SMT BANARSI DEVI, Alwar v. ITO, Alwar

ITA 428/JPR/2011 | 1997-1998
Pronouncement Date: 18-11-2011 | Result: Allowed

Appeal Details

RSA Number 42823114 RSA 2011
Bench Jaipur
Appeal Number ITA 428/JPR/2011
Duration Of Justice 6 month(s) 12 day(s)
Appellant SMT BANARSI DEVI, Alwar
Respondent ITO, Alwar
Appeal Type Income Tax Appeal
Pronouncement Date 18-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 18-11-2011
Date Of Final Hearing 09-11-2011
Next Hearing Date 09-11-2011
Assessment Year 1997-1998
Appeal Filed On 06-05-2011
Judgment Text
1 ITA 428-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER ITA NO. 428/JP/2011 ASSTT. YEAR : 1997-98. SMT. BANARSI DEVI VS. THE INCOME-TAX OFFICER C/O SHAKTI AGENCIES WARD 2(2) KEDAL GANJ ALWAR. ALWAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KRANTI MEHTA RESPONDENT BY : - DATE OF HEARING : 09.11.2011 DATE OF PRONOUNCEMENT : 18.11.2011 ORDER DATE OF ORDER : 18/11/2011. PER R.K. GUPTA J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 1997-98. 2. THE ASSESSEE IS OBJECTING IN CONFIRMING THE REOP ENING OF THE ASSESSMENT UNDER SECTION 147/148 ON VARIOUS COUNTS AND OBJECTING IN CONFIRMING THE ADDITION OF RS. 2 00 000/- TREATING THE TWO GIFTS RECEIVED BY ASSES SEE AS INGENUINE. 3. THE AO ISSUED NOTICE UNDER SECTION 148 ON 11.3.2 005 FOR THE ASSESSMENT YEAR 1997-98. IN FACT AN ADDITION OF RS. 4 50 000/- WA S MADE IN THE HANDS OF THE ASSESSEE FOR ASSESSMENT YEAR 2001-02. THIS ADDITION OF RS. 4 50 000/- WAS MADE BY NOT ACCEPTING THE EXPLANATION THAT ASSESSEE HAS RECEIVED GIFTS OF RS. 4 50 000/- I.E. RS. 1 00 000/- EACH FROM 2 SHRI DEVENDER BHATNAGAR AND SHRI RAHUL BHATNAGAR DU RING THE ASSESSMENT YEAR 1996-97. RS. 1 00 000/- FROM SMT. HIRMANI BHATNAGAR DURING ASSESSMENT YEAR 1995-96 AND RS. 1 50 000/- FROM SHRI DEVENDER BHATNAGAR DURING ASSE SSMENT YEAR 1994-95. DURING THE SURVEY PROCEEDINGS UNDER SECTION 133A IT WAS ADMIT TED THAT THIS GIFT WAS NOT GENUINE AND ACCORDINGLY THE SAME WAS ADMITTED. HOWEVER WHILE FILING THE RETURN OF INCOME THE SAME WAS NOT SHOWN. THEREFORE THE AO MADE ADDITION OF RS. 4 50 000/- FOR ASSESSMENT YEAR 2001-02. 4. ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) WHO DELETED THE ADDITION. HOWEVER HE MADE OBSERVATIONS THAT IF ANY ADDITION CAN BE MA DE THAT CAN BE MADE IN THE YEAR IN WHICH THE GIFT WAS RECEIVED. THEREFORE IT WAS MENT IONED IN THE ORDER OF LD. CIT (A) THAT AO IS FREE TO INITIATE PROCEEDINGS UNDER SECTION 14 7/148. 5. DEPARTMENT FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL HAS ALSO CONFIRMED THE FINDINGS OF LD. CIT (A) 6. ON THE BASIS OF OBSERVATIONS OF LD. CIT (A) IN T HE APPEAL NO. 86/05-06 FOR ASSESSMENT YEAR 2001-02 THE AO ISSUED NOTICE UNDER SECTION 148 ON 11.3.2005 FOR ASSESSMENT YEAR 1997-98 AS STATED ABOVE. THEREAFTE R ASSESSMENT WAS COMPLETED AND THE ADDITION OF RS. 2 00 000/- WAS MADE BY NOT ACCEPTIN G THE GENUINENESS OF THE GIFT RECEIVED BY THE ASSESSEE. THE LD. CIT (A) ALSO CONFIRMED TH E ACTION OF THE AO. THE LD. CIT (A) ALSO REJECTED THE LEGAL GROUND RAISED BEFORE HIM RE GARDING ISSUANCE OF NOTICE UNDER SECTION 148. 7. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 8. DETAILED SUBMISSIONS WERE ADVANCED BY LD. A/R. 9. ON THE OTHER HAND THE LD. D/R HAS PLACED RELIAN CE ON THE ORDER OF LD. CIT (A). 3 10. AFTER CONSIDERING THE ORDER OF AO LD. CIT (A) AND THE SUBMISSIONS OF THE ASSESSEE I FIND THAT ASSESSEE DESERVES TO SUCCEED ON LEGAL ISSUE. IT IS SEEN THAT ASSESSEE RECEIVED GIFT OF RS. 1 00 000/- FROM SHRI DEVENDER BHATNAGAR VIDE DEMAND DRAFT NO. NDH 120020 DATED 20.4.1995. ANOTHER GIFT CHEQUE W AS RECEIVED ON 2.5.1995 FROM SHRI RAHUL BHATNAGAR COPIES OF DD ARE PLACED AT PAGES 3 3 AND 39 OF THE PAPER BOOK RESPECTIVELY. SINCE THEY ARE NRI DD WAS SENT THR OUGH PROPER BANKING CHANNEL. GIFT DEEDS WERE PARED ON 27 TH JULY 1996 BETWEEN ASSESSEE AND SHRI DEVENDER BHAT NAGAR AND SHRI RAHUL BHATNAGAR. COPIES OF THESE GIFT DEEDS AR E PLACED AT PAGES 34 & 40 RESPECTIVELY. THESE GIFT DEEDS ARE DATED 27 TH JULY 1996 PERTAINS TO ASSESSMENT YEAR 1997- 98. ON THE BASIS OF THESE GIFT DEEDS THE AO ISSUE D NOTICE UNDER SECTION 148 ON THE ASSESSEE. THE AMOUNTS OF GIFTS WERE RECEIVED ON 20. 4.1994 AND 2.5.1995 WHICH PERTAINS TO ASSESSMENT YEAR 1996-97. THEREFORE IF ANY ADDIT ION ON ACCOUNT OF GIFT RECEIVED CAN BE MADE THAT CAN BE MADE FOR ASSESSMENT YEAR 1996-97 AND NOT IN THE YEAR 1997-98. THEREFORE ISSUANCE OF NOTICE UNDER SECTION 148 FOR ASSESSMENT YEAR 1997-98 WAS FACTUALLY INCORRECT. THEREFORE THE ASSESSMENT CANNOT BE SUS TAINED BECAUSE THE ASSESSEE HAD RECEIVED GIFTS DURING THE ASSESSMENT YEAR 1996-97 A ND NOT IN THE YEAR UNDER CONSIDERATION. THIS FACTUAL ASPECT HAS BEEN MENTIO NED IN THE ORIGINAL ORDER OF LD. CIT (A) AS WELL AS CLEAR FROM THE GIFT DEEDS PLACED IN THE RECORD. IN THESE GIFT DEEDS IT IS CLEARLY MENTIONED THAT THEY HAVE GIFTED A SUM OF RS. 1 00 0 00/- EACH IN THE ASSESSMENT YEAR 1996-97. THEREFORE ANY ADVERSE INFERENCE CAN BE D RAWN FOR ASSESSMENT YEAR 1996-697 AND NOT FOR A.Y. 1997-98. IN VIEW OF THESE FACTS A ND CIRCUMSTANCES I CANCEL THE ASSESSMENT COMPLETED BY THE AO. 11. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D. 4 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18 .11.2011. SD/- ( R.K . GUPTA ) JUDICIAL MEMBER JAIPUR D/- COPY FORWARDED TO :- SMT. BANARSI DEVI ALWAR. THE ITO WARD 2(2) ALWAR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 428/JP/2011) BY ORDER AR ITAT JAIPUR.