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TMI Blog2013 (1) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Departmental Representative has no objection to condone the delay, we are satisfied that the assessee was prevented by sufficient cause in not filing the appeal within the period of limitation. The delay in filing the appeal is, accordingly condoned. 3. The facts of the case are that the assessee filed return of income at ₹ 53,360 disclosing income from sale of arms, rent and bank interest. On the basis of information that assessee has received bank draft dt. 13th Aug., 2003 amounting to ₹ 1,50,375 through accommodation entries, the AO reopened the assessment under s. 148 of the IT Act. The assessee submitted before the AO that the return already filed may be treated as return filed in response to notice under s. 148. It was submitted that bank draft of ₹ 1,50,375 dt. 13th Aug., 2003 was received as gift of ₹ 1,50,000 from Shri Kiran Sharma, resident of Delhi. The assessee filed copy of gift deed and affidavit of the donor. It was stated that the donor is assessed to tax at Delhi. The AO requested the assessee to produce all the documentary evidences pertaining to the gift in question, i.e., original gift deed, purpose and occasion of such gif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee has not agitated reopening of assessment before the AO and even if this ground was raised for the first time before the learned CIT (A), nothing was submitted by the counsel for the assessee before the learned CIT (A) with regard to reopening of assessment under s. 148 of the IT Act. Therefore, the learned CIT (A) rightly observed that the assessee does not want to press this ground and accordingly, the same was dismissed. The learned Departmental Representative submitted that no good reasons have been given for not raising the above grounds of appeal in the main ground of appeal before the Tribunal. Therefore, the same may not be admitted for hearing. The learned Departmental Representative relied upon the order of the Tribunal, Mumbai Bench in the case of Batlihoi Co. Ltd. v. Dy. CIT [1998] 67 ITD 397, in which it was held that appellate authorities, if satisfied that the additional ground raised was bona fide and same could not have been raised earlier for good reasons, may in its discretion permit the assessee to raise an additional ground. It was also held that the assessee's contention that the Tribunal was bound to admit every additional ground of appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proceedings under s. 148 before learned CIT (A), but nothing was submitted before the learned CIT(A) to challenge the issue of notice under s. 148 and even in the written submissions filed before the learned CIT(A), no such reasons or grounds have been mentioned (paper book 13) to challenge the initiation of reassessment proceedings. The learned CIT(A) also specifically noted in the appellate order that nothing was also orally argued by the assessee's counsel against reopening of assessment under s. 148, The learned CIT (A), therefore, rightly held that the assessee does not want to press this ground of appeal and accordingly, the same was rightly dismissed by the learned CIT(A). It is well-settled law that no appeal lies on agreed assessment because there is no grievance of the assessee or the Department in such a situation when something is agreed for the purpose of assessment. We rely upon the following decisions : (i) Decision of Hon'ble Bombay High Court in the case of Jiwatlal Purtapshi v. CIT [1967] 65 ITR 261 in which it was held as under ; Held, that the Department, having agreed to delete the amount from the assessment and having conceded the deletion be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the first time when hearing of appeal was taken up, the assessee raised the additional ground Nos. 1 and 2 challenging the reopening of assessment, but no reasons have been given why the same could not be raised in the main grounds of appeal. Thus, there was no bona fide omission or good reasons arise in favour of the assessee to raise the above additional grounds of appeal. Further, the issue of jurisdiction under s. 148 is not purely a question of law and it requires adjudication of facts and consideration of reasons and material, on which reopening of assessment has been made. Therefore, the contention of the learned counsel for the assessee that it is purely a legal question is also rejected. Considering the above discussion in the light of the decision of Hon'ble Allahabad High Court above and other decisions, we are not inclined to admit additional ground Nos. 1 and 2 raised by assessee in her application dt. 10th Oct., 2012, The request of the assessee for admission additional grounds of appeal is, accordingly, rejected. 7. Now, we consider the issue on merit, in which the assessee challenged the addition of ₹ 1,50,000 on account of unexplained gift receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such gift and relationship of donor with the donee. The assessee was also directed to produce the donor before the AO to verify the contention of genuine gift. Despite giving sufficient opportunity, the assessee failed to produce all the original documents before the AO and also failed to produce the donor for examination before the AO. Apart from the above, the assessee also avoided to appear before the AO for her personal examination on oath to find out the truth in the matter. Thus, the requirements of the AO have not been satisfied and the AO was prevented from making proper enquiry in the matter by the assessee. Copy of the gift deed is filed in the paper book in which also the donor failed to explain any relation with the assessee or how he was prompted to make gift to the assessee. In the copy of the affidavit, it was claimed that out of natural love and affection, gift is given out of own funds and past savings, but no evidence was produced as to how a stranger would have any natural love and affection with the donee. Copy of bank account filed at p. 6 of the paper book, in which opening balance of the donor was ₹ 5,894 out of which ₹ 1580 was withdrawn on 7th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for examination at the assessment stage how the assessee would produce the donor and the original documents in the set aside proceedings is highly unbelievable. Further, the assessee has not been able to prove any relationship with the donor and the occasion for giving a gift. The AO never asked the assessee to prove source of the source, but wanted to examine the genuineness of the gift in the matter. Mere filing of declaration of gift and affidavit would not prove the identity of the donor, his creditworthiness and source of making the gift. Merely because the gift is given through DD would not prove the genuine gift in the matter, particularly when it is a gift made by a pauper having a bank balance of Rs, 4,314 for giving gift of ₹ 1,50,000 to the assessee and that too when both donor and donee are strangers. Since no sufficient evidences have been filed before the authorities below to prove the genuineness of the gift in the matter, therefore, it is clear that gift in the matter is not genuine and is the arranged affair of the assessee to receive accommodation entry. Hon'ble Delhi High Court in the case of CIT v. Anil Kumar [2007]292 ITR 552/[2008] 167 Taxman 143 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Vice President who concurred with the findings and conclusion of the AO and the CIT(A). On appeal the High Court reappreciated the evidence and substituted its own findings and came to the conclusion that the reasons assigned by the Tribunal were in the realm of surmises, conjectures and suspicion. On appeal to the Supreme Court : Held, reversing the decision of High Court, that findings of the AO, the CIT(A) and the Tribunal were based on the material on record and not on any conjectures and surmises. That the money came by way of bank cheques and was paid through the process of banking transaction was not by itself of any consequence. The High Court misdirected itself and erred in disturbing the concurrent findings of fact. Hon'ble Punjab Haryana High Court in the case of Yash Pal Goel v. CIT [2009] 310 ITR 75/181 Taxman 175 held : Held, dismissing the appeal that the financial position of M suggested that he neither had the capacity to make the gift nor the source from where the gift was made. No reason whatsoever had been assigned for gifting such a huge amount by M to the assessee. M never visited the home of the assessee and hence there was no love and affect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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