Mrs Suman Verma, New Delhi v. ITO, New Delhi

ITA 3111/DEL/2012 | 2003-2004
Pronouncement Date: 31-10-2013 | Result: Partly Allowed

Appeal Details

RSA Number 311120114 RSA 2012
Assessee PAN ACGPV8174N
Bench Delhi
Appeal Number ITA 3111/DEL/2012
Duration Of Justice 1 year(s) 4 month(s) 11 day(s)
Appellant Mrs Suman Verma, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-10-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 31-10-2013
Date Of Final Hearing 17-10-2013
Next Hearing Date 17-10-2013
Assessment Year 2003-2004
Appeal Filed On 19-06-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G: NEW DELHI) BEFORE SHRI RAJ PAL YADAV JUDICIAL MEMBER AND SHRI T. S. KAPOOR ACCOUNTANT MEMBER ITA NO.3111/DEL/ 2012 (ASSESSMENT YEAR : 2003-04) SUMAN VERMA VS. ITO B-77 RAJ NAGAR PALAM COLONY WARD 26 (4) NEW DELHI. NEW DELHI. PAN:ACGPV8174N ASSESSEE BY : SHRI SALIL AGGRAWAL & SHRI SHAILESH GUPTA ADV REVENUE BY :SMT NIDHI SRIVASTAVA SR.DR ORDER PER T.S. KAPOOR AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XXIV NEW DELH I DATED 26.03.2012 FOR THE ASSESSMENT YEAR 2003-04. THE ASS ESSEE HAS TAKEM 11 GROUNDS OF APPEAL. GROUND NO.1 IS GENERAL. IN GROUN D NO.2 TO GROUND NO.6 THE ASSESSEE HAS RAISED GROUNDS AGAINST INITIATION OF PROCEEDINGS U/S148 AND HAS ALSO RAISED THE GROUND THAT ASSESSEE WAS NOT PR OVIDED PROPER OPPORTUNITY TO CONFRONT THE MATERIAL COLLECTED ON THE BASIS OF WHICH ADDITION WAS MADE. GROUND NO. 7 TO 10 RELATES TO THE GRIEVANCE OF ASSE SSEE THAT ADDITION WAS SUSTAINED BY LD. CIT (A) DESPITE THE FACT THAT ALL EXPLANATION AND EVIDENCES ITA NO.3111/DEL/2012 2 IN ORDER TO SUPPORT THE GENUINENESS AND CREDITWORTH INESS OF DONOR WERE PLACED BEFORE ASSESSING OFFICER AND FURTHER CIT (A) HAD IGNORED TO ISSUE SUMMONS TO DONOR DESPITE SPECIFIC REQUEST BY ASSESS EE. GROUND NO.11 RELATES TO UPHOLDING OF INTEREST U/S 234A 234B AND 234C. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEES CASE WAS REOPENED U/S 148 AND IN RESPONSE TO NOTICE U/S 148 THE ASSESSEE HAD STATED THAT RETURN FILED U/S 139 MAY BE TREATED AS RETURN FILED IN RES PONSE TO NOTICE U/S 148. THE ASSESSMENT WAS COMPLETED AFTER MAKING ADDITION OF R S.5 26 050/-. THE OPERATIVE PORTION OF ASSESSMENT ORDER PASSED ON 06. 12.2010 IS AS UNDER: 2. VIDE NOTICE U/S 142(1) DATED 07.09.2010 ASSESSE E WAS ASKED TO GIVE FULL DETAILS AS TO WHY RS.501000/- RE CEIVED AS BOGUS ACCOMMODATION ENTRIES SHOULD NOT BE ADDED AS INCOME FROM UNDISCLOSED SOURCES. THE ASSESSEE WAS ALSO ASK ED TO EXPLAIN WHY 5% OF RS.501000/- RECEIVED SHOULD NOT B E ADDED TO INCOME AS COMMISSION PROVIDED FOR AVAILING THE ABOV E ACCOMMODATION ENTRIES. THE DIT (INV) NEW DELHI HAD CARRIED OUT EXTENSIVE INVESTIGATIONS AND REPORTED THAT JAGD ISH MALIK AND GANGA INFIN PVT. LTD. IS AN ENTITY UTILIZED FOR PROVIDING ACCOMMODATION ENTRIES AND COMMISSION WAS PROVIDED B Y THE BENEFICIARY TO THE ENTRY OPERATOR FOR THE ACCOMMODA TION ENTRY. ACCORDINGLY RS.501000/- AND 5% OF THE ACCOMMODATION ENTRY COMING TO RS.25050/- IS ADDED BACK TO THE INCOME OF THE ASSESSEE AND BROUGHT TO TAX FOR THE A Y 2004-05. I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCO ME/ FURNISHED INACCURATE PARTICULARS OF INCOME AND THEREFORE PENA LTY PROCEEDINGS U/S 271(1) (C) ARE INITIATED ON THIS PO INT. 3. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE CIT ( A) AND RAISED VARIOUS GROUNDS AGAINST REOPENING OF THE CASE U/S 148 AND A LSO FILED SUBMISSIONS ON ITA NO.3111/DEL/2012 3 MERITS OF THE CASE. THE LD. CIT (A) AFTER HEARING T HE SUBMISSIONS OF ASSESSEE DISMISSED THE GROUNDS OF APPEAL RELATING TO REOPENI NG AND ALSO HELD THE GIFT RECEIVED BY ASSESSEE WAS BOGUS AND THUS HAD UPHELD THE ADDITION THE LD. CIT (A) HAS RELIED UPON A NUMBER OF CASE LAWS. 4. AGGRIEVED THE ASSESSEE IS BEFORE US. AT THE OUTS ET THE LD. AR ARGUED THAT THE ASSESSEE HAD FILED ALL DOCUMENTS RELATING TO RECEIPT OF GIFT WITH THE ASSESSING OFFICER AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO PAPER BOOK 26 TO 34 WHEREIN A COPY OF ITR OF DONOR ALONG WITH HIS BALANCE SHEET AFFIDAVIT AND COPY OF BANK PASSBOOK ALONG WITH COPY OF PAN CARD AND MEMORANDUM OF GIFT DEED WAS PLACED. THE LD. AR FURT HER ARGUED THAT ASSESSING OFFICER WITHOUT COMMENTING UPON THE DOCUM ENTS PROCEEDED TO MAKE THE ADDITION ON THE BASIS OF DIT INVESTIGATION REPORT. HE FURTHER STATED THAT ASSESSING OFFICER DID NOT APPLY HIS MIND AND M ADE ADDITION IN A MECHANICAL MANNER. HE FURTHER ARGUED THAT LD. CIT ( A) ALSO DID NOT CONSIDER THE DOCUMENTS SUBMITTED BY ASSESSEE AND HE IGNORED THE REQUEST OF ASSESSEE TO ISSUE NOTICE U/S 131 TO THE DONOR AND OUR ATTENT ION WAS INVITED TO PAPER BOOK PAGE 51 IN THIS RESPECT. IN VIEW OF THE DOCUM ENTS FILED BY ASSESSEE BEFORE ASSESSING OFFICER THE LD. AR SUBMITTED THAT ASSESSING OFFICER SHOULD HAVE FIRST INVESTIGATED THESE DOCUMENTS AND THEN SHOULD HAVE MADE ANY ADDITION IF REQUIRED. RELIANCE IN THIS RESPECT WAS PLACED ON A NUMBER OF ITA NO.3111/DEL/2012 4 CASE LAWS HIGHLIGHTING THE POINT THAT ONCE ASSESSEE HAD SUBMITTED COMPLETE PARTICULARS OF INVESTORS SUCH AS PAN NUMBER BANK S TATEMENT COPY OF ITR ETC. THE BURDEN WAS SHIFTED TO ASSESSING OFFICER AN D ASSESSING OFFICER WITHOUT CONSIDERING THE DOCUMENTS CANNOT MAKE ADDIT ION. SPECIFIC RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: A) CIT VS. GANGESHWARI METAL (PVT.) LTD. IN ITA NO. 597/2012 REPORTED IN 30 TAXMANN. COM 328 DECIDED BY HONBLE DELHI HIGH COURT. B) CIT VS. GOEL SONS GOLDEN ESTATE PVT. LTD. REPORT ED IN ITA 212/2012 DECIDED BY HONBLE DELHI HIGH COURT. C) ITO VS. I. C. S. HOTELS PVT. LTD. REPORTED IN IT A NO.2046/DEL/2010 DECIDED BY DELHI ITAT. D) ITO VS. M/S EXCELLENT TOWN PLANNERS PVT. LTD. IN ITA NO. 871/DEL/2010 DECIDED BY DELHI ITAT. E) DCIT VS. M/S GLOBAL BUILDWELL (INDIA) LTD. REPOR TED IN ITA NO.4210/DEL/2010 DECIDED BY DELHI ITAT. F) ITO VS. M/S ON EXIM PVT. LTD. REPORTED IN ITA NO . 1116/DEL/2011 DECIDED BY DELHI BENCH. IN VIEW OF THE ABOVE JUDICIAL PRONOUNCEMENTS THE LD. AR SUBMITTED THAT LD. CIT (A) HAS WRONGLY UPHELD THE ADDITION. 5. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAVILY RELIED UPON THE ASSESSMENT ORDER AND ORDER OF LD. CIT (A) AND ARGUED THAT DONOR WAS NOT A MAN OF MEANS AND HIS INCOME WAS RS.65 000 /- ONLY THEREFORE ITA NO.3111/DEL/2012 5 CREDITWORTHINESS AND GENUINENESS OF THE DONOR WAS N OT PROVED AND THEREFORE HE ARGUED THAT LD. CIT (A) HAS RIGHTLY U PHELD THE ADDITION. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE GON E THROUGH THE MATERIAL PLACED ON RECORD. THE LD. AR HAS NOT ARGUE D ON GROUND NO.2 TO 6 THEREFORE GROUND NO.2 TO 6 ARE DISMISSED AS NOT PR ESSED. GROUND NO.1 IS GENERAL AND DO NOT REQUIRE ANY COMMENTS. GROUND NO. 11 IS A CONSEQUENTIAL GROUND AND DO NOT REQUIRE ANY ADJUDICATION. 7. AS REGARDS THE ADDITION OF RS.50 1000/-MADE BY ASSESSING OFFICER WE FIND THAT ASSESSEE HAD PLACED ON RECORD VARIOUS DOCUMENTS TO PROVE GENUINENESS AND CREDITWORTHINESS OF DONOR. HOWEVER ASSESSING OFFICER DID NOT CONSIDER THE SAME AND ON THE BASIS OF DIT INVES TIGATION MADE THE ADDITIONS. THE LD. CIT (A) ALSO DID NOT CONSIDER TH ESE AND RELYING UPON A NUMBER OF CASE LAWS DISMISSED THE APPEAL OF ASSESSE E. THE CASE LAWS RELIED UPON BY LD. AR RELATES TO SHARE APPLICATION MONEY R ECEIVED BY VARIOUS COMPANIES ASSESSE WHEREAS THE PRESENT CASE RELATES TO A GIFT MADE BY AN INDIVIDUAL TO A INDIVIDUAL. THERE IS A LOT OF DIFFE RENCE BETWEEN AN INVESTMENT AND A GIFT. IN THE CASE OF AN INVESTMENT THE ASSES SEE EXPECTS TO RECEIVE BACK HIS INVESTMENT WITH CAPITAL APPRECIATION WHEREAS IN THE CASE OF GIFT THE ASSESSEE PARTS WITH HIS WEALTH TO THE EXTENT OF GIF T. THEREFORE CASE LAWS RELIED UPON BY LD. AR IS NOT APPLICABLE TO THE FACT S AND CIRCUMSTANCES TO THE ITA NO.3111/DEL/2012 6 CASE. HOWEVER WE FIND THAT ASSESSEE HAD DISCHARGED HER INITIAL BURDEN AND ASSESSING OFFICER SHOULD HAVE CONSIDERED THE DOCUME NTS FILED BY ASSESSEE IN SUPPORT OF HER CLAIM. THE LD. CIT (A) ALSO DID NOT COMMENT UPON THE DOCUMENTS FILED BY ASSESSEE AND EVEN DID NOT ACCEPT THE REQUEST OF ASSESSEE TO SUMMON THE DONOR FOR EXAMINATION. THEREFORE KEE PING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES WE ARE OF THE V IEW THAT CASE OF THE ASSESSEE BE RE-ADJUDICATED BY ASSESSING OFFICER. IN VIEW OF THE ABOVE WE SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE FILE TO THE OFFICE OF ASSESSING OFFICER FOR RE-ADJUDICATION WHO WILL PASS A SPEAKI NG ORDER FOR MAKING ADDITIONS IF ANY. NEED LESS TO SAY THAT ASSESSEE WI LL BE PROVIDED PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. IN VIEW OF THE ABOVE THE APPEAL FILED BY ASSESSE E IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 31 ST /10/ 2013 SD/- SD/- (RAJ PAL YADAV) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 31 ST DAY OF OCTOBER 2013 S.SINHA COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT ITA NO.3111/DEL/2012 7 3. CIT 4. CIT (A) 5. CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.