER AS UNDER: 3 YOU HAVE RECEIVED A GIFT AMOUNTING TO RS. 10 LAKHS FROM ABINASHI LAL BAJAJ. THE STATEMENT OF BAJAJ WAS RECORDED BY THE ADIT (INV) II CHANDIGARH. IN HIS STATEMENT SHRI BAJAJ HAS ST ATED THAT HE HAS NOT MADE ANY GIFT TO ANY PERSONS; ONLY PAY ORDER HA S BEEN GIVEN IN LIEU OF CASH. IT IS QUITE CLEAR FROM THE ABOVE FAC TS THE GIFT IS NOT GENUINE. YOU ARE REQUESTED TO FURNISH THE COMPLETE POSTAL ADDRESS OF THE PERSON FROM WHOM GIFT HAS BEEN RECEI VED OR PRODUCE THE DONOR TO VERIFY THE GENUINENESS OF THE GIFT ON THE DATE OF HEARING I.E. 18.1.2006. AFTER RECEIVING THE ABOVE SAID LETTER THE ASSESSEE SURRENDERED A SUM OF RS. 10 LAKHS AND PAID THE TAXES ACCORDINGL Y. 4 LATER ON THE APPEAL WAS FILED BEFORE THE LD. CIT( A) BELATEDLY. IT WAS EXPLAINED THAT THE ASSESSEE HAS BASICALLY SURRENDERED THE AMOUNT WITH THE CONDITION THAT NO P ENALTY WOULD BE LEVIED. BUT WHEN THE ASSESSEE WAS LEVIED A PENALTY HE PREFERRED TO FILED AN APPEAL. THE LD. CIT(A) RE FERRED TO THE DECISION OF THE TRIBUNAL IN CASE OF JCM COAL GROUP VS. ACIT ITA NO. 708/CHD/2003 AND EXTRACTED THE FOLLOWING PA RA: IF THE AFORESAID JUDICIAL PRONOUNCEMENT RELIED UPO N BY BOTH THE LD REPRESENTATIVES ARE KEPT IN JUXTAPOSITION WITH THE FACTS OF THE PRESENT APPEAL BEFORE US IT IS CLEARLY OOZING OUT THAT NO SUFFICIENT OR GOOD REASON HAS BEEN EXPLAINED BITE ASSESSEE TO CONDONE THE DELAY AS WE HAVE DISCUSSED IN THE PRECEDING PARAS THE ASSESSEE HAS NOT EXPLAINED THE DELAY OF EACH MONTH IF NOT O F NOT EACH DAY. EVEN IF WE TAKE A LIBERAL APPROACH IN CONDONING THE DELAY FOR THE SUBSTANTIAL CAUSE OF JUSTICE STILL THE ASSESSEE IS SUPPOSE TO EXPLAIN THE DELAY WITH THE HELP OF DOCUMENTARY EVID ENCE WHICH HAS NOT BEEN DONE IN THE PRESENT APPEAL OTHERWISE THER E WILL BE NO MEANING OF KEEPING THE SECTION / PROVISION IN THE L IMITATION ACT. FROM THE PERUSAL OF RECORD RATHER IT CAN BE SAID TH AT THE ASSESSEE WAS SLEEPING OVER ITS RIGHTS. IT IS ALSO NOT THE C ASE OF THE ASSESSEE THAT WRONG ADVISE WAS EXTENDED TO IT OR TH ERE IS ANY BONAFIDE MISTAKE. IN VIEW OF THESE FACTS WE DISMI SS THE CONDONATION APPLICATION FILED BY THE ASSESSEE. CON SEQUENTLY APPEAL OF THE ASSESSEE IS DISMISSED IN LIMINE. FOLLOWING THE ABOVE THE DELAY WAS NOT CONDONED. ON MERIT ALSO THE LD. CIT(A) DID NOT FIND FORCE IN THE SUBMI SSIONS OF THE ASSESSEE AND REFERRED TO THE DECISION OF HON'BLE SU PREME COURT IN CASE OF CIT V. P. MOHANKALA (S.C) 291 ITR 278 AND DISMISSED THE APPEAL OF THE ASSESSEE. 