ITO, Gwalior v. Dr. Sushma Trivedi, Gwalior

ITA 281/AGR/2009 | 2006-2007
Pronouncement Date: 25-02-2011 | Result: Dismissed

Appeal Details

RSA Number 28120314 RSA 2009
Assessee PAN ABDPT2697N
Bench Agra
Appeal Number ITA 281/AGR/2009
Duration Of Justice 1 year(s) 7 month(s) 19 day(s)
Appellant ITO, Gwalior
Respondent Dr. Sushma Trivedi, Gwalior
Appeal Type Income Tax Appeal
Pronouncement Date 25-02-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 25-02-2011
Date Of Final Hearing 09-02-2011
Next Hearing Date 09-02-2011
Assessment Year 2006-2007
Appeal Filed On 06-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO.281/AGR/2009 ASST. YEAR: 2006-07 INCOME TAX OFFICER - 2(3) VS. DR. SUSHMA TRIVED I GWALIOR TRIVEDI NURSING HOME NAI SARAK LASHKAR GWALIOR. (PAN : ABDPT 2697 N). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA JR. D.R. RESPONDENT BY : SHRI MAHESH AGARWAL C.A. ORDER PER H.S. SIDHU J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER DATED 25.03.2009 PASSED BY THE CIT(A) ON THE FOLLOWING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. COMMISSIONER OF INCOME-TAX (A) HAS ERRED IN DELETING THE ADDITION O F ` 34 33 189/- BEING THE AMOUNT OF GIFT ADDED BY THE ASSESSING OFFICER TREAT ING IT AS UNEXPLAINED CASH CREDIT U/S. 69 OF THE I.T. ACT 1961. 2. THE APPELLANT CRAVES LEAVE TO ADD/ALTER THE GROU NDS OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS SUBMITTED RETURN OF INCOME DECLARING INCOME OF RS.1 42 160/- FOR THE ASSESSMENT YEAR 200 6-07 ON 26.10.2006. THE CASE OF THE ASSESSEE WAS SELECTED IN SCRUTINY THROUGH COMPUTER ASSISTED SCRUTINY SYSTEM (CASS) AND THE RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT 1961 (THE ACT 2 HEREINAFTER) BY ISSUING NOTICE UNDER SECTION 143(2) OF THE ACT. AFTER HEARING THE ASSESSEE THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON 12.12 .2008 AND ASSESSED THE NET INCOME OF THE ASSESSEE FROM PRIVATE PRACTICE AT RS.50 000/- AND A DDED AGAINST RS.16 372/- AS PER THE RETUNED INCOME BY STATING THAT THE ASSESSEE HAS NOT FIELD A NY EXPLANATION AND DOCUMENTARY EVIDENCE. THE ASSESSING OFFICER ALSO MADE THE ADDITION OF RS.34 3 3 189/- ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE BY OBSERVING THAT THERE IS NO OCCASION FOR RECEIVING THE GIFT BY THE ASSESSEE AND THE ASSESSEE HAS NOT PROVED THE CREDIT WORTHINESS OF TH E DONOR. HE MADE ADDITION OF RS.34 33 189/- UNDER SECTION 69 OF THE ACT KEEPING IN VIEW THE JUD GEMENT DELIVERED BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LALCHAND KALRA VS . CIT (1981) 22 ITR 135 AND COMPLETED THE ASSESSMENT ON 12.12.2008. AGGRIEVED BY THE SAME T HE ASSESSEE FILED AN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE ORDER DATED 25.0 3.2009 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITION OF RS.34 33 189/- MADE BY THE ASSESSING OFFICER UNDER SECTION 69 OF THE ACT ON ACCOUNT OF GIFT RECEIVED ON 01.01. 2001 FROM ASSESSEES BROTHER. NOW THE REVENUE HAS FILED THE PRESENT APPEAL AGGRIEVED BY T HE IMPUGNED ORDER. 3. AT THE TIME OF HEARING THE LD. D.R. STATED THAT THE CIT(A) HAS WRONGLY DELETED THE ADDITION IN DISPUTE WHICH HAS RIGHTLY BEEN ADDED UN DER SECTION 69 OF THE ACT ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE FROM HER BROTHER. HE FURT HER STATED THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE PROVING THE CREDITWORTHINESS OF THE DONOR. THEREFORE THE IMPUGNED ORDER BE CANCELLED AND THE ASSESSMENT ORDER MAY BE UPHELD. 4. ON THE CONTRARY THE LD. COUNSEL FOR THE ASSESSE E RELIED UPON THE IMPUGNED ORDER PASSED BY THE CIT(A) AND STATED THAT SECTION 69 OF THE ACT IS NOT APPLICABLE IN THE CASE OF ASSESSEE 3 BECAUSE THE CREDIT IN THE BANK ACCOUNT HAS FULLY BE EN EXPLAINED BY THE ASSESSEE. HE FURTHER STATED THAT THE ASSESSEE HAS RECEIVED THE GIFT IN D ISPUTE FROM HER REAL BROTHER WHICH WERE ADMISSIBLE UNDER THE SCHEME OF INDIA MILLENNIUM DEP OSIT (IMD) AND THE ASSESSING OFFICER HAS WRONGLY DISBELIEVED THE CLAIM OF THE ASSESSEE BY OB SERVING THAT THERE IS NO OCCASION AROSE TO THE ASSESSEE FOR RECEIVING GIFT FROM ONE BROTHER. HE A LSO STATED THAT THE GIFT IN THE SHAPE OF IMD WAS RECEIVED IN THE A.Y. 2001-02 AND IN THE YEAR UNDER DISPUTE THERE IS ONLY ITS REALIZATION HENCE CREDIT IN BANK CANNOT BE TREATED AS GIFT IN ASSESSM ENT YEAR 2006-07 WHICH IS IN DISPUTE. IN THE PRESENT APPEAL EVEN OTHERWISE THIS GIFT IS NOT TA XABLE IN VIEW OF SECTION 56(2)(V) OF THE ACT IN AS MUCH THE SAME IS FROM DEFINED BLOOD RELATIVE. IN S UPPORT OF HIS CONTENTION HE CITED THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT IN THE CA SE OF KANCHAN SINGH VS. CIT (2009) 221 CTR (ALL.) 456 AND REQUESTED THAT THE LD. FIRST APP ELLATE AUTHORITY HAS RIGHTLY PASSED THE IMPUGNED ORDER AND DELETED THE ADDITION IN DISPUTE ON THE BASIS OF EVIDENCE AS WELL AS LAW. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS WITH US. WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUT HORITY HAS PASSED A WELL REASONED ORDER ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE PRESENT CAS E AND AS WELL AS ON THE BASIS OF PREVAILING LAW. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED A PAPER BOOK CONTAINING PAGE NOS. 1 TO 12 IN WHICH HE HAS ATTACHED THE FOLLOWING :- 1) COPY OF SUBMISSION BEFORE THE ITO. 2) COPY OF ALLOTMENT OF INDIA MILLENNIUM DEPOSITS I N FAVOUR OF DR. ANAND RAO PAWAR. 3) COPY OF GIFT BY TRANSFER OF INDIA MILLENNIUM DEP OSITS BY DR. ANAND RAO PAWAR IN FAVOUR OF SUSHMA TRIVEDI. 4 4) COPY OF LETTER FROM STATE BANK OF INDIA REGISTER ING THE GIFT IN FAVOUR OF SUSHMA TRIVEDI. 5) COPY OF ADVISE FOR MATURITY OF IMD BY SBI AT ` 34 33 189/- ALONG WITH PHOTOCOPY OF THE CHEQUES TOWARDS MATURITY PROCEEDS. 6) COPY OF CONFIRMATION OF RECEIPT OF GIFT BY THE A SSESSEE. 7) COPY OF AFFIDAVIT OF DR. RAM KRISHNA GOPAL RAO P AWAR FATHER OF THE ASSESSEE CONFIRMING THE RELATIONSHIP OF ASSESSEE W ITH DR. ANAND RAO PAWAR. 8) COPY OF LETTER FROM INDIAN EMBASSY CONFIRMING TH E STATUS OF DR. ANAND RAO PAWAR AS NRI. 9) COPY OF BROACHER REGARDING THE INDIA MILLENNIUM DEPOSIT SCHEME. 6. AFTER PERUSING THE SAME IT IS A MATTER OF FACT THAT IN DECEMBER 2000 STATE BANK OF INDIA (SBI) HAS LAUNCHED IMD WHICH ARE ONLY AVAILABLE TO THE NON RESIDENT INDIANS (NRI) AND THE INTEREST EARNED ON THESE DEPOSITS WERE TOTALLY INCO ME TAX FREE. AS PER THE SCHEME THESE DEPOSITS WERE ALSO TRANSFERABLE BETWEEN NRIS. AND BY GIFT TO INDIANS. AS PER THE FACTS DR. ANAND RAO PAWAR IS REAL BROTHER OF THE ASSESSEE WHO MADE INVE STMENT OF $ 50000 IN THE DEPOSITS ON 29.12.2000 WHEN HE WAS IN SAUDI ARABIA. THE ASSESS EE HAS ALSO ATTACHED AT PAGE NO.3 OF THE PAPER BOOK ALLOTMENT LETTER ISSUED BY SBI MENTIONIN G CERTIFICATE NOS. C111618 TO C111622 IN RESPECT OF IMD. HE GIFTED THESE BONDS TO THE ASSES SEE ON 01.01.2001 WHICH WERE MATURED ON 29.12.2005 FOR ` 34 33 189/- AND THE PROCEEDS GOT PAID BY THE SBI GWALIOR AND CREDITED TO THE ASSESSEES ACCOUNT. THE ASSESSING OFFICER ADDED TH E SAME UNDER SECTION 69 OF THE ACT AND TREATED AS UNEXPLAINED CASH CREDIT WHICH IS TOTALLY CONTRARY TO THE FACTS OF THE CASE ON HAND. AFTER GOING THROUGH THE FACTS OF THE PRESENT CASE WE ARE OF THE VIEW THAT THE GIFT IN DISPUTE WAS MADE BY THE REAL BROTHER OF THE ASSESSEE FROM NRI FUNDS AND THE SAME WAS CREDITED IN THE FORM OF GIFT IN THE HANDS OF THE ASSESSEE WHO IS THE REAL SISTER OF THE DONOR NAMED DR. ANAND RAO PAWAR. THE ASSESSEE HAS FILED ALL THE DOCUMENTARY EVIDENCES TO PROVE THE IDENTITY AND CREDITWORTHINESS AS 5 WELL AS GENUINENESS OF THE GIFT BEFORE THE REVENUE AUTHORITIES WHICH IS FULLY EXPLAINED. THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY HELD THAT THE GIFT WAS GENUINE WHICH WAS GIVEN TO THE ASSESSEE ON 01.01.2001 FROM THE REAL BROTHER OF THE ASSESSEE FROM NRI FUNDS WHICH FALLS IN THE ASSESSMENT YEAR 2001-02 AND THE CIT(A) HAS RIGHTLY DELETED THE ADDITION IN DISPUTE BY PASSING A WELL REASONED ORDER WHICH DESERVES TO BE UPHELD. T HEREFORE WE UPHOLD THE SAME BY DISMISSING THE APPEAL FILED BY THE REVENUE. 7. IN THE RESULT APPEAL FIELD BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.02.2011 ). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 25 TH FEBRUARY 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY