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TMI Blog2012 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... lationship with so-called donor Shri Govind Ram and also failed to establish the occasion for receiving such gift as per the evidences produced by the assessee. In favor of Revenue. - ITA Nos.294 & 295/Agr/2011, ITA No.296/Agr/2011, ITA No.297/Agr/2011 - - - Dated:- 15-11-2011 - H S Sidhu, J. For Appellants: Shri J L Verma Shri Anil Verma, Advs. For Respondent: Shri A K Sharma, Jr. DR ORDER These appeals have been filed by three different assessees against the different impugned orders passed by the ld. CIT(A)-I, Agra for the Assessment Years 1999-2000, 2001-02, 2001-02 2001-02 respectively. The issues involved in all these appeals are identical, except difference of amounts in dispute, therefore, for the sake of convenience, these appeals are disposed of by passing one consolidated order. 2. Since the grounds taken are almost similar in all the appeals filed by the assessees, grounds raised in ITA No.294/Agr/2011 in the case of Smt. Kamaljeet Kalra for the Assessment Year 1999-2000 are reproduced as under :- Grounds in ITA No.294/Agr/2011 for A.Y. 1999-2000 1. That the Ld. CIT(A)-1,Agra has erred in law and on facts in upholding A.O. s jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) himself in the case of any other assessee cannot be imposed on the appellant without confronting the assessee with the facts of the case and without affording opportunity to distinguish the same. 9. That the Ld. CIT(A) has been unjust, improper and unlawful in brushing aside the various decisions of Hon ble Tribunal and Courts without distinguishing the same from his own views. 10. That the appellant craves leave to add, alter, amend or withdraw any ground of appeal at any time. 3. At the time of hearing, the ld. Counsel for the assessee stated that there is a delay of 21 days in filing the ITA No.297/Agr/2011 in the case of Shri Gurmeet Kalra for the Assessment Year 2001-02. He stated that the assessee has filed an application for condonation of delay and requested that the delay of 21 days may be condoned and the appeal may be admitted and heard on merits. 4. The Ld. Departmental Representative, on the other hand, has not raised any objection on the request of the assessee. 5. Keeping in view of the facts and circumstances of the aforesaid case and the reasons mentioned by the assessee in the application for condonation of delay, I condone the delay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under section 148 of the Act on various grounds by raising various objections but the Assessing Officer considered the same and held that there is no infirmity in the issuance of notice in dispute under section 148 of the Act. The Assessing Officer supported his view by various decisions rendered by the Hon ble Supreme Court of India as well as the Hon ble High Courts. 9. The assessee was requested to furnish evidence regarding the genuineness of the entry of Rs.1,00,000/- mentioned above received from M/s Essar Pee Advertising, Delhi. The assessee has given her reply dated 14.08.2006 specifically denying of having received any draft from M/s Essar Pee Advertising, Delhi. In view of the specific denial of the assessee, the Assessing Officer made an enquiry from the banks and found that draft no.186300 dated 30.03.1999 was issued from Vijaya Bank, Bhikaji Kama Palace, New Delhi and the same was got deposited in assessee s account no.26957 with Canara Bank, Sadar Bazar, Agra. The Assessing Officer confronted the same to the assessee and she stated that vide her reply dated 13.12.2006 that no such draft was received by her from M/s Essar Pee Advertising, Delhi but she receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Essar Pee Advertising, Delhi to evade tax. 10. The Assessing Officer also considered the relationship between the donor and the donee and the occasion of the gifts in dispute along with human probabilities and conduct on the issue in dispute keeping in view of the decision of Hon ble Supreme Court of India in the case of CIT vs. Durga Prasad More reported in 82 ITR 540 (SC) , wherein it has been 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 establish the truth of those recitals, otherwise it will be very easy to make self serving statements in documents either executed or taken by a party and rely on those recitals. If all that an assessee who wants to evade tax is to have some recitals made in a document either executed by him or executed in his favour then the door will be left wide open to evade tax. A little probing was sufficient in the present case to show that the apparent was not the real. The taxing authorities were not required to put on blinkers while looking at the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has received a bogus entry of Rs.1,00,000/- from M/s Essar Pee Advertising, Delhi in lieu of cash and subsequently gave it a colour of gift in the name of Shri Govind Ram of Delhi. Since the draft was issued on 30.03.1999 and the assessee has admitted this draft in the name of Shri Govind Ram, the draft was encashed and deposited in the account of the assessee on 05.04.1999. The assessee could not establish that the draft was not received from M/s Essar Pee Advertising, Delhi but from Shri Govind Ram of Delhi by any evidence in support of her claim in the form of bank account of Shri Govind Ram. Shri Govind Ram has also not been produced for examination. Even Shri Govind Ram did not attend in response to the summon under section 131 of the Act issued by the Department. The assessee has not proved the genuineness of the transaction in dispute. Therefore, the amount of Rs.1,00,000/- was added in the year under consideration as the income of the assessee from undisclosed sources and a commission @ 5% amounting to Rs.5,000/- was also being added to the income of the assessee and he completed the assessment in dispute under section 143(3)/147 of the Act on 28.12.2006. Aggrieved by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court has held as under :- Information received by the Assessing Officer from DIT (Inv.) that the assessee has introduced unaccounted money by way of an accommodation entry being extremely scanty and vague cannot be regarded as a material or evidence that prima facie establishes escapement of income, more so as the Assessing Officer did not apply his own mind to the information to arrive at the belief as to whether or not any income had escaped assessment, proceedings u/s 147 are quashed 14. He requested that the Assessing Officer has issued notice under section 148 of the Act without any relevant and reliable evidence, therefore, the Assessment Order in dispute may be cancelled. Secondly, on merit, he argued that the Assessing Officer completed the assessment in dispute under section 143(1)(a) of the Act which was reopened without any reasonable cause and without obtaining approval as required under section 151 of the Act and finally assessed the alleged escaped income stated in the reasons for invoking section 148 are quite different under different heads. He further stated that the assessee has filed all required evidences before the Assessing Officer which included m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received a gift of Rs.1,00,000/- from one Shri Govind Ram, S/o. Shri Shiv Kumar, X-65, Budh Vihar, Delhi, but as required by the Assessing Officer, the assessee has not produced Shri Govind Ram before the Assessing Officer for examination in support of her contention. Meaning thereby, the plea of the assessee is baseless, without any evidence. Therefore, the Assessing Officer has rightly made the addition in dispute by issuing a valid notice under section 148 of the Act. In support of his contention, he cited decision of Hon ble Punjab Haryana High Court in the case of Lall Chand Kalra vs. CIT reported in (1981) 22 CTR (P H) 135 wherein the Hon ble High Court has held that one of the gifts being from a stranger and the other from a relative who had other more important liabilities, they cannot be held to be genuine. In the present case also, the assessee has received the gift from the stranger who have no relation with the assessee and without any occasion. Therefore, he requested that the appeal filed by the assessee may be dismissed. 17. I have heard both the parties and perused the relevant records available with me especially the written submission filed by the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... processed under section 143(1)(a), only one condition is required to be satisfied that the Assessing Officer must have reason to believe that income chargeable to Income tax has escaped the assessment. In other words, if the Assessing Officer for whatever reason has reason to believe that income has escaped assessment, it confers jurisdiction to reopen the assessment. The Ld. First Appellate Authority supported his view by the decision of Hon ble Supreme Court of India in the case of ACIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 161 Taxman 316 (SC) . After going through the detailed order passed by the Ld. First Appellate Authority, I am of the considered opinion that notice issued by the Assessing Officer under section 148 of the Act is a valid notice as per the provisions of sections 147 148 of the Act and as per the ratio laid down by the Hon ble Supreme Court of India in the case of ACIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (supra). Therefore, I uphold the impugned order on the legal issue and reject the arguments advanced by the ld. Counsel for the assessee. 19. As regards to the arguments advanced by the ld. Counsel for the assessee on merits, the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence Act, 1872. After going through the detailed order passed by the Ld. First Appellate Authority on the issue in dispute, I am of the view that the assessee failed to discharge the onus to establish the genuineness of the gift shown by her in the Income tax return. 20. The Ld. First Appellate Authority has also conducted enquiry during the appellate proceedings and found that the amount in dispute through demand draft was issued from the Bank account of 2664 of M/s Essar Pee Advertising, Delhi and Shri Govind Ram was not found in their Bank account as alleged by the assessee. After going through the orders passed by the Revenue authorities especially the impugned order passed by the Ld. First Appellate Authority, I find that the assessee has failed to establish her relationship with so-called donor Shri Govind Ram and also failed to establish the occasion for receiving such gift as per the evidences produced by the assessee before the Revenue Authorities as well as before me which has rightly been held by the Revenue Authorities as not admissible because the same has not been attested by the competent authority or by the donor. The Assessing Officer has given full opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 21. Keeping in view of the above discussions supported by the decisions rendered by the Hon ble Supreme Court of India, the assessee has not substantiated her claim before the Revenue Authorities as well as before me. Therefore, I am of the considered opinion that the Ld. First Appellate Authority has passed a well reasoned order after discussing in detail with the support of various decisions of Hon ble Supreme Court of India as well as the decisions of Hon ble High Courts. Therefore, no interference is called for in the impugned order. I uphold the same by dismissing the appeal filed by the assessee. In the result, ITA No.294/Agr/2011 filed by the assessee is dismissed. 22. In respect of ITA Nos.295, 296 297/Agr/2011 filed by Smt. Kamaljeet Kalra, Shri Trilok Singh Kalra and Shri Gurmeet Kalra respectively all for the Assessment Year 2001-02, since the facts and the issues involved in all these appeals are i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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