Sh. Shiv Charan Lal Gangil, Gwalior v. CIT, Gwalior

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER AND SHRI P.K. BANSAL ACCOUNTANT MEMBER ITA NO.438/AGR/2008 ASST. YEAR: 2000-01 SHRI SHIV CHARAN LAL GANGIL VS. C.I.T. GWALIO R. C/O. SHRI R.C.L. GUPTA ADVOCATE DAL BAZAR LASHKAR GWALIOR. (PAN : ADAPG 9885 C) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SMT. ARCHANA RANJAN CIT-D.R. ORDER PER P.K. BANSAL A.M.: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT DATED 28.03.2008 PASSED UNDER SECTION 263 OF THE INCOME-TAX ACT 196 1 (THE ACT HEREINAFTER) CANCELLING THE ORDER PASSED BY THE A.O. UNDER SECTION 143(3) READ WITH SECTION 147 IN WHICH THE A.O. HAS ACCEPTED THE GIFT RECEIVED BY THE ASSESSEE AMOUNTIN G TO RS.90 000/- FROM HIS FATHER CHANDAN LAL THROUGH EXECUTION OF DEED OF GIFT BY CHEQUE NO. 008573 DATED 30.03.2000 OF CENTRAL BANK OF INDIA GOHAD. SINCE THE APPEAL FILED WAS LATE B Y 13 DAYS WE THEREFORE AFTER APPRECIATING THE FACTS OF THE CASE CONDONE THE DELAY. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THO UGH THE WRITTEN SUBMISSIONS DT. 12.4.2010 ARE PLACED ON RECORD. WE THEREFORE DEC IDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD. CIT D.R. 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS SHOWN GIFT RECEIVED AMOUNTING TO RS.90 000/- IN THE CAPITAL ACCOUNT FILED ALONGWITH THE RETURN. SUBSEQUENTLY THE PROCEEDINGS UNDER SECTION 147 WERE INITIATED AND THE ASSESSEE H AS SUBMITTED ALL THE NECESSARY DOCUMENTS TO PROVE THE GENUINENESS OF THE GIFT. THE A.O. AFTER EXAMINING THE DOCUMENTS FURNISHED BY THE ASSESSEE ACCEPTED THE GIFT AND DID NOT MAKE ANY AD DITION. SUBSEQUENTLY THE CIT ISSUED NOTICE UNDER SECTION 263 ON 25.03.2008 AND ULTIMATELY PASS ED AN ORDER UNDER SECTION 263 OF THE ACT HOLDING THAT THE A.O. HAS NOT EXAMINED CREDITWORTHI NESS OF THE DONOR AND THE GENUINENESS OF THE TRANSACTION AND ACCORDINGLY CANCELLED THE ASSES SMENT ORDER HOLDING IT TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 4. WE HAVE HEARD THE LD. CIT - D.R. AND PERUSED THE MATERIAL ON RECORD ALONG WITH THE WRITTEN SUBMISSIONS AND THE ORDER OF THE CIT PASSED UNDER SECTION 263. WE HAVE ALSO GONE THROUGH THE ORDER OF THIS TRIBUNAL IN THE CASE OF R ADHEY SHYAM AGARWAL HUF VS. CIT ITA NO.399/AGR/2008 & OTHERS AND NOTED THAT IN THAT CAS E ALSO THE ASSESSEE HAS RECEIVED GIFTS AND THE ASSESSMENT UNDER SECTION 143 READ WITH SECTION 147 WAS CARRIED OUT AND NO ADDITION IN RESPECT OF THE GIFT WAS MADE. SUBSEQUENTLY THE CI T INVOKED SECTION 263 OF THE ACT AND TOOK THE VIEW THAT THE ORDER PASSED BY THE A.O. WAS ERRO NEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. WHEN THE MATTER WENT BEFORE THE TRIBUNAL THE TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE AND SET ASIDE THE ORDER OF THE CIT IN ALL THESE CASES. IN THE CASE BEFORE US ALSO THE A.O. HAS NOT MADE ANY ADDITION IN RESPECT OF THE GI FT RECEIVED BY THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143 READ WITH SECTION 147 O F THE ACT. MERELY THAT THE A.O. HAS NOT MENTIONED IN THE ASSESSMENT ORDER THE DETAILS OF EV IDENCES PRODUCED BY THE ASSESSEE DOES NOT MEAN THAT THE A.O. HAS NOT EXAMINED THE EVIDENCES S UBMITTED BY THE ASSESSEE. THE ASSESSEE IN 3 OUR OPINION CANNOT DIRECT THE A.O. HOW HE SHOULD W RITE THE ORDER. IF THE A.O. HAS TAKEN ONE OF THE VIEWS IF THAT VIEW IS NOT UNSUSTAINABLE IN LAW IT CANNOT BE SAID THAT THE ORDER PASSED BY THE A.O. IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST O F THE REVENUE. THE ONUS IN OUR OPINION LIES ON THE REVENUE TO PROVE THAT THE ORDER PASSED BY TH E A.O. IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. UNLESS AND UNTIL BOTH THE CONDITIONS THAT THE ORDER PASSED IS ERRONEOUS AND IS ALSO PREJUDICIAL TO THE INTEREST ARE NOT SAT ISFIED THE CIT CANNOT EXERCISE HIS JURISDICTION UNDER SECTION 263. THE HONBLE ALLAHABAD HIGH COUR T HAS GONE EVEN TO THE EXTENT OF HOLDING THAT EVEN IF THE ORDER OF A.O. IS CRYPTIC THIS C ANNOT BE REVISED. IT WAS SO HELD IN THE CASE OF CIT VS. MAHENDRA KUMAR BANSAL 297 ITR 99 (ALLD) TH AT MERELY BECAUSE THE ITO HAD NOT WRITTEN A LENGTHY ORDER IT WOULD NOT ESTABLISH WITH OUT BRINGING ON RECORD SPECIFIC INSTANCES THAT THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3)/14 8 OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 6. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MUMBA I HIGH COURT IN THE CASE OF CIT VS. GABRIEL INDIA LIMITED 203 ITR 108 (MUMBAI) IN WHIC H IT WAS HELD :- 'HELD THAT THE INCOME-TAX OFFICER IN THIS CASE HAD MADE ENQUIRIES IN REGARD TO THE NATURE OF THE EXPENDITURE INCURRED BY THE ASSESSEE. THE ASSESSEE HAD GIVEN A DETAILED EXPLANATION IN THAT REGARD BY A LETTER IN WRITING. ALL THESE WERE PART OF THE RECORD OF THE CASE. EVIDENTLY THE CLAIM WAS ALLOWED BY THE INCOM E-TAX OFFICER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE. THIS DECISION OF THE INCOME-TAX OFFICER COULD NOT BE HELD TO BE 'ERRONEOUS' SIMPLY BECAUSE IN HIS ORD ER HE DID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. MOREOVER IN THE INSTANT CASE THE COMMISSIONER HIMSELF EVEN AFTER INITIATING PROCEEDINGS FOR REVISION AND HEARING THE ASSESSEE COULD NOT SAY THAT THE ALLOWANCE OF THE CLAIM OF THE ASSESSEE WAS ERRONEOUS AND THAT THE EXPENDITURE WAS NOT REVENUE EXPENDITURE BUT AN EXPENDITURE OF C APITAL NATURE. HE SIMPLY ASKED THE INCOME-TAX OFFICER TO RE-EXAMINE THE MATTER. THAT W AS NOT PERMISSIBLE. THE TRIBUNAL WAS JUSTIFIED IN SETTING ASIDE THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX UNDER SECTION 263.' 7. IN VIEW OF THE AFORESAID DISCUSSIONS WE QUASH T HE ORDER PASSED UNDER SECTION 263 OF THE ACT. 4 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER PRONOUNCED IN THE OPEN COURT ON 15.04.2010) . SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 15 TH APRIL 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY