The DCIT, Circle-3,, Surat v. Shri Vijay Kumar Khemani, Surat

ITA 3205/AHD/2011 | 2008-2009
Pronouncement Date: 30-03-2012 | Result: Dismissed

Appeal Details

RSA Number 320520514 RSA 2011
Assessee PAN AGFPK2444R
Bench Ahmedabad
Appeal Number ITA 3205/AHD/2011
Duration Of Justice 3 month(s) 10 day(s)
Appellant The DCIT, Circle-3,, Surat
Respondent Shri Vijay Kumar Khemani, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 30-03-2012
Assessment Year 2008-2009
Appeal Filed On 20-12-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD . ! ! '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER ./ I.T.A. NO.3205/AHD/2011 ( ! & ! & ! & ! & / / / / ASSESSMENT YEAR : 2008-09) DCIT CIRCLE-3 SURAT ! ! ! ! / VS. SHRI VIJAY KUMAR KHEMANI B-1004 SURYA PALACE NR.ANUVARTH DWAR CITY LIGHT SURAT ' '# ./() ./ PAN/GIR NO. : AGFPK 2444 R ( '* / // / APPELLANT ) .. ( + '*/ RESPONDENT ) '* - '/ APPELLANT BY : SHRI SAMIR TEKRIWAL SR.D.R. + '* . - ' / RESPONDENT BY : SHRI S.N.SOPARKAR SR.ADV. WITH MS.URVASHI SHODHAN !/ . 0#/ // / DATE OF HEARING : 23/02/2012 1 & . 0# / DATE OF PRONOUNCEMENT : 30/3/12 '2/ O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WHI CH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-II SURAT DA TED 27/09/2011 PASSED FOR A.Y. 2008-09 AND THE SOLITARY SUBSTANTIA L GROUND READS AS UNDER:- [1] ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A)-II SURAT HAS ERRED IN DELETING ADDITION OF RS.30 00 000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S.68/56V OF TH E I.T. ACT WITHOUT APPRECIATING THE FACT THAT ASSESSEE HAS FAILED TO P RODUCE THE DONOR ALONG WITH ORIGINAL COPY OF VISA PASSPORT AND DOCU MENT FOR THE RELATIONSHIP TO PROVE THE GENUINENESS OF THE GIFT. ITA NO. 3205/AHD/2011 DCIT VS. SHRI VIJAY KUMAR KHEMANI ASST.YEAR - 2008-09 - 2 - 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) OF THE I.T. ACT 1961 DATED 30.1 1.2010 WERE THAT THE RESPONDENT-ASSESSEE IS SUBJECT TO TAX FOR THE YEAR UNDER CONSIDERATION UNDER THE STATUS OF INDIVIDUAL. THE E-RETURN OF I NCOME FILED BY THE ASSESSEE DECLARING TOTAL INCOME AT ` .50 92 150/-. ON PERUSAL OF CAPITAL ACCOUNT IT WAS NOTICED THAT THE ASSESSEE HAS RECEI VED A GIFT OF RS.30 LACS FROM ONE MR.AMIT KHEMANI. IN COMPLIANCE OF SHOW-CA USE NOTICE THE ASSESSEE HAS EXPLAINED AS UNDER:- DETAILS OF GIFT RECEIVED FROM SON SHRI AMIT KHEMAN I: KINDLY NOTE THAT AMIT KHEMANI IS A NRI STAYING IN DUBAI AT THAT RELEVANT TIME. WE ARE ENCLOSING THE TT TRANSFER VOUCHERS ISSUED BY ALUKKAS EXCHANGE DTD. 30.08.07 FOR 49357 AED IN LOCAL CURRE NCY WHICH IS CONVERTED IN NI RS.5 50 000/- VOUCHER DTD. 30.08.0 7 BY ALUKKAS EXCHANGE FOR 85253 AED IN LOCAL CURRENCY WHICH IS C ONVERTED IN NIR RS.9 50 000/- AND VOUCHER DTD. 30.08.2007 ISSUE D BY HABIB EXCHANGE COMPANY FOR 134550 AED IN LOCAL CURRENCY W HICH IS CONVERTED IN NRI RS.15 00 000/-. FURTHER WE ARE AL SO ENCLOSING THE PAYMENT ADVICE FROM THE BANK IN UAE FORM WHERE CASH OF 269300 AED WAS WITHDRAWN WHICH WAS FURTHER REMITTE D TO NRI A/C. OF THE AMIT KHEMANI. COPY OF NRI BANK A/C. OF SHRI AMIT KHEMANI IS ENCLOSED WHEREIN THE ABOVE SAID SUMS WER E RECEIVED AND GIFT AMOUNT WAS TRANSFERRED TO VIJAY KHEMANI BA NK A/C. COPY OF GIFT DEED IS ALSO ENCLOSED. 2.1. HOWEVER THE ASSESSING OFFICER WAS NOT CONVINC ED AND ASSESSED THE SAME BY INVOKING THE PROVISIONS OF SECTION 68 R .W.S. 56(V) OF THE I.T.ACT 1961. ITA NO. 3205/AHD/2011 DCIT VS. SHRI VIJAY KUMAR KHEMANI ASST.YEAR - 2008-09 - 3 - 3. AFTER HEARING THE SUBMISSIONS THE LEARNED CIT(A PPEALS) HAS GRANTED RELIEF BY ASSIGNING FOLLOWING REASONS:- 4. I HAVE GONE THROUGH THE FACTS OF THE CASE. FRO M THE XEROX COPY OF THE PASSPORT IT IS EVIDENT THAT THE ASSESSE E WAS THE FATHER OF THE DONOR. THIS FACT IS CLEARLY MENTIONED ON THE L AST PAGE OF THE PASSPORT WHICH WAS BEFORE THE ASSESSING OFFICER. T HERE WAS NO REQUIREMENT OF PRODUCTION OF ORIGINAL DOCUMENT TO E STABLISH THE RELATIONSHIP OF FATHER AND SON BETWEEN THE DONEE AN D DONOR UNLESS THE ASSESSING OFFICER HAD MATERIAL IN HIS POSSESSIO N WHICH WOULD SHOW OTHERWISE. NO SUCH MATERIAL HAS BEEN DISCLOSE D IN THE ORDER. SINCE THE RELATIONSHIP HAS BEEN ESTABLISHED NO ADD ITION U/S.56(V) COULD BE MADE. THE ADDITION U/S.68 HAS BEEN MADE O N THE GROUND THAT THE IDENTITY AND CREDITWORTHINESS OF THE DONOR HAS NOT BEEN ESTABLISHED. THE CREDITWORTHINESS WAS DOUBTED BECA USE THE VISA WAS STAMPED NOTE FOR EMPLOYMENT. THE IDENTITY OF THE DONOR WAS ESTABLISHED FROM THE PASSPORT AND HIS BANK ACCO UNT. THE LETTER OF THE APPELLANT DATED 16/11/2010 ADDRESSED TO THE ASSESSING OFFICER A COPY OF WHICH HAS BEEN SUBMITTED IN APPE AL PROCEEDINGS ALONG WITH EVIDENCES HAD EXPLAINED THE CORRECT POS ITION REGARDING EMPLOYMENT TO THE AO. THE SOURCE OF FUND AVAILABLE WITH THE DONOR WAS ALSO PROVIDED TO THE AO. THERE IS NO FIN DING THAT THE DOCUMENTS SUBMITTED WERE NOT GENUINE OR THAT THE AS SESSEE HAD TRANSFERRED FUNDS TO THE DONOR WHO IN TURN HAD GIVE N IT BACK AS GIFT. FROM THE COPY OF PASSPORT AND THE COPY OF B ANK INSTRUMENTS ETC. (COPIES SUBMITTED BEFORE ME) THROUGH WHICH FUN DS WERE TRANSFERRED ESTABLISHED THE CLAIM OF THE APPELLANT. IN MY OPINION NO ADVERSE INFERENCE COULD BE DRAWN SIMPLY FROM THE FACT THAT THE DONOR WAS NOT PRODUCED ALONG WITH ORIGINAL PASSPORT . THE IDENTITY AND CREDITWORTHINESS OF THE DONOR AND HIS RELATIONS HIP WITH THE ASSESSEE IS ESTABLISHED ON THE BASIS OF DOCUMENTS S UBMITTED. THE ADDITION MADE ON ACCOUNT OF GIFT BEING TREATED AS I NCOME U/S.68 AND U/S.56(V) OF THE ACT IS DELETED. THIS GROUND I S ALLOWED. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES AND ON PERUSAL OF THE EVIDENCES PLACED ON RECORD SUCH AS GIFT DECLA RATION DEED BANK STATEMENT OF DONOR CREDIT ADVICE OF BANK PASSPOR T OF THE DONOR AND ITA NO. 3205/AHD/2011 DCIT VS. SHRI VIJAY KUMAR KHEMANI ASST.YEAR - 2008-09 - 4 - SPECIALLY THE RELATIONSHIP WITH THE DONOR I.E. A G IFT BETWEEN FATHER AND SON WE HEREBY AFFIRM THE FACTUAL AS ALSO LEGAL FIN DING OF LD.CIT(A). SINCE THE RELATIONSHIP CREDITWORTHINESS IDENTITY AND THE GENUINENESS OF THE DONOR HAS DULY BEEN ESTABLISHED THEREFORE WE ARE OF THE CONSIDERED VIEW THAT THE ADDITION WAS RIGHTLY DELETED BY THE L D.CIT(A). GROUND RAISED BY THE REVENUE IS HEREBY DISMISSED. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. SD/- SD/- ( . ! ! ) ( ) '# ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 30/ 03 /2012 30..! .!../ T.C. NAIR SR. PS '2 . +4 5'4& '2 . +4 5'4& '2 . +4 5'4& '2 . +4 5'4&/ COPY OF THE ORDER FORWARDED TO : 1. '* / THE APPELLANT 2. + '* / THE RESPONDENT 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-II SURAT 5. 49: +! / DR ITAT AHMEDABAD 6. :;