UMESH DUTT SHARMA,JAIPUR vs. ITO, DAUSA

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh HkkxpUn] ys[kk lnL; ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No. 631/JP/2015 fu/kZkj.k o"kZ@Assessment Year : 2010-11 cuke Shri Umesh Dutt Sharma The ITO Vs. Prop. M/s. Shri Krishan Hospital Dausa Krishna Kuttir, Behind Purani Nizamat Lalsot Road, Dausa LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABPDS 1916 D vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by: Shri B.P. Mundra, CA jktLo dh vksj ls@ Revenue by :Shri R.A. Verma, Addl CIT-. DR lquokbZ dh rkjh[k@ Date of Hearing : 18/01/2017 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 25 /01/2017 vkns'k@ ORDER PER BHAGCHAND, AM The assessee has filed an appeal against the order of the ld. CIT(A), Alwar dated 7-05-2015 for the assessment year 2010-11 raising therein following ground:- ‘’That on the facts, in totality of the circumstances and in law and in view of detailed objections/ submissions made before the lower authorities, the addition as undisclosed income of Rs. 1,80,000/- received as gift from Shri Krishna Dutt Sharma, father of the assessee is bad in law and facts

2 ITA No. 631/JP/2015 Shri Umesh Dutt Sharma vs. ITO, Dausa . and ld. CIT(A) erred in not allowing the appeal and is bad in law and facts.’’

2.1 Apropos solitary ground of the assessee, the facts as emerges from

the order of the ld. CIT(A) is as under:-

4.3 I have gone through the assessment order as well as submissions made by the appellant and find that an addition of Rs. 1,80, 000 has been made by the AO on account of unexplained gifts received by the appellant. During the course of assessment proceedings, while scrutinizing the details of increase in the capital account balance, it was found by the AO that an amount of Rs. 3,80,000 has been received as gifts by the appellant from his father Sh. Krishan Dutt Sharma apart from an amount of Rs. 90,000 received as gift from Smt. Kiran Dutt Sharma. 4.4 AO has treated only an amount of Rs. 1,80,000 as unexplained gift received from his father Sh. Krishan Dutt Sharma on 05-04-2009. This amount was stated to have been received in cash. The appellant failed to furnish adequate evidence and justifiable reasons to explain the sources of availability of cash in the hands of his father. Therefore, an amount of Rs. 1,80,000 credited in the capital account of the appellant was held to be unexplained. 4.5 The appellant has reiterated the submissions filed before the AO and it is submitted that his father has been regularly filing income tax return. A copy of the ITRs filed by Sh. Krishan Dutt Sharma, a confirmation letter along with a copy of the bank account has been filed to substantiate.

4.6 Having considered the material available on record, I find that AO has been fair and reasonable in accepting the amount of gifts received through the banking channels by the appellant as genuine. However, the amount of Rs. 1,80,000 received in cash from Sh. Krishan Dutt Sharma could not be satisfactorily explained with evidence. I have gone through the copy of bank account of Sh. Krishan Dutt Sharma and do not find the fact acceptable that an amount of Rs. 4.45,000 shown to have been withdrawn in the year 2007 from the bank account as the source of cash gift having been made in April, 2009. This fact becomes more pronounced as the returns filed by Sh. Krishan Dutt Sharma show that he has been engaged in the business of sale of medicines. Therefore, the factum of having withdrawn cash of Rs. 4,45,000 on 14-11-2007, followed by

3 ITA No. 631/JP/2015 Shri Umesh Dutt Sharma vs. ITO, Dausa . Rs. 90,000 on 30-04-2008, does not support the contention that part of the cash withdrawn has been used for making gift in the year 2009. The normal human conduct, after withdrawing huge amount of cash is to subsequently withdraw the cash only if the amount withdrawn earlier has been spent. 4.7 Thus, considering all these factors, I do not find any justification in the arguments taken by the appellant and hold that an amount of Rs. 1,80,000 found credited in the capital account of the appellant is unexplained. Accordingly, an addition of Rs. 1,80,000 made by the AO on this account is confirmed.’’

2.2 During the course of hearing, the ld. AR of the assessee prayed that

lower authorities have erred in confirming the addition of Rs. 1.80 lacs as

the assessee had got the amount of Rs. 1.80 lacs as gifts from his father

Shri Krishan Dutt Sharma who was retired on 30-06-2003 as Joint

Agriculture Director (Information) from Rajasthan State Govt., Jaipur.

2.3 The ld. DR relied on the orders of the lower authorities.

2.4 I have heard the rival contentions and perused the materials

available on record. It is noted from the available records that the assessee

had received gift of Rs. 1,80,000/- on 5-04-2009 from his father Shri

Krishan Dutt Sharma for which the father of the assessee also filed an

affidavit to this effect confirming therein the details of the amounts as

under (pages 8 & 9 of assessee's paper book) :-

‘’Gift to Umesh Dutt Sharma of Rs. 1,80,000/- on 5-04-2009. For giving this gift Rs. 75,000/- was given out of withdrawal of Rs. 4,45,000/- on 14-11-2007 from SBBJ a/c No. 14575 ledger No. 5106348346-2, Rs. 90,000/- on 10-07-

4 ITA No. 631/JP/2015 Shri Umesh Dutt Sharma vs. ITO, Dausa . 2008 from SBBJ a/c No. 14575 ledger No. 5106348346-2 and balance Rs. 15,000/- was given out of withdrawal of Rs. 80,000/- from the Bank of Rajasthan Ltd. A/c No. 35301001415323.

I confirm that I had given this amount out of above withdrawal and these Rs. 1,80,000/- was kept by me at my house. These withdrawal were never used anywhere as I was knowing that my son Shri Umesh Dutt Sharma shall require this amount for hospital purpose.’’

It is also noted from the records that the father of the assessee was a

Retired Govt. Officer who got the retrial benefits from the State Govt. as

under (page 35 & 36 of assessee's paper book):-

(i) GPF on 17-04-2003 Rs. 3,42,000/- (ii) SI on 16-06-2003 Rs. 1,40,000/- (iii) Leave encashment on 1-07-03 Rs. 2,11,953/- (iv) GPF on 14-07-2003 Rs. 1,03,000/- (v) GPF on 19-11-2003 Rs. 1,67,019/- Total Rs. 9,63,972/-

The ld. AR of the assessee also filed PAN AFPPS2211 F of Shri Krishan

Dutt Sharma i.e. the father of the assessee (page 34 of the assessee's

paper book). Hence, from the details available on record that the

relationship between the donor and donee i.e. father and son is

established and thus the father has given the gift of Rs. 1,80,000/- to his

son being natural love and affection which is the main ingredient in

giving genuine gift. It is also noted that the essential ingredients in order

5 ITA No. 631/JP/2015 Shri Umesh Dutt Sharma vs. ITO, Dausa . to give the gift by the father to the assessee i.e. identity, creditworthiness and genuineness of the transactions which are proved in the case of the assessee. It is also noted that the Revenue has failed to establish that Shri Kishan Dutt Sharma has spent the withdrawal of Rs. 4.45 lacs elsewhere. Hence, in this view of the matter, the solitary ground raised by the assessee is allowed. 3.0 In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 25 /01/2017

Sd/- ¼HkkxpUn½ (Bhagchand) ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 25 /01/ 2017 *Mishra आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Umesh Dutt Sharma, Dausa izR;FkhZ@ The Respondent- The ITO, Ward, Dausa 2. vk;dj vk;qDr¼vihy½@ CIT(A). 3. 4. vk;dj vk;qDr@ CIT, विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. 6. xkMZ QkbZy@ Guard File (ITA No. 631/JP/2015) vkns'kkuqlkj@ By order,

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