5 BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE MAINL Y SUBMITTED THAT ORIGINALLY THE ASSESSEE SURRENDERED THE AMOUNT OF GIFT BECAUSE THE DONOR WAS NOT COOPERATIVE. HOW EVER THE 4 AMOUNT WAS SURRENDERED WITH A CONDITION THAT NO PEN ALTY WOULD BE IMPOSED. BUT WHEN THE PENALTY WAS IMPOSED THE A SSESSEE FILED AN APPEAL ON MERIT ALSO. THEREFORE SAME SHOU LD BE TREATED AS A REASONABLE CAUSE. ON MERITS THE LD. C OUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE RECEIVED A GIFT BY WAY OF PAY ORDER AND HAS ALSO FILED COPY OF THE AFF IDAVIT OF THE DONOR. LATER ON THE STATEMENT OF THE DONOR WAS REC ORDED BEHIND THE BACK OF THE ASSESSEE WITHOUT GIVING CROS S EXAMINATION AND THEREFORE THE ASSESSMENT IS NOT JUS TIFIED. 6 ON THE OTHER HAND THE LD. D.R. FOR THE REVENUE SUBMITTED THAT HE ASSESSMENT ORDER WAS PASSED ON 28 .2.2006 IN WHICH PENALTY PROCEEDINGS WERE ALSO INITIATED. SINCE THE ASSESSEE HAD NOT FILED ANY APPEAL AND THEREFORE THE RE WAS NO REASONABLE CAUSE FOR FILING THE APPEAL LATE. ON ME RITS ALSO HE STRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE GIFT HAS BEEN RECEIVED FROM NON RELATIVE A ND THEREFORE SAME CAN NOT BE ACCEPTED. IN ANY CASE THE ASSESSEE HAS HIMSELF SURRENDERED THE AMOUNT THEREFORE THE ASSESS EE HAS NOT RIGHT TO FILE AN APPEAL AGAINST THE AGREED ADDITION . HE ALSO RELIED ON THE DECISION OF HON'BLE SUPREME COURT IN CASE OF CIT V. P. MOHANKALA (SUPRA) AND SMT. USHA RANI VS. CIT 301 ITR 121 (PH). 7 WE HAVE GONE THROUGH THE RIVAL SUBMISSIONS CAREFU LLY. IN THIS CASE ACCORDING TO THE LD. CIT(A) THE DEMAND NO TICE WAS SERVED ON 28.2.2006 AND APPEAL HAS BEEN FILED ON 9. 1.2007 THEREFORE SAME WAS LATE BY 270 DAYS. WE DO NOT FIN D FORCE IN THE STATEMENT OF THE LD. COUNSEL THAT THE APPEAL WA S FILED ONLY WHEN THE ASSESSEE RECEIVED PENALTY ORDER. IF THE AS SESSEE WANTED TO WAIT FOR PENAL CONSEQUENCES THEN WE FIND PENALTY U/S 5 271(1)(C) WAS INITIATED IN THE ASSESSMENT ORDER ITS ELF WHICH HAS BEEN PASSED ON 28.2.2006 WHICH MEANS THE ASSESSEE W AS AWARE OF THE PENAL CONSEQUENCES AT THAT TIME OF POI NT. IN ANY CASE ONCE ANY ADDITION IS MADE ON AGREED BASIS THEN NO APPEAL SHOULD HAVE BEEN FILED. THEREFORE THE LD. CIT(A) H AS CORRECTLY REJECTED THE PRAYER FOR CONDONATION OF DELAY. 8 AS FAR AS ISSUE REGARDING MERIT IS CONCERNED IT I S NOT CORRECT THAT THE STATEMENT OF THE DONOR WAS RECORDE D BEHIND THE BACK OF THE ASSESSEE. IN FACT THE STATEMENT OF THE DONOR SHRI ABINASHI LAL BAJAJ WAS RECORDED BY INVESTIGATI ON WING AND SAME WAS CONFRONTED TO THE ASSESSEE WHICH FACT BECO MES CLEAR FROM THE LATTER WRITTEN BY THE ASSESSING OFFICER ON 9.1.2006 WHICH IS AS UNDER: YOU HAVE RECEIVED A GIFT AMOUNTING TO RS. 10 LAKHS FROM ABINASHI LAL BAJAJ. THE STATEMENT OF BAJAJ WAS RECORDED BY THE ADIT (INV) II CHANDIGARH. IN HIS STATEMENT SHRI BAJAJ HAS ST ATED THAT HE HAS NOT MADE ANY GIFT TO ANY PERSONS; ONLY PAY ORDER HA S BEEN GIVEN IN LIEU OF CASH. IT IS QUITE CLEAR FROM THE ABOVE FAC TS THE GIFT IS NOT GENUINE. YOU ARE REQUESTED TO FURNISH THE COMPLETE POSTAL ADDRESS OF THE PERSON FROM WHOM GIFT HAS BEEN RECEI VED OR PRODUCE THE DONOR TO VERIFY THE GENUINENESS OF THE GIFT ON THE DATE OF HEARING I.E. 18.1.2006. THEREFORE IT IS CLEAR THAT THE ASSESSEE WAS CONFRON TED WITH THE STATEMENT GIVEN BY SHRI ABINASHI LAL BAJAJ BEFORE T HE INVESTIGATION WING. THERE AFTER THE ASSESSEE VIDE L ETTER DATED 20.2.2006 STATED AS UNDER: 1 THAT DURING THE PERIOD RELEVANT TO ASSESSMENT YE AR 2000- 01 I RECEIVED A GIFT FOR RS. 10 LAKHS FROM ABNASHI LAL BAJAJ S/O SHRI B.D. BAJAJ R/O H NO. 3046 SECTOR 20D CHANDIG ARH THROUGH PAY ORDER WHICH WAS CREDITED TO MAY SAVING ACCOUNT NO. 1127 WITH PNB MANIMAJRA. COPY OF THE SAID BANK STATEMENT GIF T DEED DULY SIGNED BY THE DONOR AND A COPY OF THE AFFIDAVIT EXE CUTED BY THE SAID DONOR TO THIS EFFECT HAS ALREADY BEEN SUBMITTE D. 2 THAT UNFORTUNATELY NOW THE DONOR IS NOT COOPERATI NG WITH US IN THE INCOME TAX PROCEEDINGS. THEREFORE TO AVOID LITIGATION AND PURCHASE PEACE I HEREBY SURRENDER RS. 10 LAKHS AS M Y INCOME FOR THE ASSESSMENT YEAR 2000-01. SUBJECT TO NO PENAL ACTION UNDER THE PROVISIONS OF THE INCOME TAX ACT IN VIEW OF THE ABOVE DISCUSSION AND ALSO FACTS OF T HE CASE THE AMOUNT OF RS. 10 LAKHS SHOWN AS GIFTS IS TREATED AS UNDISCLOSED 6 INCOME WHICH THE ASSESSEE FAILED TO PROVE THE GENU INENESS OF THE GIFTS AND ADDED TOWARDS THE TAXABLE INCOME. FROM THE ABOVE IT BECOMES CLEAR THAT THE ASSESSEE H AS SURRENDERED THE AMOUNT AFTER BEING FULLY CORNERED A ND THEREFORE ONCE THE ADDITION HAS BEEN MADE ON THE BA SIS OF ADMISSION NO APPEAL IS MAINTAINABLE. IN ANY CASE T HE ASSESSEE HAS NOT BEEN ABLE TO SHOW ANY RELATIONSHIP WITH THE DONOR AND THEREFORE THERE CAN NOT BE ANY LOVE AND AFFECTION W ITH THE NON RELATIVE AND THE ASSESSEE HAS NOT PRODUCED ANY EVID ENCE TO SHOW CLOSE RELATIONSHIP BETWEEN THE ASSESSEE AND AB INASHI LAL BAJAJ. THEREFORE THE DECISION OF HON'BLE SUPREME C OURT IN CASE OF CIT V. P. MOHANKALA (SUPRA) AND HON'BLE PUN JAB AND HARYANA HIGH COURT IN CASE OF SMT. USHA RANI VS. C IT (SUPRA) ARE CLEARLY APPLICABLE TO THE FACTS OF THE CASE. I N VIEW OF THIS WE FIND NOTHING WRONG WITH THE ORDER OF THE LD. CIT (A) AND CONFIRM THE SAME. 9. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO. 242/CHD/2009 IS DISMISSED. ITA NO. 244/CHD/2009 SANDEEP KUMAR PALTA 10 IN THIS CASE THE ASSESSEE HAS RECEIVED A GIFT OF RS. 3 LAKHS FROM SHRI RAKESH BAJAJ AND RS. 3 10 000/- FRO M SMT. BHUPINDER KAUR. RAKESH BAJAJ IN HIS STATEMENT BEFO RE THE INVESTIGATION WING CLEARLY ADMITTED THAT HE HAS NOT GIVEN ANY GIFT AND THE PAY ORDER WAS ISSUED IN LIEU OF CASH. SUMMONS COULD NOT BE SERVED ON SMT. BHUPINDER KAUR AND INDE PENDENT ENQUIRIES REVEALED AS UNDER: INDEPENDENT ENQUIRIES IS ALSO MADE BY THE ADIT (IN V)-II FROM THE BANK IT CAME TO NOTICE THAT NRE BANK ACCOUNT NO. 10 635070 WITH BANK OF PUNJAB SEC 35 CHANDIGARH OF SMT. BHUPINDE R KAUR W/O SHRI SURJEET SINGH IS BEING OPERATED BY ONE POWER O F ATTORNEY HOLDER SHRI DALJIT SINGH. THE ADDRESS OF SHRI DALJ IT SINGH IS NOT AVAILABLE WITH THE BANK. THE PERUSAL OF THE BANK A CCOUNT REVEALS THAT ALMOST ALL THE CREDIT ENTRIES IN THE BANK A CC OF SMT. BHUPINDER KAUR IS BY WAY OF DEPOSIT OF US DOLLARS A ND NOT BY WAY 7 OF CHEQUES OR DRAFTS. AS PER SECTION 3 OF SCHEDULE OF THE NRI SCHEME OF FEMA 1999 FOREIGN CURRENCY CAN BE DEPOSIT ED BY THE ACCOUNT HOLDER IN PERSON DURING VISIT TO INDIA PROV IDED THE BANK AUTHORITIES DEALER IS SATISFIED THAT THE ACCOUNT HO LDER IS STILL RESIDENT OUTSIDE INDIA. IN THIS CASE IT APPEARS THAT NRE ACCOUNT OF SMT. BHUPINDER KAUR IS USED ONLY FOR MONEY LAUND ERING. WHEN THESE FACTS WERE CONFRONTED TO THE ASSESSEE HE MADE A SURRENDER OF RS. 6 10 000/- IN LIEU OF THESE GIFTS. 11 THEREFORE THE FACTS ARE MORE OR LESS IDENTICAL T O THE FACTS OF KRISHAN KUMAR PALTA (SUPRA). BOTH THE PARTIES M ADE SIMILAR CONTENTIONS. WE HAVE ALREADY DECIDED THE APPEAL IN CASE OF KRISHAN KUMAR PALTA ITA NO. 242/CHD/2009. IN ABOVE NOTED PARAS AND FOLLOWING THE SAME WE DECIDE THIS APPEAL AGAINST THE ASSESSEE. 12 IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO. 244/CHD/2009 IS DISMISSED. 13 IN THE RESULT BOTH THE APPEALS OF THE ASSESSES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.4.2014 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21.4.2014 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR