9911796707
TMI Blog2012 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Assessing Officer are vague, irrelevant, unspecific, general, unlawful and without Assessing Officer's own application of mind. The ingredients for invoking powers u/s 148 are missing. 2. That the Ld CIT(A)-1, Agra has erred in law and on facts in sustaining an assessment which is patently unlawful. The version of the Ld. Assessing Officer that the assessee has introduced unaccounted money in the garb of bogus entry of Capital Gain/Gift is without any evidence. 3. That the Ld. CIT(A)-1, Agra has erred in law and on facts in upholding assessment without appreciating that the re-opening was done on the allegation that assessee had obtained accommodation entries whereas addition of Rs.1,05,000/- has been made u/s 68 and u/s 69 without distinguishing both the Sections of Law in utter disregard of assessee's submissions. 4. That the Ld CIT(A) has erroneously upheld the re-opening brushing aside the fact that the assessee had furnished with original return complete evidence of Gift of Rs.1 lac received from Shri Govind Ram of Delhi, whose complete details such as his identity, credit worthiness and being an Income Tax payer has been furnished and genuineness of transaction throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in all these appeals are identical, it was contended that, for the sake of convenience, the arguments advanced in ITA No.294/Agr/2011 in the case of Smt. Kamaljeet Kalra may be applied for other appeals also. 7. First I am taking up ITA No.294/Agr/2011 for Assessment Year 1999-2000 in the case of Smt. Kamaljeet Kalra. The facts relating to the issue in dispute in the said appeal are that the assessee is an individual filed her return of income on 15.03.2000 declaring an income of Rs.56,500/-. The Assessing Officer issued notice under section 148 of the Income Tax Act, 1961 ('the Act' hereinafter) to the assessee on 24.03.2006 on the basis of information received from Investigation Wing regarding entries of Long Term Capital Gain/Short Term Capital Gain and gifts, which were found on enquiries by the Investigation Wing as bogus because it was found that the bank accounts from where money has been transferred to various beneficiaries & have been operated by the brokers, who had been providing entries to the beneficiaries by showing them transaction made by them in purchase and sale of shares of certain companies, gifts from certain persons, which in fact never took place. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Delhi. The Assessing Officer directed the assessee to produce Shri Govind Ram for examination in support of her contention, but the assessee could not produce Shri Govind Ram for examination and requested for issuance of summon to Shri Govind Ram. On the request of the assessee, summon under section 131 of the Act was issued to Shri Govind Ram on the address given by the assessee fixing the date for compliance on 26.12.2006. In compliance of the same, neither Shri Govind Ram attended nor filed any written reply. Keeping in view of the facts and circumstances of the case, the Assessing Officer was of the opinion that the assessee has received bogus entry of Rs.1,00,000/- from M/s Essar Pee Advertising, Delhi which is evident from enquiry made by the Department and when caught due to fear of consequence gave it a colour of gift from Shri Govind Ram. The Assessing Officer was also of the opinion that since the assessee could not produce Shri Govind Ram for examination and Shri Govind Ram also not responded to the summon issued under section 131 of the Act as also the department was having specific information that the assessee had received a bogus entry of Rs.1,00,000/- from M/s Es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recitals made in those documents." The Assessing Officer has also cited the decision of the Hon'ble Supreme Court of India in the case of Workman of Associate Rubber Industry Limited, 157 ITR 77, wherein it has been held as under :- "It is the duty of the Court, in every case where ingenuity is expended to avoid taxing and welfare legislation, to get behind the smoke - screen and discover the true state of affairs. The court is not to be satisfied with form and leave well alone the substance of a transaction. Avoidance of welfare legislation is as common as avoidance of taxation and the approach in considering problems arising out of such avoidance has necessarily to be the same." In the case of M/s. Mcdowell & Co., 154 ITR 148 the Hon'ble Supreme Court of India has held that avoidance of tax through colourable device was not permissible. In the case of Sunil Siddarth vs. CIT(A), 156 ITR 507 the Hon'ble Supreme Court of India has held that it was open to the Income-tax authority to go behind a transaction and examine whether the transaction was genuine or not. For this purpose, the ITO can lift the veil and ascertain the truth. 11. After considering the evidences filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal filed by the assessee by upholding the Assessment Order passed by the Assessing Officer. Now the assessee has filed the present appeal against the impugned order dated 15.03.2011 by raising the aforesaid grounds of appeal reproduced in paragraph no.2 above. 12. Shri J.L. Verma and Shri Anil Verma, Advocates appeared on behalf of the assessee. The ld. Counsel for the assessee argued that the assessee has filed her original return of income on 15.03.2000 in Ward No.2(4), Agra showing income of Rs.56,500/- which was assessed under section 143(1)(a) of the Act. Subsequently, the assessee received a notice under section 148 dated 24.03.2008 from Shri Naresh Chandra, ITO-1(2) Agra and another notice under section 148 of the Act dated 28.03.2008 issued by ACIT-1, Agra Ms. Alka Gautam. Both the Assessing Officers assumed jurisdiction simultaneously. It appears that approval under section 151 of the Act has not been obtained. Secondly, the reasons were recorded in stereo type Performa to fill in the blanks by the ITO-1(2), Agra. He has also filed a copy of Performa with his small Paper Book containing page nos.1 to 11 at page no.11. He stated that in view of the decision of Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the donor & ration card of the donor. In this way, the assessee has proved the identity of the donor, his financial capacity being a tax payer and confirmation of gift through banking channel. Thus, the assessee has discharged her onus by filing all the necessary evidences and true facts. Therefore, there is no escapement of any income by the assessee because the Assessing Officer has assessed the income of the assessee under section 143(1)(a) of the Act after considering all evidences filed with the return. 15. Finally, the ld. Counsel for the assessee stated that the Assessing Officer has not disproved the evidences filed by the assessee and he has also not brought on record any evidence collected at the back of the assessee which could lead that the evidences furnished by the assessee are false, incorrect or deficient in any way. At the end, the ld. Counsel for the assessee also stated that the Assessing Officer has not given sufficient opportunity to the assessee to cross examine the person on whose behalf the evidences filed by the assessee were being ignored and assessed the income of the assessee from undisclosed sources. He requested that the appeal filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income on 15.03.2000 which was assessed under section 143(1)(a) of the Act. Subsequently, the Assessing Officer issued notice under section 148 of the Act on 24.03.2006 which was duly served upon the assessee on 25.03.2006. The A.O. issued this notice on the basis of the information received from the Investigating Wing regarding entries of Long Term Capital Gain/Short Term Capital Gain and gifts. The Investigation Wing made an enquiry of the same and found that the bank accounts from where money has been transferred to various beneficiaries have been operated by the brokers, who had been providing entries to the beneficiaries by showing them transaction made by them in purchase and sale of shares of certain companies, gifts from certain persons, which in fact never took place. The assessee was one of the beneficiaries of receipt of entry of Rs.1,00,000/- from M/s Essar Pee Advertising, Delhi. The said draft was issued in the name of the assessee on 30.03.1999 which was found credited in assessee's bank account no.26957 with Canara Bank, Sadar Bazar, Agra. On the basis of these reasons, the Assessing Officer issued notice under section 148 of the Act on 24.03.2006 which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue in dispute in the case of Shri Gurmeet Kalra pertaining to Assessment Year 2001-02 vide order dated 28.02.2011 which has been attached with the impugned order. The Ld. First Appellate Authority has dismissed the appeal of the assessee by following the order dated 28.02.2011. It was found that similar gifts were shown by him and his other family members from different persons living in different parts of Delhi having no relationship and also without any occasion for giving such gifts. It was also found that total amount of gifts received in the year amounted to Rs.8,50,000/- came from the Bank account of two entry givers i.e. M/s Rajiv Fincap Securities and M/s Rohit Fincap Securities with Vijaya Bank, Bhikaji Cama Palace, New Delhi where the account of M/s Essar Pee Advertising, Delhi was also being maintained. The modus operandi followed by the assessee are similar as adopted in the case of Shri Gurmeet Kalra mentioned above in getting the entry for gift of Rs.1,00,000/- shown to have been given by some Shri Govind Ram. In Assessment Year 2001- 02, none of the family members of Kalra family included the present assessee could be able to produce any of the donors because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the assessee has not substantiated her claim before the Assessing Officer as well as before the Ld. First Appellate Authority and even before me. No doubt, the ld. Counsel for the assessee has cited various decisions in support of his contention, but the same are not helpful because merely by filing affidavit, bank account, acknowledgement of Income Tax return, Balance Sheet etc. of the donor, the onus to establish the genuineness of the gift is not proved. While examining the genuineness of the gift, the facts of the case are to be considered, human conduct and preponderance of probability are to be seen. When the matter is of such gifts claimed by the assessee, then the relationship between the donor and the donee and the occasion for giving such gifts are also to be seen keeping in view of the decision of Hon'ble Supreme Court of India in the case of CIT vs. Durga Prasad More, 82 ITR 540, wherein the Hon'ble Supreme Court of India has held as under :- "It is true that apparent must be considered real until it is shown that there are reasons to believe that the apparent is not the real. In a case of the present kind a party who relies on a recital in a deed has to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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