2012 (4) TMI 241 - AT - Income Tax

Assessment of the credits in respect of gifts claimed to be received by the assessees as undisclosed income for the block period - whether the credits could be considered as undisclosed income in terms of 158B(b)?; b) whether, even so, the assessee has to establish the genuineness of the gifts? - held that - no material has been brought on record by the assessee and, in fact, before any authority, to exhibit the disclosure of the impugned credits. In fact, his argument that there is no requirement for furnishing either the capital account or the balance-sheet along with the return, i.e., as per law, with there being no specific column in the return for declaring the credits/gifts received, or that the credits stood reflected by way of capital balance of the assessee-partner per the return of income of the partnership firm/s (which is again, though not proved), is itself an admission of the non-disclosure of the gifts by the assessee. Legal requirement of disclosure of the gifts - held that - sub clause (i) of clause (d) of Explanation to s. 139(9) clearly requires the assessee to furnish his financial statements, including balance-sheet, along with the return of income. The assessee/s, thus, ought to have filed the income and expenditure account as well as the balance-sheet, along with his returns of income, and which have admittedly not been, with the AO going on to state that the capital account or the copy of the bank account bearing the said credits - the gifts being claimed to have been banked - had not been filed along with the returns. As such, while the entries in the books of accounts or documents or transactions may be of relevance and consequence in assailing a search action u/s. 132, where that is the only information in possession of the Revenue, leading to a reason to believe by it, the same would be adequate and/or sufficient to qualify it to be an undisclosed income u/s. 158B(b), where the same represents, wholly or partly, income for property. Genuineness of gift - held that - Gifts are generally also exchanged between close friends and relatives on important occasions, as new borns in the family; landmark birth anniversaries; weddings; etc. It is noteworthy that no gifts have been given by both the assessees to any of their close friends and relatives , including those from whom gifts are being regularly received over the years. - there were materials and information found as a result of search to discredit the gifts under reference, i.e., as not genuine. - Decided against the assessee.

Issues Involved:
1. Assessment of credits in respect of gifts as undisclosed income.
2. Addition of the value of gold jewelry.
3. Levy of surcharge on the tax quantified on the assessee's undisclosed income.

Issue-wise Detailed Analysis:

1. Assessment of Credits in Respect of Gifts as Undisclosed Income:

The principal issue was whether the credits in respect of gifts received by the assessees could be considered as undisclosed income for the block period. The first appellate authority had deleted these additions on the basis that the credits were not undisclosed and no material impugning the genuineness of the gifts was found during the search.

The background facts revealed that the assessees had been receiving gifts from relatives and friends regularly, documented through a printed memorandum of gift. However, none of these were filed along with the returns of income for the years covered by the block period. Enquiries during the assessment revealed that most donors were friends, not relatives, and gifts were not received on special occasions. The AO deemed these as unexplained credits and added them as undisclosed income under section 68, relying on relevant case law.

The CIT(A) found that the gifts, received through normal banking channels and reflected in financial statements, could not be considered undisclosed. However, the Tribunal disagreed, noting that no material was provided to exhibit the disclosure of the credits, and the argument of no legal requirement for disclosure was not upheld. The Tribunal emphasized that the absence of disclosure in the returns filed from year to year indicated non-disclosure for the purpose of the Act.

The Tribunal further noted that the regularity and volume of gifts, lack of special occasions, and the fact that the gifts were not disclosed in returns, coupled with the absence of evidence supporting the financial capacity of donors, discredited the genuineness of the gifts. The Tribunal concluded that the gifts were not satisfactorily explained in terms of section 68 and upheld the additions as undisclosed income.

2. Addition of the Value of Gold Jewelry:

The issue concerned the addition of Rs. 1,06,000/- being the value of 250 gms. of gold jewelry assessed in the hands of Shri Dwarkaprasad Malpani. The jewelry was found in a locker and claimed to be received from close relatives on the occasion of the 25th marriage anniversary. The AO added this amount due to the absence of substantiating evidence.

The CIT(A) restored the matter to the AO for consideration of affidavits from the donors. The AO found the claim unacceptable as the gift was not verifiable with reference to the wealth tax returns of the assessee's wife. However, the CIT(A) accepted the affidavits, noting that the quantity was not high relative to the assessee's status and the donors, and the wealth tax returns were not relevant post the change in law from A.Y. 1995-96.

The Tribunal upheld the CIT(A)'s order, agreeing that proper opportunity was not granted initially and that the AO should have cross-examined the deponents of the affidavits.

3. Levy of Surcharge on the Tax Quantified on the Assessee's Undisclosed Income:

The final issue involved the levy of surcharge on the tax quantified on the assessee's undisclosed income. The CIT(A) had upheld the levy based on the amendment to section 113 effective from 01-06-2002, while the search occurred in October 2000.

The Tribunal referred to the apex court's decisions in CIT v. Suresh N. Gupta and CIT v. Rajiv Bhatara, which held the amendment as clarificatory in nature, applying to the impugned assessments as well. Consequently, the Tribunal upheld the levy of surcharge.

Conclusion:

The Tribunal partly allowed the appeal in the case of Dwarkaprasad Malpani, upholding the addition of undisclosed income and the levy of surcharge but accepting the explanation for the gold jewelry. The appeal in the case of Vishal Malpani was dismissed.

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