ACIT, New Delhi v. Sh. Subhranshu Gupta, Noida

ITA 3886/DEL/2010 | 2007-2008
Pronouncement Date: 18-03-2011 | Result: Dismissed

Appeal Details

RSA Number 388620114 RSA 2010
Assessee PAN ACMPG5103E
Bench Delhi
Appeal Number ITA 3886/DEL/2010
Duration Of Justice 7 month(s)
Appellant ACIT, New Delhi
Respondent Sh. Subhranshu Gupta, Noida
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 18-03-2011
Date Of Final Hearing 09-03-2011
Next Hearing Date 09-03-2011
Assessment Year 2007-2008
Appeal Filed On 17-08-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G DELHI BEFORE SHRI C.L. SETHI AND SHRI K.G. BANSAL ITA NO. 3886(DEL)/2010 ASSESSMENT YEAR: 2007-08 ASSTT. COMMISSIONER OF SHRI SUBHRANSHU GUPTA INCOME-TAX CIRCLE 8(1) VS. D-54 SECTOR-26 NOIDA-201301. NEW DELHI. PAN-ACMPG5103E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KISHORE B DR RESPONDENT BY : SHRI P.K. JAIN C.A. ORDER PER K.G. BANSAL : AM THE ONLY GROUND TAKEN BY THE REVENUE IN THIS A PPEAL IS THAT THE LD. CIT(APPEALS) ERRED IN DELETING THE ADDITION OF RS. 10.00 LAKH MADE BY THE AO U/S 68 OF THE INCOME-TAX ACT 1961. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN ON 22.6.2007 DECLARING TOTAL INCOME OF RS. 3 40 080/- . IN THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THREE CRE DITS IN THE BANK ACCOUNT THE DETAILS OF WHICH ARE AS UNDER:- S. NO. AMOUNT (RS.) REMARKS (I) 3 00 000/- VIDE CHEQUE DATED 24.7.2006 (II) 6 50 000/- VIDE CHEQUE DATED 18.01.2007 (III) 50 000/- VIDE CHEQUE DATED 23.01.2009 ITA NO.3886(DEL)/2010 2 2.1 IT WAS SUBMITTED THAT THESE CHEQUES WERE RECEIVED AS GIFT FROM THE BROTHER SHRI SNEHANGSHU GUPTA WHO IS A NO N-RESIDENT INDIAN. VARIOUS DOCUMENTS WERE FURNISHED TO PROVE THE GE NUINENESS OF THE GIFTS RECEIVED FROM THE BROTHER. HOWEVER THE AO DID NOT AGREE WITH THE SUBMISSIONS OF THE ASSESSEE. HE ADDED THIS AMOU NT TO THE INCOME AS UNEXPLAINED DEPOSITS. THEREFORE THE TOTAL INCOME WAS COMPUTED AT RS. 13 40 030/-. 3. AGGRIEVED BY THIS ORDER THE ASSESSEE MOVED AN APPEAL BEFORE THE CIT(APPEALS)-XI NEW DELHI. HE DISPOSED OFF THE APPEAL ON 23.06.2010 IN APPEAL NO. 71/09-10 IN WHICH THE ADDITION IN RESPECT OF THESE THREE CREDITS WAS DELETED. THE REVENUE IS IN APPEAL AGAINST THE FINDINGS OF THE CIT(APPEALS). 4. BEFORE US THE LD. COUNSEL DREW OUR ATTENTION TOWARDS THE OBJECTIONS OF THE AO ON THE BASIS OF WHICH THE ADDITION WAS MADE. THESE ARE AS UNDER:- RS. 3 00 000/- RECEIVED ON 24.07.06 WAS FOR THE OCCASION OF HIS DAUGHTERS BIRTHDAY WHICH WAS BEING 21 ST SEPTEMBER. RS. 6 50 000/- RECEIVED ON 18.01.07. ITA NO.3886(DEL)/2010 3 RS. 50 000/- RECEIVED ON 23.01.07 WAS FOR THE OCCASION OF HIS WIFES BIRTHDAY WHICH WAS BEING 17 TH JANUARY. THESE FACTS ARE MADE UP TO SUIT THE ASSESSEES CIRCUMSTANCES AS THE FIRST RECEIPT WAS WELL BEFORE THE BIRTHDAY AND 2 ND AND 3 RD WERE RECEIVED FOR ONE OCCASION WHICH IS NOT POSSIBL E AS THE INCIDENCE OF GIFT CANNOT BE CONTINUOUS. THE ASSESSEE COULD NOT REMEMBER SUCH LARGESSE BY HIS BROTHER IN THE PAST AND ALSO HOW THESE PAYMENTS WERE REC EIVED I.E. HOW THE CHEQUES WERE TRANSMITTED TO HIM. THE ASSESSEE HAS FILED COPY OF GIFT DECLARATIO N. THE SIGNATURE OF THE COPY IS ORIGINAL INDICATING THAT THE ORIGINAL IS NOT SIGNED. THE COPY OF NRE ACCOUNT HAS NOT BEEN SUBMITTED. 4.1 THEREAFTER HE DREW OUR ATTENTION TOWARDS T HE FINDINGS RECORDED BY THE LD. CIT(APPEALS) IN PARAGRAPH NOS. 2.4 2.5 2 .6 AND 2.7 OF THE IMPUGNED ORDER IN WHICH THE FACTS WERE CONSID ERED AND THE ADDITION WAS DELETED. HIS CASE IS THAT THE AMOUNTS WERE RECEIVED FROM THE REAL BROTHER AND AMPLE EVIDENCE WAS PRODUCED BEFORE THE AO TO SUBSTANTIATE GENUINENESS OF THE GIFTS. THEREFORE THE LD. CIT(APPEALS) RIGHTLY DELETED THE ADDITION. HE RELIED ON THE IMPUGNE D ORDER THE RELEVANT PORTIONS OF WHICH ARE REPRODUCED BELOW:- 2.4 THE STATEMENT OF THE APPELLANT WAS RECO RDED UNDER OATH U/S 131 BY THE AO. IN THE STATEMENT THE APPELLANT STATED THAT HE DERIVED SALARY INCOME FROM SGAG CONSULTANTS P. LTD. RENTAL INCOME AND INCOME FRO M OTHER SOURCE VIZ. INTEREST. HE STATED THAT SHRI SN EHANGSHU GUPTA ITA NO.3886(DEL)/2010 4 IS HIS REAL BROTHER AND HE IS OUT OF INDIA SINC E 1993. IT WAS ALSO STATED THAT BECAUSE OF ACUTE KIDNEY PROBL EM OF HIS BROTHER HE DONATED ONE OF HIS KIDNEYS TO HIM I N 2000 WHEN HE CAME FOR MEDICAL TREATMENT TO INDIA. IT WAS ALSO STATED THAT HIS BROTHER USED TO COME TO INDIA 3 TO 4 TIM ES IN A YEAR AND WHILE IN INDIA HE STAYED WITH HIM. IT WAS ALSO STATED THAT HE HAS RECEIVED THE GIFT IN 3 INSTALLMENT S FOR VARIOUS FAMILY OCCASIONS LIKE BIRTHDAY OF HIS DAUGHTER OR WIFE. 2.5 THE RECORD FURTHER REVEALS THAT HIS BROT HER SHRI SNEHANGSHU GUPTA IS A QUALIFIED CHARTERED ACCOU NTANT FROM THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA AND WAS EMPLOYED WITH AN ESTHONIAN COMPANY AND WAS DRA WING ANNUAL SALARY US$ 1 02 676/- AS ON 31.3.2003. 2.6 THE BASIC PRE-REQUISITE FOR ANY CASH CREDI T TRANSACTION IS IDENTITY OF THE CREDITOR GENUINENESS OF THE TRA NSACTION AND CREDITWORTHINESS OF THE PARTY. IF ALL THE PRE-RE QUISITES COULD NOT BE ESTABLISHED THE AMOUNT OF CREDIT MAY BE TREATED AS UNEXPLAINED CASH CREDIT WITHIN THE MEANING OF SEC TION 68 OF THE ACT. THE RECORD CLEARLY REVEALS THAT THE A PPELLANT HAS RECEIVED THE FUND AS GIFT FROM HIS OWN BROTHER WHO IS A CHARTERED ACCOUNTANT BY PROFESSION AND HAS BEEN IN ABROAD FOR THE PAST FEW YEARS. THE BROTHER IS DRAWING AN ANNUAL SALARY OF US$ 1 02 676/- DURING THE PERIOD UNDER CONSIDERATION. FURTHER THE BROTHER IS MAINTAIN ING A BANK ACCOUNT WITH CORPORATION BANK HAVING NRO A/C NO. SB/04/980010. ALL THE PAYMENTS WERE RECEIVED B Y THE APPELLANT IN HIS BANK ACCOUNT MAINTAINED WITH CENTURIAN BANK OF PUNJAB LTD. ( PRESENTLY HDFC) NOIDA BRAN CH UP BEING SB A/C NO. 101501000016176 SHOWING THE CRE DIT OF GIFT RECEIVED FROM HIS BROTHER. THERE ONE TO ONE CORRESPONDENCE FROM THE AMOUNT OF GIFT RECEIVED FROM THE BROTHER AND BEING CREDITED TO THE ACCOUNT OF THE APPELLANT. IT WAS STATED THAT GIFT WAS GIVEN ON THE OCCASION O F BIRTHDAY OF THE DAUGHTER AND WIFE OF THE APPELLANT. 2.7 TO MY UNDERSTANDING THE APPELLANT HAS CLEA RLY DEMONSTRATE ALL THE REQUIREMENTS OF THE DEPTT. F IRST OF ALL THERE IS NO ESTABLISHMENT OF THE FACT THAT IT W AS CASH CREDIT ITA NO.3886(DEL)/2010 5 AND NOT GIFT AS CLAIMED BY THE APPELLANT. IN RE ALITY IT WAS A GIFT RECEIVED BY A BROTHER FROM ANOTHER BROTHER. THE IDENTITY OF THE PERSON HAS FULLY BEEN ESTABLISHED IN AS MUCH THE COPY OF THE PASSPORT OF THE DONOR WAS SUBMITTED TO THE DEPTT. AND IT IS NOT THE CASE OF THE AO THAT SUCH DONOR DOE S NOT EXIST AT ALL. THE GENUINENESS OF THE TRANSACTION IS ALS O ESTABLISHED IN AS MUCH AS THE ENTIRE FUND HAS BEEN GIVEN FR OM NRO ACCOUNT TO THE APPELLANT TO HIS SB A/C MAINTA INED WITH HDFC BANK (THE THEN CENTURIAN BANK OF PUNJAB LT D.). THE CREDITWORTHINESS OF THE DONOR IS BEYOND ANY DOU BT IN AS MUCH AS HE DREW A SALARY OF US$ 1 02 676/- DU RING THE RELEVANT PERIOD UNDER CONSIDERATION. HENCE NONE OF THE PRE- REQUISITE FOR INVOKING SECTION 68 DOES SATISF Y HERE. IT IS TO BE REMEMBERED THAT THE APPELLANT BEING THE ELD ER BROTHER HAS DONATED ONE OF HIS OWN KIDNEY TO THE YOUNGER BROTHER AND THIS SHOWS A TYPICAL BONDAGE IN AN INDIAN FAMIL Y AND IF SUCH NRI BROTHER ON SOME SPECIAL OCCASION GIVES SOM E GIFT TO THE RELATION OF THE BROTHER HOW THE QUESTION OF U NEXPLAINED CASH CREDIT WOULD COME INTO PLAY? THE APPELLAN T HAS ESTABLISHED ALL THE MATERIAL FACTS WHICH COUL D NULLIFY THE PRESUMPTION OF THE AO THAT THE GIFT IS NOT A GIFT BUT AN UNEXPLAINED CASH CREDIT. THERE WILL BE A GREA T MISCARRIAGE OF JUSTICE IF SUCH DONATIONS/GIFTS RECEIVED F ROM ONES OWN BROTHER ARE TREATED AS UNEXPLAINED CASH CREDI T U/S 68. I FIND ABSOLUTELY NO JUSTIFICATION FOR INVOKING O F SECTION 68 AND THE ACTION OF THE AO IS HEREBY DELETED. 4.2 IN REPLY THE LD. DR RELIED ON THE ORDER OF THE AO. 5. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. WE FIND THAT THE AMOUNT HAS BEEN RE CEIVED FROM THE BROTHER WHO IS A NON-RESIDENT PERSON DRAWING THE SALA RY OF ABOUT US$ 1.00 LAKH PER ANNUM. THIS IS EVIDENCED BY THE CERTIFICAT E OF THE EMPLOYER PLACED ITA NO.3886(DEL)/2010 6 ON PAGE NO. 24 OF THE PAPER BOOK. THERE WAS A SPECIAL RELATIONSHIP BETWEEN THE BROTHERS AS THE ASSESSEE HAD DONATED ONE KIDNEY TO THE DONOR BROTHER. THE AMOUNT HAS BEEN GIFTED FROM NRE ACCO UNT MAINTAINED WITH HDFC BANK. THE GENUINENESS OF THE DONOR IS NOT IN DOUBT. HIS CAPACITY IS PROVED BECAUSE OF HIS SALARY INCOME BEING M ORE THAN US$ 1.00 LAKH PER ANNUM. THE GIFTS ARE EVIDENCED BY THREE D ECLARATIONS DULY SIGNED BY THE DONOR AND ACCEPTED BY THE ASSESSEE WH ICH HAVE BEEN PLACED IN THE PAPER BOOK ON PAGE NOS. 15 TO 17. IN SUCH CIRCUMSTANCES WE ARE OF THE VIEW THAT THE LD. CIT(APPEALS) APPROACHED T HE MATTER IN THE RIGHT WAY AND DELETED THE ADDITION. WE CONCUR WITH HIS FINDING IN THIS MATTER. 6. IN THE RESULT THE APPEAL IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 18 MARCH 2011. SD/- SD/- (C.L. SETHI) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 18TH MARCH 2011. SP SATIA COPY OF THE ORDER FORWARDED TO: SHRI SUBHRANSHU GUPTA NOIDA-201301. ACIT CIRCLE 8(1) NEW DELHI. CIT(A) CIT THE DR ITAT NEW DELHI. ASSISTANT REG ISTRAR.