2011 (10) TMI 747

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....aming of the assessment u/s 147/143(3) thereto. 2. That having regard to the facts and circumstances of the case, the Ld CIT(A) has erred in law and on facts in confirming the action of Ld Assessing Officer in making an addition of Rs..1,01,000/- as income from unexplained source u/s 68 of the Income Tax Act, 1961 on account of gift received from Shri Ashok Bindal. 3. That in any case and in any view of the matter action of Ld CIT(A) in confirming the action of the Ld Assessing Officer in making an addition of Rs..1,01,000/- on account of gift received is illegal, unjustified bad in law and deserves to be quashed. 4.That having regard to the facts and circumstances of the case, Ld CIT(A) has erred in law and on facts in not reversing the action of Ld Assessing Officer in charging interest u/s 234A, 234B and 234C of the Income Tax Act, 1961. 5. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other." 2. The assessee filed return of income on 26.7.2005 declaring total income of Rs..1,63,748/-. The same was processed u/s ....

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....our goodself and as soon as the assessee is able to persuade him, assessee would produce him. The assessee has got original gift deed also duly signed by the donor. Earlier photocopy of the gift deed unsigned from the donee's side and witness was filed. However, original document contained signature of donor and donee both and witness as well, a photocopy of such deed is again enclosed and it is requested that earlier copy may please be ignored as it was taken before the donee and witness could put his signature at the time of receiving the gift." 4. The Assessing Officer, thereafter, on the basis of evidence on record passed the assessment order on 12.12.2007. The Assessing Officer noted that the assessee did not indicate the relationship of the donor. If the donor was a stranger, the Assessing Officer opined that no reason has been adduced as to why he should part with his hard earned money. The bank statement of Shri Ashok Bindal was also not furnished by the assessee. The donor was never produced for examination. There was photocopy of gift deed which was not signed by the donor and witness and another photocopy of the deed furnished with the letter dated 29.11.2007 which ha....

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...., 970 (SC). 9. CIT v. Ram Lal Manohar Lal 158 ITR 9, 11 (Del.). 10.CIT v., Chand Ball Rice Mills P. Ltd. 203 ITR 368, 372 (Cal.). 11.CIT v,. Narender Nath Parveen Chand 101 ITR 7(Punj.). 12. CITv. Lakhmani Mewal Dass 103 ITR 437 (SC). 13.CIT v. Chugga Mal Raj Pal 79 ITR 603 (SC). 14. Sheo Nath Singh v. CIT 82 ITR 147 (SC). 15. CIT v. Pradeep Gupta in I.T.A. No.353/06 207 CTR 115(Del.). 9. With reference to the merit of addition of Rs..1,01,000/- it was submitted before the Ld CIT(A) that the assessee had furnished following evidence before the Assessing Officer:- i) A copy of the letter to Assessing Officer in which it was explained that appellant received a gift of Rs..1,01,000/- from Shri Ashok Bindal. ii) A copy of affidavit of Shri Bindal. iii) A copy of PAN card of Mr. Bindal. iv) A copy of return of Mr. Bindal to show that he was income tax assessee. v) A copy of another letter to Assessing Officer along with which copy of bank statement of the donor and photocopy of the gift deed was filed. vi) A copy of Gift Deed. 10. Thus, it was contended that the assessee had....

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.... ITO v. Smt. Gurinder Kaur (2006) 102 ITD 189 (Del.). 5. R. Dalmia v. Union of India (1972) 84 ITR 616, 619 (Del.). 6. MTNL v. Chairman CBDT (2000) 246 ITR 173 (Del.). 7. ACIT v. Rajesh Jhaveri Stock Brokers Pvt. Ltd. (2007) 291 ITR 500 (SC). 8. Consolidated Photo & Finvest Ltd. v. ACIT (2006) 281 ITR 394 (Del.). 9. ITO v. Shree Bajrang Commercial Co. (Pvt.) Ltd. (2004) 269 ITR 338 (Cal.). 10. Central Provinces Manganese Ore Co. Ltd. v. ITO (1991) 191 ITR 662 (SC). 12. The Ld CIT(A), therefore, upheld the validity of reopening of the assessment u/s 147 of the Act. 13. As regards the justification of addition, the Ld CIT(A) noted that the gift was given to the appellant through cheque on the same day on which a credit of equivalent amount was made in the account of the donor. The assessee also could not produce the donor for verification of the claim that the amount was indeed received as gift. The Ld CIT(A) opined that the papers/evidence furnished by the assessee were not sufficient to prove the genuineness of the transaction particularly when the donor was not presented before the Assessing Officer. Reliance was placed b....

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....nature Hotels (supra), it was contended by him that the reopening of assessment u/s 148 may be considered as invalid. 18. The Ld DR, on the other hand, in addition to relying on the orders of the authorities below submitted that in the case at hand the information on the basis of which the case was reopened was not vague information. Thus, it was contended by him that the ratio of Signature Hotels (supra) is not applicable in the facts of the present case. Placing reliance on page 8 & 9 of the Ld CIT(A)'s order, it was further contended by him that sufficiency of information cannot be gone into for deciding the issue of reopening of assessment. The Assessing Officer also cannot make any enquiry before reopening the assessment as that would amount to roving enquiry. It was submitted by him that there was prima facie evidence before the Assessing Officer on the basis of which it could be held by him that there was escapement of income. As only processing u/s 143(1) was done prior to the reopening of the assessment, it was contended by him that there is no question of change of opinion. The reopening was also not done mechanically. Mere recording of reasons in the cyclostyled form ....

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....i Deepak Gupta. This is evident from assessee's paper book pages 62-63. However, no such opportunity was allowed to the assessee by the Ld CIT(A). It was contended that as the assessee has discharged its primary onus, it was for the revenue to establish that indeed the amount could be assessed as income of the assessee. In such circumstances, it was submitted that it was obligatory on the part of the revenue to allow the assessee cross examination of Shri Deepak Gupta. In support of the above contention following case laws were relied on:- 1. CIT v. Ahswani Gupta 322 ITR 396 (Del.) 2. CIT v. Anupam Kapoor, 299 ITR 179 (P&H). 21. It was also contended that the provision of section 68 was not applicable in the facts of the case in so far as the amount was not credited in the books of accounts of the assessee. Reliance was placed on the following case laws:- 1. Jwaharlal Oswal v. ACIT 71 ITD 324 (Chd.). 2. Ms. Mayawati v. DCIT 113 TTJ 178 (Del.). 3. CIT v. Taj Borewalls 291 ITR 232 (Mad.). 22. The Ld DR, on the other hand, in addition to relying on the orders of the authorities below submitted that in the present case, what is dispute....