Sh. Gurmeet Kalra, Agra v. A.C.I.T.-1, Agra

ITA 297/AGR/2011 | 2001-2002
Pronouncement Date: 15-11-2011 | Result: Dismissed

Appeal Details

RSA Number 29720314 RSA 2011
Assessee PAN ACWPK4212C
Bench Agra
Appeal Number ITA 297/AGR/2011
Duration Of Justice 3 month(s) 6 day(s)
Appellant Sh. Gurmeet Kalra, Agra
Respondent A.C.I.T.-1, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 15-11-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 15-11-2011
Date Of Final Hearing 02-11-2011
Next Hearing Date 02-11-2011
Assessment Year 2001-2002
Appeal Filed On 08-08-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH SMC AGRA BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER ITA NOS.294 & 295/AGR/2011 ASSESSMENT YEARS: 1999-2000 & 2001-02 RESPECTIVELY SMT. KAMALJEET KALRA VS. INCOME TAX OFFICER - 1(2) 61 GWALIOR ROAD AGRA. AGRA. (PAN: ACWPK 4212 C). ITA NO.296/AGR/2011 ASSESSMENT YEAR: 2001-02 SHRI TRILOK SINGH KALRA VS. INCOME TAX OFFICER - 1(2) THROUGH L/H GURMEET KALRA AGRA. 61 GWALIOR ROAD AGRA. (PAN: AAYPK 6190 K). ITA NO.297/AGR/2011 ASSESSMENT YEAR: 2001-02 SHRI GURMEET KALRA VS. A.C.I.T 1 AGRA. 61 GWALIOR ROAD AGRA. (PAN: AAYPK 7333 P) (APPELLANTS) (RESPONDENTS) APPELLANTS BY : SHRI J.L. VERMA & SHRI ANIL VERMA ADVOCATES RESPONDENTS BY : SHRI A.K. SHARMA JR. D.R. DATE OF HEARING : 04.11.2011 DATE OF PRONOUNCEMENT : 15.11.2011 ORDER ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 2 THESE APPEALS HAVE BEEN FILED BY THREE DIFFERENT AS SESSEES AGAINST THE DIFFERENT IMPUGNED ORDERS PASSED BY THE LD. CIT(A)- I AGRA FOR THE ASSESSMENT YEARS 1999-2000 2001-02 2001-02 & 2001-02 RESPECT IVELY. THE ISSUES INVOLVED IN ALL THESE APPEALS ARE IDENTICAL EXCEPT DIFFEREN CE OF AMOUNTS IN DISPUTE THEREFORE FOR THE SAKE OF CONVENIENCE THESE APPEALS ARE DISP OSED OF BY PASSING ONE CONSOLIDATED ORDER. 2. SINCE THE GROUNDS TAKEN ARE ALMOST SIMILAR IN AL L THE APPEALS FILED BY THE ASSESSEES GROUNDS RAISED IN ITA NO.294/AGR/2011 IN THE CASE OF SMT. KAMALJEET KALRA FOR THE ASSESSMENT YEAR 1999-2000 ARE REPRODU CED AS UNDER :- GROUNDS IN ITA NO.294/AGR/2011 FOR A.Y. 1999-2000 1. THAT THE LD. CIT(A)-1 AGRA HAS ERRED IN LAW AND ON FACTS IN UPHOLDING A.O.S JURISDICTION U/S 148 WITHOUT PROPE RLY APPRECIATING THAT THE REASONS RECORDED BY THE LD. ASSESSING OFFI CER ARE VAGUE IRRELEVANT UNSPECIFIC GENERAL UNLAWFUL AND WITHO UT ASSESSING OFFICERS OWN APPLICATION OF MIND. THE INGREDIENTS FOR INVOKING POWERS U/S 148 ARE MISSING. 2. THAT THE LD CIT(A)-1 AGRA HAS ERRED IN LAW AND ON FACTS IN SUSTAINING AN ASSESSMENT WHICH IS PATENTLY UNLAWFUL . THE VERSION OF THE LD. ASSESSING OFFICER THAT THE ASSESSEE HAS INT RODUCED UNACCOUNTED MONEY IN THE GARB OF BOGUS ENTRY OF CAP ITAL GAIN/GIFT IS WITHOUT ANY EVIDENCE. 3. THAT THE LD. CIT(A)-1 AGRA HAS ERRED IN LAW AND ON FACTS IN UPHOLDING ASSESSMENT WITHOUT APPRECIATING THAT THE RE-OPENING WAS DONE ON THE ALLEGATION THAT ASSESSEE HAD OBTAINED A CCOMMODATION ENTRIES WHEREAS ADDITION OF RS.1 05 000/- HAS BEEN MADE U/S 68 AND ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 3 U/S 69 WITHOUT DISTINGUISHING BOTH THE SECTIONS OF LAW IN UTTER DISREGARD OF ASSESSEES SUBMISSIONS. 4. THAT THE LD CIT(A) HAS ERRONEOUSLY UPHELD THE RE -OPENING BRUSHING ASIDE THE FACT THAT THE ASSESSEE HAD FURNI SHED WITH ORIGINAL RETURN COMPLETE EVIDENCE OF GIFT OF RS.1 LAC RECEIV ED FROM SHRI GOVIND RAM OF DELHI WHOSE COMPLETE DETAILS SUCH AS HIS IDENTITY CREDIT WORTHINESS AND BEING AN INCOME TAX PAYER HAS BEEN FURNISHED AND GENUINENESS OF TRANSACTION THROUGH BANKING CHAN NEL HAS BEEN PROVED WHICH WAS ACCEPTED BY THE ASSESSING OFFICER WHILE THE PRESENT LD. ASSESSING OFFICER HAS NOW MADE ADDITION OF RS.1 05 000/- ON THE ALLEGED GROUND OF ACCOMMODATION ENTRY FROM M/S ESSA R PEE ADVERTISING NEW DELHI. 5. THAT THE ASSESSEE IS NOT REQUIRED UNDER THE LAW TO PROVE SOURCE OF THE SOURCE. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN BRUSHING ASIDE THE SUBMISSIONS OF THE APPELLANT THAT RE-OPEN ING U/S 147 WAS MADE AT THE INSTANCE OF SUPERIOR OFFICER OF THE ASS ESSING OFFICER AND THE LD. ASSESSING OFFICER DID NOT APPLY HIS MIND WI TH THE FACTS OF THE CASE. 7. THAT THE LD. CIT(A) HAS HELD THAT ENQUIRIES WERE ALSO MADE AT APPELLATE STAGE BUT THE APPELLANT HAS NEITHER BEEN CONFRONTED WITH THE RESULT OF SUCH ENQUIRIES MADE AT THE BACK OF ASSESS EE NOR HAS BEEN PROVIDED ANY OPPORTUNITY TO REBUT THE SAME. 8. THAT THE LD CIT(A)-1 AGRA HAS ERRED IN LAW AND ON FACTS IN REPEATEDLY REFERRING TO HIS OWN DECISION IN THE APP EAL OF GURMEET KALRA WHEREAS THE FACTS FIGURES AND NATURE OF FACT S OF THE ASSESSEE ARE NOT COMPARABLE. MOREOVER ANY DECISION OF THE L D. CIT(A) HIMSELF IN THE CASE OF ANY OTHER ASSESSEE CANNOT BE IMPOSED ON THE APPELLANT WITHOUT CONFRONTING THE ASSESSEE WITH THE FACTS OF THE CASE AND WITHOUT AFFORDING OPPORTUNITY TO DISTINGUISH THE SAME. 9. THAT THE LD. CIT(A) HAS BEEN UNJUST IMPROPER AN D UNLAWFUL IN BRUSHING ASIDE THE VARIOUS DECISIONS OF HONBLE TRI BUNAL AND COURTS WITHOUT DISTINGUISHING THE SAME FROM HIS OWN VIEWS. ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 4 10. THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND OR WITHDRAW ANY GROUND OF APPEAL AT ANY TIME. 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THERE IS A DELAY OF 21 DAYS IN FILING THE ITA NO.297/AGR/2011 IN THE CASE OF SHRI GURMEET KALRA FOR THE ASSESSMENT YEAR 2001-02. HE STATED T HAT THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY AND REQUESTED THAT THE DELAY OF 21 DAYS MAY BE CONDONED AND THE APPEAL MAY BE ADMITTED AND HEAR D ON MERITS. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND HAS NOT RAISED ANY OBJECTION ON THE REQUEST OF THE ASSESSEE. 5. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE AFORESAID CASE AND THE REASONS MENTIONED BY THE ASSESSEE IN THE APPLICATIO N FOR CONDONATION OF DELAY I CONDONE THE DELAY OF 21 DAYS BY ADMITTING THE APPEA L FILED BY THE ASSESSEE. 6. BOTH THE PARTIES AGREED THAT SINCE THE ISSUES IN VOLVED IN ALL THESE APPEALS ARE IDENTICAL IT WAS CONTENDED THAT FOR THE SAKE OF C ONVENIENCE THE ARGUMENTS ADVANCED IN ITA NO.294/AGR/2011 IN THE CASE OF SMT. KAMALJEET KALRA MAY BE APPLIED FOR OTHER APPEALS ALSO. ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 5 7. FIRST I AM TAKING UP ITA NO.294/AGR/2011 FOR ASS ESSMENT YEAR 1999-2000 IN THE CASE OF SMT. KAMALJEET KALRA. THE FACTS REL ATING TO THE ISSUE IN DISPUTE IN THE SAID APPEAL ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED HER RETURN OF INCOME ON 15.03.2000 DECLARING AN INCOME OF RS.56 500/-. THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT 196 1 (THE ACT HEREINAFTER) TO THE ASSESSEE ON 24.03.2006 ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING REGARDING ENTRIES OF LONG TERM CAPITAL GAIN/SH ORT TERM CAPITAL GAIN AND GIFTS WHICH WERE FOUND ON ENQUIRIES BY THE INVESTI GATION WING AS BOGUS BECAUSE IT WAS FOUND THAT THE BANK ACCOUNTS FROM WHERE MONEY H AS BEEN TRANSFERRED TO VARIOUS BENEFICIARIES & HAVE BEEN OPERATED BY THE BROKERS WHO HAD BEEN PR OVIDING ENTRIES TO THE BENEFICIARIES BY SHOWING THEM TRANSA CTION MADE BY THEM IN PURCHASE AND SALE OF SHARES OF CERTAIN COMPANIES GIFTS FROM CERTAIN PERSONS WHICH IN FACT NEVER TOOK PLACE. THE ASSESSEE WAS ONE OF THE BENE FICIARIES OF RECEIPT OF ENTRY OF RS.1 00 000/- FROM M/S ESSAR PEE ADVERTISING DELHI . THE SAID DRAFT WAS ISSUED IN THE NAME OF THE ASSESSEE ON 30.03.1999 WHICH WAS FO UND CREDITED IN ASSESSEES BANK ACCOUNT NO.26957 WITH CANARA BANK SADAR BAZAR AGRA. IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT ISSUED ON 24.03 .2006 ON WHICH THE ASSESSEE FILED A WRITTEN REPLY DATED 10.04.2006 STATING THAT RETURN FILED BY HER ON 15.03.2000 SHOWING AN INCOME OF RS.56 500/- MAY BE TREATED AS HAVING BEEN FILED IN COMPLIANCE TO THE NOTICE UNDER SECTION 148 OF THE A CT. THE ASSESSEE HAD ALSO REQUESTED TO FURNISH THE REASONS RECORDED FOR ISSUA NCE OF NOTICE UNDER SECTION 148 ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 6 VIDE LETTER DATED 10.04.2006 WHICH WAS DULY SUPPLIE D TO THE ASSESSEE BY THE ASSESSING OFFICER. THE ASSESSING OFFICER ALSO ISSU ED NOTICE TO THE ASSESSEE UNDER SECTION 143(2) OF THE ACT AND IN RESPONSE TO THE SA ME SHRI ANIL VERMA ADVOCATE ATTENDED FROM TIME TO TIME AND FILED NECESSARY DETA ILS AS REQUIRED BY THE ASSESSING OFFICER. 8. THE ASSESSEE HAS CHALLENGED THE VALIDITY OF ISSU ANCE OF NOTICE UNDER SECTION 148 OF THE ACT ON VARIOUS GROUNDS BY RAISING VARIOU S OBJECTIONS BUT THE ASSESSING OFFICER CONSIDERED THE SAME AND HELD THAT THERE IS NO INFIRMITY IN THE ISSUANCE OF NOTICE IN DISPUTE UNDER SECTION 148 OF THE ACT. TH E ASSESSING OFFICER SUPPORTED HIS VIEW BY VARIOUS DECISIONS RENDERED BY THE HONB LE SUPREME COURT OF INDIA AS WELL AS THE HONBLE HIGH COURTS. 9. THE ASSESSEE WAS REQUESTED TO FURNISH EVIDENCE R EGARDING THE GENUINENESS OF THE ENTRY OF RS.1 00 000/- MENTIONED ABOVE RECEIVED FROM M/S ESSAR PEE ADVERTISING DELHI. THE ASSESSEE HAS GIVEN HER REP LY DATED 14.08.2006 SPECIFICALLY DENYING OF HAVING RECEIVED ANY DRAFT FROM M/S ESSAR PEE ADVERTISING DELHI. IN VIEW OF THE SPECIFIC DENIAL OF THE ASSESSEE THE AS SESSING OFFICER MADE AN ENQUIRY FROM THE BANKS AND FOUND THAT DRAFT NO.186300 DATED 30.03.1999 WAS ISSUED FROM VIJAYA BANK BHIKAJI KAMA PALACE NEW DELHI AND THE SAME WAS GOT DEPOSITED IN ASSESSEES ACCOUNT NO.26957 WITH CANARA BANK SADAR BAZAR AGRA. THE ASSESSING ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 7 OFFICER CONFRONTED THE SAME TO THE ASSESSEE AND SHE STATED THAT VIDE HER REPLY DATED 13.12.2006 THAT NO SUCH DRAFT WAS RECEIVED BY HER F ROM M/S ESSAR PEE ADVERTISING DELHI BUT SHE RECEIVED A GIFT OF RS.1 00 000/- VIDE THE ABOVE DRAFT FROM ONE SHRI GOVIND RAM S/O. SHRI SHIV KUMAR X-65 BUDH VIHAR DELHI. THE ASSESSING OFFICER DIRECTED THE ASSESSEE TO PRODUCE SHRI GOVIN D RAM FOR EXAMINATION IN SUPPORT OF HER CONTENTION BUT THE ASSESSEE COULD N OT PRODUCE SHRI GOVIND RAM FOR EXAMINATION AND REQUESTED FOR ISSUANCE OF SUMMON TO SHRI GOVIND RAM. ON THE REQUEST OF THE ASSESSEE SUMMON UNDER SECTION 131 O F THE ACT WAS ISSUED TO SHRI GOVIND RAM ON THE ADDRESS GIVEN BY THE ASSESSEE FIX ING THE DATE FOR COMPLIANCE ON 26.12.2006. IN COMPLIANCE OF THE SAME NEITHER SHRI GOVIND RAM ATTENDED NOR FILED ANY WRITTEN REPLY. KEEPING IN VIEW OF THE FA CTS AND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER WAS OF THE OPINION THAT THE A SSESSEE HAS RECEIVED BOGUS ENTRY OF RS.1 00 000/- FROM M/S ESSAR PEE ADVERTISING DE LHI WHICH IS EVIDENT FROM ENQUIRY MADE BY THE DEPARTMENT AND WHEN CAUGHT DUE TO FEAR OF CONSEQUENCE GAVE IT A COLOUR OF GIFT FROM SHRI GOVIND RAM. THE ASSE SSING OFFICER WAS ALSO OF THE OPINION THAT SINCE THE ASSESSEE COULD NOT PRODUCE S HRI GOVIND RAM FOR EXAMINATION AND SHRI GOVIND RAM ALSO NOT RESPONDED TO THE SUMMON ISSUED UNDER SECTION 131 OF THE ACT AS ALSO THE DEPARTMENT WAS H AVING SPECIFIC INFORMATION THAT THE ASSESSEE HAD RECEIVED A BOGUS ENTRY OF RS.1 00 000/- FROM M/S ESSAR PEE ADVERTISING DELHI THEREFORE HE HELD THAT THE ASS ESSEE HAS INTRODUCED HER UNACCOUNTED MONEY UNDER THE GARB OF BOGUS ENTRY OF GIFT. THIS WAS ALSO PROVED ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 8 FROM THE FACT THAT M/S ESSAR PEE ADVERTISING DELHI HAS GOT ISSUED DEMAND DRAFTS OF RS.4 50 000/- FROM HIS BANK ACCOUNT WITH VIJAYA BAN K BHIKAJI CAMA PALACE NEW DELHI ON 30.03.1999. THESE DRAFTS INCLUDE A DEMAND DRAFT NO.186300 DATED 30.03.19099 ISSUED TO THE ASSESSEE. HE ALSO HELD T HAT BEFORE GETTING THESE DRAFTS ISSUED M/S ESSAR PEE ADVERTISING DELHI DEPOSITED CASH OF RS.7 50 000/- ON 30.03.1999 AND OTHER DRAFTS OF RS.1 00 000/- EACH W ERE ISSUED IN THE NAME OF SHRI PARVINDER KALRA AND SHRI GOVIND KALRA OTHER MEMBER S OF FAMILY OF THE ASSESSEE. THE ASSESSING OFFICER ALSO FOUND THAT FROM THE BANK STATEMENT OF M/S ESSAR PEE ADVERTISING IT WAS ALSO SEEN THAT NUMBER OF ENTRIES HAD BEEN ISSUED TO DIFFERENT BENEFICIARIES AFTER DEPOSITING CASH ON THE SAME DAY . THUS THE CIRCUMSTANTIAL EVIDENCE AND THE SURROUNDING CIRCUMSTANCE GOES TO P ROVE THAT THE ASSESSEE HAS INTRODUCED HER UNACCOUNTED MONEY CHANNELISING IT TH ROUGH M/S ESSAR PEE ADVERTISING DELHI TO EVADE TAX. 10. THE ASSESSING OFFICER ALSO CONSIDERED THE RELAT IONSHIP BETWEEN THE DONOR AND THE DONEE AND THE OCCASION OF THE GIFTS IN DISP UTE ALONG WITH HUMAN PROBABILITIES AND CONDUCT ON THE ISSUE IN DISPUTE K EEPING IN VIEW OF THE DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT V S. DURGA PRASAD MORE REPORTED IN 82 ITR 540 (SC) WHEREIN IT HAS BEEN HE LD AS UNDER :- ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 9 IT IS TRUE THAT APPARENT MUST BE CONSIDERED REAL U NTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE AP PARENT IS NOT THE REAL. IN A CASE OF THE PRESENT KIND A PARTY WHO RE LIES ON A RECITAL IN A DEED HAS TO ESTABLISH THE TRUTH OF THOSE RECITALS OTHERWISE IT WILL BE VERY EASY TO MAKE SELF SERVING STATEMENTS IN DOCUME NTS EITHER EXECUTED OR TAKEN BY A PARTY AND RELY ON THOSE RECI TALS. IF ALL THAT AN ASSESSEE WHO WANTS TO EVADE TAX IS TO HAVE SOME REC ITALS MADE IN A DOCUMENT EITHER EXECUTED BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEFT WIDE OPEN TO EVADE TAX. A LITTLE PROBING WAS SUFFICIENT IN THE PRESENT CASE TO SHOW THAT THE APP ARENT WAS NOT THE REAL. THE TAXING AUTHORITIES WERE NOT REQUIRED TO PUT ON BLINKERS WHILE LOOKING AT THE DOCUMENTS PRODUCED BEFORE THEM . THEY WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE RECITALS MADE IN THOSE DOCUMENTS. THE ASSESSING OFFICER HAS ALSO CITED THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF WORKMAN OF ASSOCIATE RUBBER INDUSTRY LIMITED 157 ITR 77 WHEREIN IT HAS BEEN HELD AS UNDER :- IT IS THE DUTY OF THE COURT IN EVERY CASE WHERE I NGENUITY IS EXPENDED TO AVOID TAXING AND WELFARE LEGISLATION T O GET BEHIND THE SMOKE SCREEN AND DISCOVER THE TRUE STATE OF AFFAI RS. THE COURT IS NOT TO BE SATISFIED WITH FORM AND LEAVE WELL ALONE THE SUBSTANCE OF A TRANSACTION. AVOIDANCE OF WELFARE LEGISLATION IS A S COMMON AS AVOIDANCE OF TAXATION AND THE APPROACH IN CONSIDERI NG PROBLEMS ARISING OUT OF SUCH AVOIDANCE HAS NECESSARILY TO BE THE SAME. IN THE CASE OF M/S. MCDOWELL & CO. 154 ITR 148 THE HONBLE SUPREME COURT OF INDIA HAS HELD THAT AVOIDANCE OF TAX THROU GH COLOURABLE DEVICE WAS NOT PERMISSIBLE. ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 10 IN THE CASE OF SUNIL SIDDARTH VS. CIT(A) 156ITR 50 7 THE HONBLE SUPREME COURT OF INDIA HAS HELD THAT IT WAS OPEN TO THE INC OME-TAX AUTHORITY TO GO BEHIND A TRANSACTION AND EXAMINE WHETHER THE TRANSACTION WAS GENUINE OR NOT. FOR THIS PURPOSE THE ITO CAN LIFT THE VEIL AND ASCERTAIN TH E TRUTH. 11. AFTER CONSIDERING THE EVIDENCES FILED BY THE AS SESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS THE VARIOUS DECIS IONS RENDERED BY THE HONBLE SUPREME COURT OF INDIA AND HONBLE HIGH COURTS THE ASSESSING OFFICER HAS HELD THAT AT THE PRESENT CONDITIONS OF THE SOCIETY WHEN NO PERSON WOULD PART WITH EVEN OF SMALL AMOUNT AS GIFT WITHOUT ANY REASON OCCASIO N AND EVEN RELATIONSHIP HOW IT CAN BE ACCEPTED THAT A CHARTERED ACCOUNTANT AFTER C REATING NUMBER OF TRUSTS CAN GIVE NUMBER OF GIFTS TO THE STRANGERS HAVING NO REL ATIONSHIP OR CONSIDERATION ? THUS WHEN THE INCOME TAX DEPARTMENT STARTED TO PEN ETRATE THE VEIL BY STARTING INVESTIGATIONS THE FACTS EMERGED MADE IT CLEAR THA T THE SAID CHARTERED ACCOUNTANT WAS GIVING GIFT ENTRIES TO THE PERSONS DESIRING TO INTRODUCE THEIR UNACCOUNTED MONEY WITHOUT PAYING ANY TAX IN LIEU OF TAKING CASH AND COMMISSION FROM THEM. HE HELD THAT IT IS A CLEAR CUT EXAMPLE OF TAX EVASI ON WHICH IS NOT PERMISSIBLE AS PER VARIOUS DECISIONS OF THE HONBLE SUPREME COURT OF I NDIA MENTIONED IN THE ASSESSMENT ORDER. FINALLY THE ASSESSING OFFICER HE LD THAT THE ASSESSEE HAS RECEIVED A BOGUS ENTRY OF RS.1 00 000/- FROM M/S ES SAR PEE ADVERTISING DELHI IN LIEU OF CASH AND SUBSEQUENTLY GAVE IT A COLOUR OF G IFT IN THE ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 11 NAME OF SHRI GOVIND RAM OF DELHI. SINCE THE DRAFT WAS ISSUED ON 30.03.1999 AND THE ASSESSEE HAS ADMITTED THIS DRAFT IN THE NAME OF SHRI GOVIND RAM THE DRAFT WAS ENCASHED AND DEPOSITED IN THE ACCOUNT OF THE ASSESS EE ON 05.04.1999. THE ASSESSEE COULD NOT ESTABLISH THAT THE DRAFT WAS NOT RECEIVED FROM M/S ESSAR PEE ADVERTISING DELHI BUT FROM SHRI GOVIND RAM OF DELHI BY ANY EVID ENCE IN SUPPORT OF HER CLAIM IN THE FORM OF BANK ACCOUNT OF SHRI GOVIND RAM. SH RI GOVIND RAM HAS ALSO NOT BEEN PRODUCED FOR EXAMINATION. EVEN SHRI GOVIND RA M DID NOT ATTEND IN RESPONSE TO THE SUMMON UNDER SECTION 131 OF THE ACT ISSUED B Y THE DEPARTMENT. THE ASSESSEE HAS NOT PROVED THE GENUINENESS OF THE TRAN SACTION IN DISPUTE. THEREFORE THE AMOUNT OF RS.1 00 000/- WAS ADDED IN THE YEAR U NDER CONSIDERATION AS THE INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES AND A COMMISSION @ 5% AMOUNTING TO RS.5 000/- WAS ALSO BEING ADDED TO THE INCOME OF THE ASSESSEE AND HE COMPLETED THE ASSESSMENT IN DISPUTE UNDER SECTION 1 43(3)/147 OF THE ACT ON 28.12.2006. AGGRIEVED BY THE SAME THE ASSESSEE FI LED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE THE IMPUGNED ORDER DA TED 15.03.2011 DISMISSED THE APPEAL FILED BY THE ASSESSEE BY UPHOLDING THE ASSES SMENT ORDER PASSED BY THE ASSESSING OFFICER. NOW THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 15.03.2011 BY RAISING THE AFOR ESAID GROUNDS OF APPEAL REPRODUCED IN PARAGRAPH NO.2 ABOVE. ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 12 12. SHRI J.L. VERMA AND SHRI ANIL VERMA ADVOCATES APPEARED ON BEHALF OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THE ASSESSEE HAS FILED HER ORIGINAL RETURN OF INCOME ON 15.03.2000 IN WARD NO. 2(4) AGRA SHOWING INCOME OF RS.56 500/- WHICH WAS ASSESSED UNDER SECTION 143(1) (A) OF THE ACT. SUBSEQUENTLY THE ASSESSEE RECEIVED A NOTICE UNDER SECTION 148 DA TED 24.03.2008 FROM SHRI NARESH CHANDRA ITO-1(2) AGRA AND ANOTHER NOTICE UN DER SECTION 148 OF THE ACT DATED 28.03.2008 ISSUED BY ACIT-1 AGRA MS. ALKA GA UTAM. BOTH THE ASSESSING OFFICERS ASSUMED JURISDICTION SIMULTANEOUSLY. IT A PPEARS THAT APPROVAL UNDER SECTION 151 OF THE ACT HAS NOT BEEN OBTAINED. SECO NDLY THE REASONS WERE RECORDED IN STEREO TYPE PERFORMA TO FILL IN THE BLANKS BY TH E ITO-1(2) AGRA. HE HAS ALSO FILED A COPY OF PERFORMA WITH HIS SMALL PAPER BOOK CONTAINING PAGE NOS.1 TO 11 AT PAGE NO.11. HE STATED THAT IN VIEW OF THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT(A) VS. SMT. SULOCHNA REPORTED IN (2005) 145 TAXMAN 215 (MAD) WHEREIN IT HAS BEEN HELD THAT MATERIAL RELIED UPON FOR THE PURPOSE OF REOPENING OF ASSESSMENT SHOULD BE DEFINITE SPECIFIC RELEVANT A ND RELIABLE. IN THE CASE OF THE ASSESSEE THE ASSESSING OFFICER IS NOT IN POSSESSIO N OF ANY DEFINITE SPECIFIC RELEVANT AND RELIABLE MATERIAL EVIDENCE WITH HIM. THEREFORE THE ASSESSMENT IN DISPUTE DESERVES TO BE CANCELLED. IN SUPPORT OF TH E CONTENTION HE ALSO CITED THE FOLLOWING DECISIONS:- ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 13 I) HYNOUP FOOD AND OIL INDUSTRIES VS. ACIT REPORTED IN (2008) 307 ITR (GUJ) 115. II) CIT(A) VS. M.P. IRON TRADERS REPORTED IN (2004) 189 CTR (P&H) 154. III) ACIT VS. SUNIL KUMAR JAIN REPORTED IN (2007) 1 10 TTJ (JP) 731. IV) CIT VS. AGRAWALA BROTHERS REPORTED IN 189 ITR 7 86 (PAT). 13. FURTHER THE LD. COUNSEL FOR THE ASSESSEE INVIT ED MY ATTENTION TO THE RECENT DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF IN THE CASE OF SIGNATURE HOTEL VS. ITO REPORTED IN (2011) 60 DTR (DEL) 30 WH EREIN THE HONBLE HIGH COURT HAS HELD AS UNDER :- INFORMATION RECEIVED BY THE ASSESSING OFFICER FROM DIT (INV.) THAT THE ASSESSEE HAS INTRODUCED UNACCOUNTED MONEY BY WAY OF AN ACCOMMODATION ENTRY BEING EXTREMELY SCANTY AND VAGU E CANNOT BE REGARDED AS A MATERIAL OR EVIDENCE THAT PRIMA FACIE ESTABLISHES ESCAPEMENT OF INCOME MORE SO AS THE ASSESSING OFFI CER DID NOT APPLY HIS OWN MIND TO THE INFORMATION TO ARRIVE AT THE BE LIEF AS TO WHETHER OR NOT ANY INCOME HAD ESCAPED ASSESSMENT PROCEEDINGS U/S 147 ARE QUASHED 14. HE REQUESTED THAT THE ASSESSING OFFICER HAS ISS UED NOTICE UNDER SECTION 148 OF THE ACT WITHOUT ANY RELEVANT AND RELIABLE EVIDEN CE THEREFORE THE ASSESSMENT ORDER IN DISPUTE MAY BE CANCELLED. SECONDLY ON ME RIT HE ARGUED THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT IN DISPU TE UNDER SECTION 143(1)(A) OF THE ACT WHICH WAS REOPENED WITHOUT ANY REASONABLE C AUSE AND WITHOUT OBTAINING APPROVAL AS REQUIRED UNDER SECTION 151 OF THE ACT A ND FINALLY ASSESSED THE ALLEGED ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 14 ESCAPED INCOME STATED IN THE REASONS FOR INVOKING S ECTION 148 ARE QUITE DIFFERENT UNDER DIFFERENT HEADS. HE FURTHER STATED THAT THE ASSESSEE HAS FILED ALL REQUIRED EVIDENCES BEFORE THE ASSESSING OFFICER WHICH INCLUD ED MEMORANDUM OF GIFT AFFIDAVIT OF DONOR BANK ACCOUNT OF DONOR ACKNOWLE DGEMENT OF INCOME TAX RETURN BALANCE SHEET AND INTIMATION UNDER SECTION 143(1) O F THE DONOR & RATION CARD OF THE DONOR. IN THIS WAY THE ASSESSEE HAS PROVED THE ID ENTITY OF THE DONOR HIS FINANCIAL CAPACITY BEING A TAX PAYER AND CONFIRMATION OF GIFT THROUGH BANKING CHANNEL. THUS THE ASSESSEE HAS DISCHARGED HER ONUS BY FILIN G ALL THE NECESSARY EVIDENCES AND TRUE FACTS. THEREFORE THERE IS NO ESCAPEMENT OF ANY INCOME BY THE ASSESSEE BECAUSE THE ASSESSING OFFICER HAS ASSESSED THE INCO ME OF THE ASSESSEE UNDER SECTION 143(1)(A) OF THE ACT AFTER CONSIDERING ALL EVIDENCES FILED WITH THE RETURN. 15. FINALLY THE LD. COUNSEL FOR THE ASSESSEE STATE D THAT THE ASSESSING OFFICER HAS NOT DISPROVED THE EVIDENCES FILED BY THE ASSESSEE A ND HE HAS ALSO NOT BROUGHT ON RECORD ANY EVIDENCE COLLECTED AT THE BACK OF THE AS SESSEE WHICH COULD LEAD THAT THE EVIDENCES FURNISHED BY THE ASSESSEE ARE FALSE INCO RRECT OR DEFICIENT IN ANY WAY. AT THE END THE LD. COUNSEL FOR THE ASSESSEE ALSO STAT ED THAT THE ASSESSING OFFICER HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE PERSON ON WHOSE BEHALF THE EVIDENCES FILED BY THE ASSESSEE WE RE BEING IGNORED AND ASSESSED THE INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES . HE REQUESTED THAT THE APPEAL FILED BY THE ASSESSEE MAY BE ACCEPTED AND THE IMPUG NED ORDER MAY BE CANCELLED. ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 15 16. ON THE CONTRARY THE LD. DEPARTMENTAL REPRESENT ATIVE RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY AND STA TED THAT THE ASSESSING OFFICER HAS RIGHTLY ISSUED NOTICE UNDER SECTION 148 OF THE ACT TO THE ASSESSEE WHICH WAS SERVED UPON THE ASSESSEE AND IN RESPONSE TO THE SAM E THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME T O TIME AND FILED THE REPLY ALONG WITH DOCUMENTARY EVIDENCE AS REQUIRED BY THE ASSESS ING OFFICER. HE FURTHER STATED THAT THE ASSESSEE HAS NOT RAISED ANY OBJECTION ABOU T THE JURISDICTION OF THE ASSESSING OFFICER. THEREFORE AT THIS STAGE THE AS SESSEE IS NOT LIABLE TO RAISE ANY SUCH OBJECTION IN THE SECOND APPELLATE STAGE. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER STATED THAT ACCORDING TO THE RECORD THE AS SESSEE HAS RECEIVED THE AMOUNT IN DISPUTE FROM M/S ESSAR PEE ADVERTISING DELHI AND T HE SAME WAS DEPOSITED IN THE ASSESSEES BANK ACCOUNT WITH CANARA BANK SADAR BAZ AR AGRA BUT ACCORDING TO THE ASSESSEE SHE HAS RECEIVED A GIFT OF RS.1 00 000/- FROM ONE SHRI GOVIND RAM S/O. SHRI SHIV KUMAR X-65 BUDH VIHAR DELHI BUT AS RE QUIRED BY THE ASSESSING OFFICER THE ASSESSEE HAS NOT PRODUCED SHRI GOVIND RAM BEFORE THE ASSESSING OFFICER FOR EXAMINATION IN SUPPORT OF HER CONTENTIO N. MEANING THEREBY THE PLEA OF THE ASSESSEE IS BASELESS WITHOUT ANY EVIDENCE. TH EREFORE THE ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION IN DISPUTE BY ISSUING A VALID NOTICE UNDER SECTION 148 OF THE ACT. IN SUPPORT OF HIS CONTENTION HE CITED DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF LALL CHAND KALRA VS. CIT REPORTED IN (1981) 22 CTR (P&H) 135 WHEREIN THE HONBLE HIGH COURT HAS HE LD THAT ONE OF THE GIFTS ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 16 BEING FROM A STRANGER AND THE OTHER FROM A RELATIVE WHO HAD OTHER MORE IMPORTANT LIABILITIES THEY CANNOT BE HELD TO BE GENUINE. IN THE PRESENT CASE ALSO THE ASSESSEE HAS RECEIVED THE GIFT FROM THE STRANGER WHO HAVE NO RELATION WITH THE ASSESSEE AND WITHOUT ANY OCCASION. THEREFORE HE REQUESTED THAT THE APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED. 17. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH ME ESPECIALLY THE WRITTEN SUBMISSION FILED BY THE A SSESSEE ALONG WITH VARIOUS DECISIONS FILED BY THE ASSESSEE IN THE SHAPE OF PAP ER BOOK. IT IS A MATTER OF FACT THAT THE ASSESSEE IS AN INDIVIDUAL FILED HER ORIGIN AL RETURN OF INCOME ON 15.03.2000 WHICH WAS ASSESSED UNDER SECTION 143(1)(A) OF THE A CT. SUBSEQUENTLY THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 O F THE ACT ON 24.03.2006 WHICH WAS DULY SERVED UPON THE ASSESSEE ON 25.03.2006. T HE A.O. ISSUED THIS NOTICE ON THE BASIS OF THE INFORMATION RECEIVED FROM THE INVE STIGATING WING REGARDING ENTRIES OF LONG TERM CAPITAL GAIN/SHORT TERM CAPITAL GAIN A ND GIFTS. THE INVESTIGATION WING MADE AN ENQUIRY OF THE SAME AND FOUND THAT THE BANK ACCOUNTS FROM WHERE MONEY HAS BEEN TRANSFERRED TO VARIOUS BENEFICIARIES HAVE BEEN OPERATED BY THE BROKERS WHO HAD BEEN PROVIDING ENTRIES TO THE BENE FICIARIES BY SHOWING THEM TRANSACTION MADE BY THEM IN PURCHASE AND SALE OF SH ARES OF CERTAIN COMPANIES GIFTS FROM CERTAIN PERSONS WHICH IN FACT NEVER TOOK PLAC E. THE ASSESSEE WAS ONE OF THE BENEFICIARIES OF RECEIPT OF ENTRY OF RS.1 00 000/- FROM M/S ESSAR PEE ADVERTISING ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 17 DELHI. THE SAID DRAFT WAS ISSUED IN THE NAME OF TH E ASSESSEE ON 30.03.1999 WHICH WAS FOUND CREDITED IN ASSESSEES BANK ACCOUNT NO.26 957 WITH CANARA BANK SADAR BAZAR AGRA. ON THE BASIS OF THESE REASONS THE AS SESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT ON 24.03.2006 WHICH WA S DULY SERVED UPON THE ASSESSEE ON 25.03.2006. IN RESPONSE TO THE SAME L D. AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED AND FILED HIS REPLY ON 10.04. 2006 STATING THAT THE RETURN FILED BY THE ASSESSEE ON 15.03.2000 VIDE RECEIPT NO.13255 4 SHOWING AN INCOME OF RS.56 500/- MAY BE TREATED AS HAVING BEEN FILED IN COMPLIANCE TO THE NOTICE UNDER SECTION 148 OF THE ACT. IT IS ALSO A MATTER OF REC ORD THAT THE ASSESSING OFFICER HAS ALSO SUPPLIED COPY OF REASON RECORDED WHICH WAS REC EIVED BY THE ASSESSEE. THEREAFTER THE ASSESSEE HAS RAISED VARIOUS OBJECTI ONS ON THE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT WHICH WAS THOROUGHLY C ONSIDERED BY THE ASSESSING OFFICER AND REJECTED THE SAME. 18. SIMILARLY THE LD. FIRST APPELLATE AUTHORITY HA S ALSO UPHELD THE FINDING OF THE ASSESSING OFFICER ON THIS LEGAL ISSUE BY HOLDIN G THAT PROCESSING UNDER SECTION 143(1)(A) IS NOT AN ASSESSMENT ORDER AND THERE BEIN G NO ASSESSMENT UNDER SECTION 143(1)(A) THE QUESTION OF CHANGE OF OPINION DOES N OT ARISE. IT HAS ALSO BEEN HELD THAT FOR ANY RETURN PROCESSED UNDER SECTION 143(1)( A) ONLY ONE CONDITION IS REQUIRED TO BE SATISFIED THAT THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO INCOME TAX HAS ESCAPED THE ASS ESSMENT. IN OTHER WORDS IF ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 18 THE ASSESSING OFFICER FOR WHATEVER REASON HAS REASO N TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT IT CONFERS JURISDICTION TO REOP EN THE ASSESSMENT. THE LD. FIRST APPELLATE AUTHORITY SUPPORTED HIS VIEW BY THE DECIS ION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF ACIT VS. RAJESH JHAVERI STO CK BROKERS (P) LTD. (2007) 161 TAXMAN 316 (SC). AFTER GOING THROUGH THE DETAILED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY I AM OF THE CONSIDERED OPINION THAT NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 148 OF THE ACT IS A VALID NOTICE AS PER THE PROVISIONS OF SECTIONS 147 & 148 OF THE ACT AND AS PER THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS (P) LTD. (SUPRA). THEREFORE I UPHOLD THE IMPUGNED ORDER ON THE LEGAL ISSUE AND REJECT THE ARGUMENTS ADVANCED BY THE LD. COUNSE L FOR THE ASSESSEE. 19. AS REGARDS TO THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE ON MERITS THE PRESENT CASE PERTAINED TO THE FAMILY HE ADED BY ONE SHRI GURMEET KALRA AND THE ASSESSEE IS THE WIFE OF SHRI GURMEET KALRA. THE LD. FIRST APPELLATE AUTHORITY HAD DECIDED THE ISSUE IN DISPUTE IN THE C ASE OF SHRI GURMEET KALRA PERTAINING TO ASSESSMENT YEAR 2001-02 VIDE ORDER DA TED 28.02.2011 WHICH HAS BEEN ATTACHED WITH THE IMPUGNED ORDER. THE LD. FIR ST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE ASSESSEE BY FOLLOWING T HE ORDER DATED 28.02.2011. IT WAS FOUND THAT SIMILAR GIFTS WERE SHOWN BY HIM AND HIS OTHER FAMILY MEMBERS FROM DIFFERENT PERSONS LIVING IN DIFFERENT PARTS OF DELHI HAVING NO RELATIONSHIP AND ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 19 ALSO WITHOUT ANY OCCASION FOR GIVING SUCH GIFTS. I T WAS ALSO FOUND THAT TOTAL AMOUNT OF GIFTS RECEIVED IN THE YEAR AMOUNTED TO RS.8 50 0 00/- CAME FROM THE BANK ACCOUNT OF TWO ENTRY GIVERS I.E. M/S RAJIV FINCAP S ECURITIES AND M/S ROHIT FINCAP SECURITIES WITH VIJAYA BANK BHIKAJI CAMA PALACE NEW DELHI WHERE THE ACCOUNT OF M/S ESSAR PEE ADVERTISING DELHI WAS ALSO BEING MAINTAINED. THE MODUS OPERANDI FOLLOWED BY THE ASSESSEE ARE SIMILAR AS AD OPTED IN THE CASE OF SHRI GURMEET KALRA MENTIONED ABOVE IN GETTING THE ENTRY FOR GIFT OF RS.1 00 000/- SHOWN TO HAVE BEEN GIVEN BY SOME SHRI GOVIND RAM. IN ASSESSMENT YEAR 2001- 02 NONE OF THE FAMILY MEMBERS OF KALRA FAMILY INCL UDED THE PRESENT ASSESSEE COULD BE ABLE TO PRODUCE ANY OF THE DONORS BECAUSE EITHER THEY DID NOT EXIST OR IF THEY EXISTED THEY WERE ONLY NAME LENDERS AND BECAU SE OF THAT REASON NONE OF THE DONORS WERE PRODUCED BY ANY OF THE FAMILY MEMBERS O F KALRA FAMILY. SIMILARLY THE PRESENT ASSESSEE HAS ALSO NOT PRODUCED SHRI GOV IND RAM. SHE HAS ONLY FILED PHOTOCOPY OF GIFT DEED COPY OF RETURN OF THE SO-CA LLED DONOR SHRI GOVIND RAM AND COPY OF HIS BANK ACCOUNT FROM WHERE IT WAS CLAIMED THAT THE DEMAND DRAFT OF RS.1 00 000/- WAS ISSUED. AS PER THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE LD. FIRST APPELLATE AUTHORITY THE ASSESSEE HAS NOT FILED CERTIFIED COPY OF INCOME TAX RETURN AND BANK STATEMENT AND THE GIFT DEED IS ALSO NOT CERTIFIED BY THE CONCERNED DONOR AS CLAIMED BY THE ASSESSEE. KEEPI NG IN VIEW OF THE FACTS AND CIRCUMSTANCES DISCUSSED BY THE REVENUE AUTHORITIES I AM OF THE VIEW THAT THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE WERE NO T CERTIFIED BY CONCERNED ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 20 AUTHORITY OR BY THE AUTHOR OF THE DOCUMENT AND THE REFORE THESE DOCUMENTARY EVIDENCES ARE NOT ADMISSIBLE AS PER SECTIONS 62 & 6 3 OF THE EVIDENCE ACT 1872. AFTER GOING THROUGH THE DETAILED ORDER PASSED BY TH E LD. FIRST APPELLATE AUTHORITY ON THE ISSUE IN DISPUTE I AM OF THE VIEW THAT THE ASSESSEE FAILED TO DISCHARGE THE ONUS TO ESTABLISH THE GENUINENESS OF THE GIFT SHOWN BY HER IN THE INCOME TAX RETURN. 20. THE LD. FIRST APPELLATE AUTHORITY HAS ALSO COND UCTED ENQUIRY DURING THE APPELLATE PROCEEDINGS AND FOUND THAT THE AMOUNT IN DISPUTE THROUGH DEMAND DRAFT WAS ISSUED FROM THE BANK ACCOUNT OF 2664 OF M/S ESS AR PEE ADVERTISING DELHI AND SHRI GOVIND RAM WAS NOT FOUND IN THEIR BANK ACCOUNT AS ALLEGED BY THE ASSESSEE. AFTER GOING THROUGH THE ORDERS PASSED BY THE REVENU E AUTHORITIES ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AU THORITY I FIND THAT THE ASSESSEE HAS FAILED TO ESTABLISH HER RELATIONSHIP W ITH SO-CALLED DONOR SHRI GOVIND RAM AND ALSO FAILED TO ESTABLISH THE OCCASION FOR R ECEIVING SUCH GIFT AS PER THE EVIDENCES PRODUCED BY THE ASSESSEE BEFORE THE REVEN UE AUTHORITIES AS WELL AS BEFORE ME WHICH HAS RIGHTLY BEEN HELD BY THE REVENU E AUTHORITIES AS NOT ADMISSIBLE BECAUSE THE SAME HAS NOT BEEN ATTESTED B Y THE COMPETENT AUTHORITY OR BY THE DONOR. THE ASSESSING OFFICER HAS GIVEN FULL OP PORTUNITY TO THE ASSESSEE TO PRODUCE THE ALLEGED DONOR SHRI GOVIND RAM FOR CROSS EXAMINATION BEFORE HIM BUT THE ASSESSEE COULD NOT PRODUCE HIM. THEREFORE I A M OF THE VIEW THAT THE ASSESSEE HAS NOT SUBSTANTIATED HER CLAIM BEFORE THE ASSESSIN G OFFICER AS WELL AS BEFORE THE ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 21 LD. FIRST APPELLATE AUTHORITY AND EVEN BEFORE ME. NO DOUBT THE LD. COUNSEL FOR THE ASSESSEE HAS CITED VARIOUS DECISIONS IN SUPPORT OF HIS CONTENTION BUT THE SAME ARE NOT HELPFUL BECAUSE MERELY BY FILING AFFIDAVIT BANK ACCOUNT ACKNOWLEDGEMENT OF INCOME TAX RETURN BALANCE SHEET ETC. OF THE DON OR THE ONUS TO ESTABLISH THE GENUINENESS OF THE GIFT IS NOT PROVED. WHILE EXAMI NING THE GENUINENESS OF THE GIFT THE FACTS OF THE CASE ARE TO BE CONSIDERED HUMAN C ONDUCT AND PREPONDERANCE OF PROBABILITY ARE TO BE SEEN. WHEN THE MATTER IS OF SUCH GIFTS CLAIMED BY THE ASSESSEE THEN THE RELATIONSHIP BETWEEN THE DONOR A ND THE DONEE AND THE OCCASION FOR GIVING SUCH GIFTS ARE ALSO TO BE SEEN KEEPING I N VIEW OF THE DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. DURGA PRASAD MORE 82 ITR 540 WHEREIN THE HONBLE SUPREME COURT OF INDIA HAS HELD AS UNDER :- IT IS TRUE THAT APPARENT MUST BE CONSIDERED REAL U NTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE AP PARENT IS NOT THE REAL. IN A CASE OF THE PRESENT KIND A PARTY WHO RE LIES ON A RECITAL IN A DEED HAS TO ESTABLISH THE TRUTH OF THOSE RECITALS OTHERWISE IT WILL BE VERY EASY TO MAKE SELF SERVING STATEMENTS IN DOCUME NTS EITHER EXECUTED OR TAKEN BY A PARTY AND RELY ON THOSE RECI TALS. IF ALL THAT AN ASSESSEE WHO WANTS TO EVADE TAX IS TO HAVE SOME REC ITALS MADE IN A DOCUMENT EITHER EXECUTED BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEFT WIDE OPEN TO EVADE TAX. A LITTLE PROBING WAS SUFFICIENT IN THE PRESENT CASE TO SHOW THAT THE APP ARENT WAS NOT THE REAL. THE TAXING AUTHORITIES WERE NOT REQUIRED TO PUT ON BLINKERS WHILE LOOKING AT THE DOCUMENTS PRODUCED BEFORE THEM . THEY WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE RECITALS MADE IN THOSE DOCUMENTS. ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 22 FURTHER THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF WORKMAN OF ASSOCIATE RUBBER INDUSTRY LIMITED 157 ITR 77 HAS H ELD AS UNDER :- IT IS THE DUTY OF THE COURT IN EVERY CASE WHERE I NGENUITY IS EXPENDED TO AVOID TAXING AND WELFARE LEGISLATION T O GET BEHIND THE SMOKE SCREEN AND DISCOVER THE TRUE STATE OF AFFAI RS. THE COURT IS NOT TO BE SATISFIED WITH FORM AND LEAVE WELL ALONE THE SUBSTANCE OF A TRANSACTION. AVOIDANCE OF WELFARE LEGISLATION IS A S COMMON AS AVOIDANCE OF TAXATION AND THE APPROACH IN CONSIDERI NG PROBLEMS ARISING OUT OF SUCH AVOIDANCE HAS NECESSARILY TO BE THE SAME. 21. KEEPING IN VIEW OF THE ABOVE DISCUSSIONS SUPPOR TED BY THE DECISIONS RENDERED BY THE HONBLE SUPREME COURT OF INDIA THE ASSESSEE HAS NOT SUBSTANTIATED HER CLAIM BEFORE THE REVENUE AUTHORITIES AS WELL AS BEFORE ME. THEREFORE I AM OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED A WELL REASONED ORDER AFTER DISCUSSING IN DETAIL WITH THE SUPPORT OF VARIOUS DECISIONS OF HONBLE SUPREME COURT OF INDIA AS WELL AS THE DECIS IONS OF HONBLE HIGH COURTS. THEREFORE NO INTERFERENCE IS CALLED FOR IN THE IMP UGNED ORDER. I UPHOLD THE SAME BY DISMISSING THE APPEAL FILED BY THE ASSESSEE. IN THE RESULT ITA NO.294/AGR/2011 FILED BY THE ASSESSEE IS DISMISSED. 22. IN RESPECT OF ITA NOS.295 296 & 297/AGR/2011 F ILED BY SMT. KAMALJEET KALRA SHRI TRILOK SINGH KALRA AND SHRI GURMEET KAL RA RESPECTIVELY ALL FOR THE ASSESSMENT YEAR 2001-02 SINCE THE FACTS AND THE IS SUES INVOLVED IN ALL THESE ITA NOS.294/AGR/2011 - A.Y. 1999-2000 295 296 & 297/AGR/2011- A.YS. 2001-02 23 APPEALS ARE IDENTICAL AND BY FOLLOWING THE AFORESAI D DECISION TAKEN IN ITA NO.294/AGR/2011 IN THE CASE OF SMT. KAMALJEET KALRA FOR THE ASSESSMENT YEAR 1999-2000 I UPHOLD THE IMPUGNED ORDERS PASSED BY T HE CIT(A) IN RESPECT OF THE AFORESAID THREE APPEALS BY DISMISSING THE APPEALS F ILED BY THE ASSESSEES. IN THE RESULT ITA NOS.295 296 & 297/AGR/2011 FILED BY TH E ASSESSEES ARE DISMISSED. 23. IN THE RESULT ALL THE FOUR APPEALS FILED BY TH E ASSESSEES ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 15.11.2011). SD/- (H.S. SIDHU) JUDICIAL MEMBER DATE: 15 TH NOVEMBER 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R. ITAT AGRA BENCH AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY