The Dy.Commissioner of Income Tax, Central Circle-2,, Baroda v. Shri Arvind N. Nopany,, Baroda

ITSSA 128/AHD/2016 | 2008-2009
Pronouncement Date: 24-01-2019 | Result: Dismissed
Expert Summary: In this case the assessee had received gift from his brother in law out of natural love and affection. Assessee’s brother in law was the 40th richest man according to the Forbes and had high net worth. Assessing Officer doubted the donor’s relation with assessee and required the assessee to prove the identity, genuineness and creditworthiness of the donor and also required the assessee to produce the donor. Assessee submitted donor’s PAN, account statement, bank statement inorder to prove the same however it was not possible to produce the donor in short notice period as the donor resided in different city. Tribunal did not find any inference with the judgement of CIT(a) wherein it was held that as assessee has proved the identity, genuiness and credit worthiness of donor and as relation with brother in law fits in the definition of relative given in the proviso to Section 56 therefore the gift received qualifies for the exemption under section 56. Hence, Revenue’s appeal is dismissed.

Appeal Details

RSA Number 12820516 RSA 2016
Assessee PAN AAAPN8927F
Bench Ahmedabad
Appeal Number ITSSA 128/AHD/2016
Duration Of Justice 2 year(s) 8 month(s) 14 day(s)
Appellant The Dy.Commissioner of Income Tax, Central Circle-2,, Baroda
Respondent Shri Arvind N. Nopany,, Baroda
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 24-01-2019
Appeal Filed By Department
Tags 128
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 24-01-2019
Assessment Year 2008-2009
Appeal Filed On 10-05-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD BEFORE SHRI PRAMOD KUMAR VICE PRESIDENT & MS. MADHUMITA ROY JUDICIAL MEMBER INCOME TAX (SEARCH & SEIZER) APPEAL NOS.128 & 129/A HD/2016 (ASSESSMENT YEARS : 2008-09 & 2009-10) DCIT CENTRAL CIRCLE -2 BARODA. VS. SHRI ARVIND N. NOPANY 11-A NILAMBER -1 SAIYED VASNA ROAD BARODA. [PAN NO. AAAPN 8927 F] ( APPELLANTS ) .. ( RESPONDENT ) APPELLANT BY : SHRI R. C. DANDAY CIT-D.R. RESPONDENT BY : SHRI M. K. PATEL A.R. DATE OF HEARING : 02/01/2019 DATE OF PRONOUNCEMENT : 24/01/2019 O R D E R PER MS. MADHUMITA ROY - JM: THESE TWO INSTANT APPEALS FILED BY THE REVENUE AR E AGAINST THE ORDER DATED 28.01.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 12 AHMEDABAD [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2008 -09 & 2009-10 ARISING OUT OF THE ORDER U/S.153A R.W.S. 143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 27.02.2015 PASSED BY THE DCIT CENTRAL CIRCLE -2 BARODA WITH THE FOLLOWING GROUNDS IN IT(SS)A NO.128/AHD/2016: [1] ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE AO ON AC COUNT OF GIFT OF RS.5 00 00 000/- BY IGNORING THE FACTS THAT RELATI ON OF DONOR (SISTER'S HUSBAND) WITH THE ASSESSEE IS NOT FALLING U/S 56(II ) AND (VII) OF THE ACT AND GIFT WAS GIVEN WITHOUT ANY REASON AND OCCASION. [2] ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE AO ON AC COUNT OF GIFT OF - 2 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 RS.5 00 00 000/- BY IGNORING THE FACTS THAT IN SP ITE OF AMPLE OPPORTUNITY THE ASSESSEE HAS NEVER PRODUCED DONOR BEFORE AO FOR FURTHER VERIFICATION. [3] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. [4] IT IS THEREFORE PRAYED THAT THE ORDER OF THE CIT (A) MAY BE SET ASIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO THE AB OVE EXTENT. THE ISSUES INVOLVED IN THESE CASES ARE IDENTICAL AN D THUS THE SAME ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON O RDER. ITA NO.128/AHD/2016 IS TAKEN AS THE LEAD CASE. 2. A SEARCH WAS CONDUCTED U/S 132 OF THE ACT ON 29. 09.2011 IN THE NOPANY GROUP CASES AT BARODA INCLUDING THE CASE OF THE ASSESSEE. ACCORDINGLY U/S 153A(A) OF THE ACT A NOTICE WAS ISSUED TO THE ASSESSEE ON 07.02.2012 DIR ECTING HIM TO FURNISH THE RETURN OF INCOME WITHIN 45 DAYS THEREOF. IN COMPLIANCE TO THE SAME THE ASSESSEE FILED HIS RETURN OF INCOME ON 27.07.2012 DECLARING TOTAL INCOME AT RS.1 0 22 830/- SAME AS DECLARED IN THE ORIGINAL RETURN OF INCOME FILED U/S 139(1) OF THE A CT ON 19.06.2008. A NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 30.07.2012 FOLLOWED BY A FURT HER NOTICE U/S 142(1) OF THE ACT ALONG WITH A DETAILED QUESTIONNAIRE ON 14.01.2013. IT IS RELEVANT TO MENTION THAT THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION SHOWN INCOME FR OM COMPANIES IN WHICH HE WAS DIRECTOR HOUSE PROPERTY BUSINESS OR PROFESSION C APITAL GAIN AND INCOME FROM OTHER SOURCES. THE DOCUMENTS WHICH WERE RECEIVED FROM THE RESIDENTS AS WELL AS THE FACTORY PREMISES OF COMPANIES IN WHICH ASSESSEE WAS A DIREC TOR DURING SEARCH PROCEEDING REVEALED FOLLOWING AMOUNTS WERE RECEIVED BY THE ASSESSEE AS GIFT: SR. NO. DATED AMOUNT CHEQUE NO. 1. 23.11.2006 6 00 00 000 848692 2. 16.10.2007 5 00 00 000 973868 3. 06.05.2008 5 00 00 000 107949 THE SAID GIFT AMOUNTS WERE RECEIVED FROM ONE SHRI N AROTAM SEKHSARIYA. A SHOW-CAUSE WAS ISSUED DIRECTING THE ASSESSEE TO PROVE THE IDEN TITY CREDITWORTHINESS AND GENUINENESS OF THE ABOVE TRANSACTION MENTIONED AS GIFT. IN REPLY THE ASSESSEE CATEGORICALLY MENTIONED THAT - 3 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 THE SAID SHRI NAROTAM SEKHSARIYA WAS THE BROTHER-IN -LAW OF THE ASSESSEE BEING THE FOUNDER OF AMBUJA CEMENTS LTD. AND REMAINED ITS MANAGING DI RECTOR TILL RECENTLY. SHRI NAROTAM SEKHSARIYA WAS THE 40 TH RICHEST INDIAN ACCORDING TO FORBES.COM. DETAILS OF HIS NET WORTH AND THE CREDENTIAL WERE ALSO MENTIONED IN THE SAID REPLY DATED 23.01.2015 AS FILED BEFORE THE ASSESSING OFFICER. HOWEVER THE ASSESSEE WAS FU RTHER DIRECTED BY THE LEARNED AO TO PRODUCE THE DONOR BEFORE HIM TO PROVE THE GENUINENE SS OF THE TRANSACTION OF 16 CRORES ALONG WITH EVIDENCE OF HIS IDENTITY CREDITWORTHINE SS AND GENUINENESS OF TRANSACTION. THE ASSESSEE THEREAFTER PRODUCE THE FOLLOWING DOCUMENTS OF THE SAID SHRI NAROTAM SEKHSARIYA TO PROVE HIS IDENTITY AND CREDITWORTHINESS: 1) COPY OF HIS PAN CARD (ANNEXURE B) 2) CAPITAL ACCOUNT STATEMENTS FOR THE ASSESSMENT YEAR 2007-08 2008-09 AND 2009- 10 (ON A PERUSAL OF THESE STATEMENTS YOUR GOODSELF WILL OBSERVE THAT THE DONOR HAD LARGE CAPITAL BASE AND HAVE DULY REFLECTED THES E GIFTS GIVEN TO ME) (ANNEXURE -C) 3) COPY OF HIS BANK STATEMENTS REFLECTING THE GIFTS (ANNEXURE - B) 4) ASSESSMENT ORDERS FOR THE ASSESSMENT YEARS 2008-09 AND 2009-10 (ANNEXURE - E) IT WAS THE CASE OF THE ASSESSEE THAT OUT OF HIS NAT URAL LOVE AND AFFECTION THE DONOR HAS GIFTED AMOUNT TO THE ASSESSEE FROM HIS INCOME/C APITAL. THE DONOR IS A HIGH NET WORTH INDIVIDUAL. ACCORDING TO THE ASSESSEE THE GIFTS WE RE NOT LIABLE TO INCOME TAX IN HIS HANDS UNDER INCOME TAX ACT AS THEY WERE CAPITAL RECEIPTS . SECTION 56(2)(VI) ALSO EXCLUDE GIFTS FROM INDIVIDUALS FROM CERTAIN SPECIFIED RELATIVES I NCLUDING BROTHER-IN-LAW FROM THE PURVIEW OF TAXATION. FURTHER THAT SINCE THE DONOR RESIDES IN MUMBAI IT WAS NOT POSSIBLE FOR HIM TO COME DOWN TO BARODA BEFORE THE ASSESSING OFFICER WITHIN SUCH SHORT NOTICE. IT WAS CATEGORICALLY MENTIONED IN THE SAID REPLY THAT THE DONOR WAS A REGULAR TAX PAYER AND IS REGULARLY ASSESSED TO TAX FOR THESE YEARS. THE COPI ES OF HIS ASSESSMENT ORDER WERE ALSO ATTACHED ALONG WITH THE SAID REPLY BEFORE THE LEARN ED AO. IT IS RELEVANT TO MENTION THAT SUCH DOCUMENT HAS ALSO BEFORE THE FIRST APPELLATE A UTHORITY AND BEFORE US AS WELL BEING PART OF RECORD ANNEXED IN THE PAPER BOOK. - 4 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 HOWEVER SUCH PLEA OF THE ASSESSEE WAS NOT FOUND AC CEPTABLE BY THE LEARNED ASSESSING OFFICER. UPON PERUSAL OF THE EVIDENCE SO PLACED BEFORE HIM BY THE ASSESSEE SO AS TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE D ONOR HE THEN ADDED RS.5 00 00 000/- IN THE HANDS OF THE ASSESSEE WHICH WAS DELETED BY THE LEARNED CIT(A). HENCE THE INSTANT APPEAL. 3. AT THE TIME OF THE HEARING OF THE INSTANT APPEAL THE LEARNED DR QUESTION THE VERACITY OF THE ORDER IMPUGNED PASSED BY THE LEARNE D CIT(A) IN DELETING THE ADDITION MADE BY THE LEARNED AO ON THIS PARTICULAR PREMISE T HAT THE AMOUNT IN QUESTION WAS RECEIVED BY THE ASSESSEE FROM THE HUSBAND OF HIS SI STER WHO IS NOT A BLOOD RELATIVE AND THUS NOT SAVED BY PROVISO OF SECTION 56 OF THE ACT NEIT HER EXEMPTED FROM TAX. THE GENUINENESS OF THE GIFT HAS ALSO BEEN DOUBTED BY HIM SINCE THE ASSESSEE WAS ADOPTED SON OF SHRI NARAYAN PRASAD NOPANI AND CHANDRADEVI NOPANI. HE TH US RELIED UPON THE ORDER PASSED BY THE LEARNED AO. 4. THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE S UBMITTED BEFORE US THAT THOUGH THE ASSESSEE IS AN ADOPTED CHILD UNDER THE HINDU LAW M AINLY HINDU ADOPTION AND MAINTENANCE ACT 1956 THE ASSESSEE IS HAVING SAME S TATUS AS OF THE OWN CHILD OF A SPOUSE IN THIS CASE MR. AND MRS. NOPANI. APART FROM THAT THE GENUINENESS AND CREDITWORTHINESS OF THE DONOR SINCE CATEGORICALLY EXPLAINED BY THE A SSESSEE BEFORE THE AUTHORITIES BELOW SO AS TO PROVE THE GENUINENESS OF THE TRANSACTION THE QUESTION OF MAKING ADDITION DOES ARISE. HE THEREFORE RELY UPON THE ORDER PASSED BY THE LE ARNED CIT(A). 5. WE HAVE HEARD THE RESPECTIVE PARTIES PERUSED TH E RELEVANT MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LEARNED AO CAME TO A FINDI NG THAT THERE WAS NO SPECIFIC REASON TO GIVE THE SAID AMOUNT OF RS.16 CRORES IN TOTAL TO TH E ASSESSEE BY THE SAID SHRI NAROTAM SEKHSARIYA. WHILE MAKING AN ADDITION TO THE TUNE OF RS.5 00 00 000/- FOR THE YEAR UNDER CONSIDERATION THE LEARNED AO INTER ALIA OBSERVED AS FOLLOWS: - 5 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 .D. THE CAPITAL ACCOUNT OF MR NAROTTAM SEKHSARIYA IS VERIFIED. AS PER THE SUBMISSION MADE BY ASSESSEE MR NAROTAM SEKHSARIYA HAS DONATED TO VARIOUS INDIVIDUALS AND SO GIFT GIVEN TO ASSESSEE I S JUST ONE OF THEM. AS PER THE CAPITAL ACCOUNT OF MR SEKHSARIYA IT IS SEEN TH AT MOST OF THE DONATIONS GIVEN BY HIM ARE TO VARIOUS TRUSTS AND THUS HE MUST BE GETTING BENEFIT U/S VI A DEDUCTIONS. OTHER THAN ASSESSEE THE HIGHEST RECI PIENT OF DONATIONS FROM MR SEKHSARIYA IS PULKIT SEKHSARIYA WHO IS SON OF MR SEKHSARIYA AS SUBMITTED DURING HEARING AND VAIDEHI TRUST WHICH I S THE TRUST ESTABLISHED IN THE NAME OF THE DAUGHTER OF MR NAROTAM SEKHSARIY A (RS 5 CRORE IN F.Y.2007-08) .AS CAN BE SEEN* OTHER THAN TRUSTS AN D HIS SON NO OTHER RELATIVE OF MR SEKHSARIYA HAS RECEIVED A GIFT OF SU BSTANTIAL AMOUNT SUCH AS MR ARVIND NOPANY DURING THE YEARS UNDER CONSIDERATI ON. SO THE QUESTION COMES WHY ONLY MR ARVIND NOPANY HAS RECEIVED SUCH S UBSTANTIAL AMOUNT OF GIFT OF RS 16 CRORE FROM MR NAROTAM SEKHSARIYA WHEN THERE WAS NO SPECIFIC REASON TO GIVE THE GIFT. THIS FACTOR QUESTIONS THE GENUINENESS OF THE TRANSACTION TERMED AS GIFT E. IT IS IMPORTANT TO HIGHLIGHT INCONSISTENCY OF TH IS TRANSACTION THAT THE MONEY AS DISCUSSED HEREIN ABOVE HAS BEEN PAID BY SHRI SEKHSA RIYA WHO IS HUSBAND OF SMT NALINI WHO IS ALLEGEDLY SISTER OF ASSESSEE. IT IS UNHEARD OF IN THIS PART OF COUNTRY THAT A BROTHER WHO IS FINANCIALLY VERY WELL SHALL ACCEPT A GIFT FROM HIS SISTER ALTHOUGH CONVERSE OF SAME IS VERY COMMON. TH US GENUINENESS OF THIS TRANSACTION AS GIFT IS NOT PROVED BEYOND DOUBT AND LOT REMAINS TO BE PROVED WHICH ASSESSEE HAS PREFERRED NOT TO SUBSTANTIATE. THE ABOVE AFFIDAVIT IS ASSESSEE'S OWN ASSERTION THA T HIS FATHER LT. SHRI NARAYAN PRASAD NOPANY WAS NOT HAVING ANY LEGAL HEIR OTHER THAN THE ASSESSEE AND SMT. CHANDADEVI NOPANY. HOWEVER IT IS COMMON KNOWLEDGE THAT AS PER HINDU SUCCESSION ACT IF AT ALL THERE WA S A DAUGHTER OF LT. SHRI NARAYAN PRASAD NOPANY SHE SHOULD HAVE BEEN LEGAL H EIR. THIS IS EVIDENCE THAT THE CLAIM OF ASSESSEE THAT SMT NALINI SHEKSARI YA IS HIS SISTER DOES NOT APPEAR TRUE AND FULL OF SUSPICION. IN SUCH A SCENAR IO ONLY SHRI NAROTAM SHEKSARIYA OR SMT NALINI SHEKSARIYA COULD HAVE PROV ED IT THAT THEY ARE RELATED TO ASSESSEE AT ALL. BUT EVEN AFTER GIVING T WO OPPORTUNITIES SHRI SEKHSARIYA HAS NOT PRESENTED HIMSELF BEFORE THIS OF FICE WHICH RAISES MORE DOUBTS REGARDING GENUINENESS OF THIS TRANSACTION. I. FACT NARRATED IN THE PARA G ABOVE HAS ALSO BEEN SUP PORTED BY THE PAGE NO. 17 18 20 OF ANNEXURE BI-1 OF SEIZED DOCUMENTS. IN THIS DOCUMENT EXACTLY SAME HAS BEEN SUBMITTED BY THE ASSESSEE IN THE OFFI CE OF TEHSILDAR JHUNJHUNU RAJASTHAN. - 6 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 5.6 FROM ALL THE ABOVE PROCEEDINGS DISCUSSION FA CTS AND CIRCUMSTANCES THERE ARE COMPELLING REASONS FOR NOT CONSIDERING THE ALLE GED GIFT TRANSACTION AS A GENUINE TRANSACTION BETWEEN RELATIVES AS PRESCRIBED IN SECTION 56 OF INCOME TAX ACT 1961. AS THE EXEMPTION FROM CONSIDERING TH E TRANSACTION AS NON- TAXABLE IS NOT PROVED THE WHOLE OF THE AMOUNT OF RS .5 00 00 000/- IS TAXABLE INCOME OF ASSESSEE AS INCOME FROM OTHER SOURCES. AC CORDINGLY ADDITION OF RS.5 00 00 000/- IS MADE UNDER THE HEAD INCOME FROM OTHER SOURCES U/S 56 OF THE ACT AND ADDED BACK TO THE TOTAL INCOME OF TH E ASSESSEE. PENALTY PROCEEDINGS U/S 271(L)(C) OF THE ACT ARE BEING INIT IATED SEPARATELY FOR CONCEALMENT OF INCOME. 6. IN APPEAL THE LEARNED CIT(A) DELETED SUCH ADDIT ION MADE BY THE LEARNED AO WITH THE FOLLOWING OBSERVATION: 12. IN VIEW OF THE ABOVE I FURTHER RECOGNIZE THE FACT THAT NALINI AND APPELLANT BOTH BEING THE CHILDREN OF NARAYAN PRASAD NOPANY FR OM 7/3/78 THEY ARE SIBLINGS IN LAW AND ARE THEREFORE BROTHER AND SISTER SIMPLI CITOR AND WITHOUT ANY CONDITIONALLY QUALIFICATION OR RESERVATION IN THIS BEHALF FROM 7/3/78 THE SEIZED AFFIDAVIT THE PIVOT OF AO'S ADVERSE CONCLUSION IN MY CONSIDERED OPINION IS ONLY A GOOD STARTING POINT OF ENQUIRY BY THE AO BUT CERTA INLY NOT CONCLUSIVE EVIDENCE OF THE FACT THAT NALINI AND APPELLANT ARE NOT BROTHER- SISTER. THE AO AS RIGHTLY SUBMITTED BY THE AR ONLY CONVENIENTLY READ THE AFF IDAVIT AND JUMPED :O THE CONCLUSION COMPLETELY OVERLOOKING THE CONTEXT OF T HE AVERMENT MADE THEREIN IT HAS BEEN SATISFACTORILY EXPLAINED BY THE APPELLANT AND CONFIRMED BY HIS 'SISTER' NALINI AND MOTHER CHANDADEVI THAT WHY A FACTUALLY WRONG AVERMENT THOUGH IN GOOD FAITH WAS MADE IN AFFIDAVIT FILED BEFORE TEHS ILDAR BY THE APPELLANT. THE APPELLANT ALSO SUBMITTED THE COPY OF LAND-MUTATION ENTRY IN CONSEQUENCE OF THE 'WRONG AFFIDAVIT' TO HIGHLIGHT THAT EVEN THE AUTHOR ITY BEFORE WHOM THE AFFIDAVIT WAS FILED S HAS NOT CONSIDERED THE CONTENTS OF THE SAME SACROS ANCT. THE MUTATION ULTIMATELY HAPPENED IN THREE NAMES: CHANDRADEVI NOP ANY ARVIND NOPANY AND NALINI SEKHSARIA. AS PER THE AR THIS ALSO WOULD AD DITIONALLY AND STRONGLY IMPLY THE FACTUAL BY THE TEHSILDAR THAT NALOI BEING A DA UGHTER AND HEIR TO NARAYAN PRASAD NOPANY. IS RIGHTFULLY ENTITLED TO SHARE IN T HE LAND. THUS THE (WRONG) AVERMENT IN AFFIDAVIT HAS NOT PERSUADED EVEN THE TE HSILDAR TO CONCLUDE THAT NALINI IS NOT DAUGHTER OF NARAYAN PRASAD NOPANY OR SISTER OF THE APPELLANT. THEREFORE 1 AGREE WITH THE APPELLANT THAT THE AVERMENT OF THE A PPELLANT IN THE SEIZED AFFIDAVIT HAS BEEN SUCCESSFULLY REPELLED AND EXPLAINED BY THE APPELLANT. SINCE THE STATUS OF SPOUSES EEN NALINI AND NAROTTAM SEKHSARIA IS NOT DO UBTED OR QUESTIONED BY THE AO IT NEEDS AS A FACT TO BE RECOGNIZED THAT THE DONOR SHRI NAR OTTAM SEKHSARIA IS THE BROTHER-IN-LAW OF THE APPELLANT. - 7 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 13. THE AO HAS DOUBTED THE GENUINENESS OF THE GIFT . IN MY CONSIDERED OPINION THE APPELLANT HAS ESTABLISHED THE GENUINENESS OF TH E GIFTS NOT ONCE BUT TWICE: DURING ORIGINAL ASSESSMENT U/S 143(3) FOR AX 08-09 AND AGAIN DURING THE PROCEEDINGS U/S 153A. THE EVIDENCES AVAILABLE IN TH E PAPER-BOOK AND LISTED BY THE APPELLANT AND EXTRACTED BY ME IN PARA 5 ABOVE INCLU DING COPIES OF ASSESSMENT ORDERS BANK ACCOUNTS CAPITAL ACCOUNTS AND CONFIRM ATION OF THE DONOR ESTABLISH DOUBTLESSLY AND SATISFACTORILY THE IDENTITY AND CAP ACITY OF THE DONOR AND THE GENUINENESS OF THE TRANSACTION. THE APPELLANT CLEAR LY AND FULLY DISCHARGED THE ONUS. THOUGH THEREAFTER THE AO ASKS THE APPELLANT T O PRODUCE THE DONOR THE APPELLANT ONLY ENSURES ATTENDANCE BY DONOR'S AR WIT H FURTHER CONFIRMATION ASSESSMENT ORDERS AND BANK-STATEMENT OF THE DONOR. THE AO HAS THEREAFTER NOT MADE ANY ENQUIRY NOR BROUGHT ANY ADVERSE MATERIAL O N RECORD AND NOT PROVIDED ANY FURTHER OPPORTUNITY TO EXPLAIN ANY FURTHER ASPE CT TO THE APPELLANT AND STILL HOLDS AGAINST THE APPELLANT WITHOUT DISCHARGING HER ONUS AND ALSO WITHOUT CLARIFYING HOW SUBMISSION OF THE APPELLANT IS NOT A CCEPTABLE. MOREOVER VIDE APPELLANT'S SUBMISSIONS REPRODUCED IN PARA 7 ABOVE EACH OBJECTION OF THE AO IN THE ASSESSMENT ORDER AND FURTHER IN REMAND REPORT I NCLUDING THE ABSENCE OF GIFT DEED HAS BEEN SATISFACTORILY MET BY THE APPELLANT. THE OBSERVATIONS OF THE AO ABOUT WHAT GIFTS THE DONOR HAS GENERALLY MADE OR WH AT HAPPENS IN NORMAL HINDU FAMILY ETC ARE WHOLLY IRRELEVANT TO DECIDE THE ISSU E. SIMILARLY THE OBSERVATION OF TRIE AO WITH REGARD TO 'COMPLEX FINANCIAL TRANSACTI ONS' IN DONOR'S BANK ACCOUNT IS EQUALLY OUT OF PLACE AND IRRELEVANT IN APPELLANT'S CASE. IT IS THUS CLEAR THAT THE APPELLANT SUCCESSFULLY DISCHARGED THE ONUS AND THE AO HAD NO AUTHORITY WITHOUT SHIFTING THE BURDEN BACK TO THE APPELLANT BY GATHER ING COGENT AND CREDIBLE EVIDENCES CASTING SERIOUS DOUBTS ON THE VERACITY OF EVIDENCES ALREADY FILED BY THE APPELLANT TO ASK THE APPELLANT TO FURTHER PRODUCE ORAL EVIDENCE OF THE DONOR AND STILL THEREAFTER HOWEVER THE APPELLANT DID COMPLY SUBSTANTIALLY AND MEANINGFULLY. THUS THERE IS NO GROUND FOR HOLDING THE GIFTS NON- GENUINE. THUS AND THEREFORE IT IS FURTHER HELD THAT THE AMOUNTS OF RS. 5 CRORE EAC H RECEIVED BY THE APPELLANT FROM SHRI NAROTTAM SEKHSARIA REPRESENT THE EXPLAINE D AND GENUINE GIFTS FOR RESPECTIVE YEARS. 14. THE LAST ISSUE TO BE DECIDED IS WHETHER NAROTT AM SEKHSARIA WOULD QUALIFY AS 'RELATIVE' WITHIN THE MEANING OF S. 56(2)(VI) PROVISO CLAUSE A SO AS TO MAKE GIFT FROM HIM TO THE APPELLANT EXEMPT. IT WOULD BE NECES SARY TO HAVE A LOOK AT THE PROVISIONS: INCOME FROM OTHER SOURCES. 56. (1) INCOME OF EVERY KIND WHICH IS NOT TO BE E XCLUDED FROM THE TOTAL INCOME UNDER THIS ACT SHALL BE CHARGEABLE TO INCOME -TAX UNDER THE HEAD 'INCOME FROM OTHER SOURCES' IF IT IS NOT CHARGEABLE TO INCOME-TAX UND ER ANY OF THE HEADS SPECIFIED IN SECTION 14 ITEMS A TO E. - 8 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 (2) IN PARTICULAR AND WITHOUT PREJUDICE TO THE GE NERALITY OF THE PROVISIONS OF SUB-SECTION (I) THE FOLLOWING INCOME S SHALL BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD 'INCOME FROM OTHER SOURCE S' NAMELY : (I). [(V) WHERE ANY SUM OF MONEY EXCEEDING FIFTY THOUSAN D RUPEES IS RECEIVED WITHOUT CONSIDERATION BY AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY FROM ANY PERSON ON OR AFTER THE 1S T DAY OF APRIL 2006 23[BUT BEFORE THE 1ST DAY OF OCTOBER 2 009} THE WHOLE OF SUCH SUM : PROVIDED THAT THIS CLAUSE SHALL NOT APPLY TO ANY SU M OF MONEY RECEIVED (A) FROM ANY RELATIVE; OR (B) .. EXPLANATION. FOR THE PURPOSES OF THIS CLAUSE 'RELATIVE' MEANS- (I) .. (II) BROTHER OR SISTER OF THE INDIVIDUAL; (III) BROTHER OR SISTER OF THE SPOUSE OF THE INDIVIDUAL; .. (VII) SPOUSE OF THE PERSON REFERRED TO IN CLAUS ES (II) TO (VI);] THE LD. AR AFTER TAKING ME THROUGH THE PROVISIONS SUBMITTED THAT THE BROTHER-IN-LAW WOULD FALL IN THE CATEGORY OF 'RELAT IVE' WHEN EXPLANATION (II) AND (VIII) ARE READ AS REQUIRED TOGETHER I HAVE PERUSED THE PROVISIONS- I FIRSTLY FIND AS SUBMITTED BY THE AR THAT THERE IS NO MENTION OF 'BLOOD RELATIVE' IN THE WHOLE SECTION. RECEIPTS EXCEEDING RS 50 000/- WITHOUT CONSIDERATION IS TAXABLE U/S 56 UNLESS SAVED BY PRO VISO. EXPLANATION DEFINES 'RELATIVE' AND AS PER CLAUSE (II) READ WIT H CLAUSE (VII) THE SISTER'S HUSBAND IS ALSO A RELATIVE. THUS 1 AM IN ABSOLUTE AGREEMENT WITH THE LD. AR THAT THE LD. AO'S ATTEMPT TO SOME-HOW READ 'BLOO D RELATIVE' IN PROVISO WHEN PLAINLY AND CLEARLY ONLY 'RELATIVE' IS MENTION ED AND IS DEFINED IN PROVISO TO S. 56 SHOWS THAT THE LD AO HAS MISREAD THE PROVISIONS AND APPLIED THE SAME UNREASONABLY. 1 AM SATISFIED IN V IEW OF MY EARLIER FINDING AFTER QUOTING FROM HINDU ADOPTION AND MAINTENANCE A CT 1956 IN PARA 12 ABOVE THAT THE RECEIPTS FROM SHRI NAROTTAM IKHSARIA ARE CLEARLY COVERED BY CLAUSE (A) OF PROVISO TO S. 56(2) READ WITH EXPLANA TIONS (II) AND (VII). THUS IT IS HELD THAT THE GIFTS OF RS. 5 CRORE IN BOTH TH E YEAS RECEIVED FROM NAROTTAM SEKHSARIA BEING FROM A 'RELATIVE' I.E. B ROTHER-IN-LAW OF THE APPELLANT IS NOT TAXABLE U/S 56. THE GIFTS HAVING BEEN FULLY ESTABLISHED AS GENUINE AND FROM EXPLAINED SOURCES THE RECEIPTS AR E ALSO NOT TAXABLE U/S 68 THUS THE ADDITION OF RS. 5 CRORE EACH MADE BY THE A O FOR BOTH THE ASSESSMENT YEARS UNDER APPEAL IS NOT SUSTAINABLE AN D THEREFORE THE SAME - 9 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 IS DELETED. THE APPELLANT GETS EQUIVALENT RELIEF. T HE RELATED GROUNDS SUCCEED. 7. WE FIND THAT THE DETAILS OF THE DONOR STARTING F ROM PAN NUMBER CAPITAL GAIN STATEMENT BANK STATEMENT AND OTHERS IS ANNEXED TO THE PAPER BOOK WHICH WAS DULY PLACED BEFORE THE AUTHORITIES BELOW. IT APPEARS THAT WHEN SHRI NAROTTAM SEKHKARIA WAS NOT BROUGHT TO THE LEARNED AO BY THE ASSESSEE NO FURTHE R ENQUIRY WAS CONDUCTED BY HIM NO RECORD AGAINST THE ASSESSEE WAS ALSO BROUGHT. APART FROM THAT THE CREDITWORTHINESS AND/OR GENUINENESS OF THE TRANSACTION THOUGH DOUBTED BY TH E LEARNED AO THE SAME HAS NOT BEEN PROVED BY ANY COGENT DOCUMENT IN FAVOUR OF THE REVE NUE. FURTHER THAT WE FIND THAT THE LEARNED AO ACTED BEYOND HIS JURISDICTION BY RAISING DOUBTS REGARDING THE RELATIONSHIP OF THE ASSESSEE AND THE DONOR IGNORING THE STATUTORY P ROVISION IN THIS REGARD AS ALREADY BEEN HIGHLIGHTED BY THE ASSESSEE BEFORE HIM IN HIS WRITT EN REPLY DATED 04.02.2015. WITHOUT REBUTTING THE SUBMISSION MADE BY THE ASSESSEE THE O RDER OF ADDITION WAS MADE BY THE LEARNED AO. FURTHER THAT WHETHER THE GIFT SO RECEI VED BY THE ASSESSEE FROM HIS BROTHER-IN- LAW IS EXEMPTED FROM TAX UNDER SECTION 56 OF THE AC T HAS BEEN CONSIDERED ON A WRONG NOTION. INSTEAD OF RELATIVE AS PROVIDED BY THE STAT UTE BLOOD RELATIVE HAS BEEN CONSIDERED BY THE LEARNED AO AND AS A RESULT WHEREOF ADDITION WAS MADE WHICH IS ABSOLUTELY ERRONEOUS AS RIGHTLY POINTED OUT BY THE LEARNED CIT (A) AS IT REFLECTS FROM THE ORDER IMPUGNED. THUS IN THE ABSENCE OF ANY INFIRMITY IN THE ORDER PASSED BY THE LEARNED CIT(A) WE DECLINE TO INTERFERE WITH THE SAME. HENCE THE R EVENUES APPEAL IS DISMISSED. 8. IN THE RESULT BOTH THE REVENUES APPEALS IN IT( SS)A NO.128 & 129/AHD/2016 ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 24 / 01 /201 9 SD/- SD/- ( PRAMOD KUMAR ) ( MS. MADHUMITA ROY ) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD; DATED 24/01/2019 - 10 - IT(SS)A NOS.128 & 129/AHD/2016 ASST.YEAR 2008-09 & 2009-2010 PRITI YADAV SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-12 AHMEDABAD. 5. ! ' #$%% / DR ITAT AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER //TRUE COPY// / ( DY./ASSTT.REGISTRAR) ! #$ / ITAT AHMEDABAD 1. DATE OF DICTATION 02/01/2019 (DICTATION PAGES : 7) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 07/01/2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 21/01/2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER