MRS. SHAKTI MITTER,NEW DELHI vs. ACIT, NEW DELHI

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ITA 1318/DEL/2011Status: DisposedITAT Delhi23 September 2016AY 2008-095 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the gift amount was meager for an NRI residing abroad for 10 years, and their creditworthiness could not be doubted. The presence of an affidavit certified by the Indian Embassy and other supporting documents was considered sufficient.

What were the facts?

During a search, foreign currency was found with the assessee. The assessee claimed a portion of it, Euro 2000, as a gift from her non-resident sister-in-law. The Assessing Officer added this amount as income from other sources due to lack of proof of the donor's creditworthiness and genuineness of the transaction.

What were the issues?

Whether a gift from a non-resident sister-in-law, supported by an affidavit and other documents, can be added as income from other sources when the donor's creditworthiness is questioned.

Which sections of the Income-tax Act were involved?

Section 56

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, DELHI BENCH ‘G’ NEW DELHI

Before: SHRI I.C. SUDHIR & SHRI L.P. SAHU

Hearing: 16.08.2016

Per L.P. Sahu, Accountant Member:

This is an appeal filed by the assessee against the order of the ld.

CIT(A)-I, New Delhi dated 28.01.2011 for the assessment year 2008-09 on the following grounds :

1.

1. That on the facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeals)-I, New Delhi [briefly 'the CIT(A)'] has erred in confirming the addition of Rs. 1,12,220/- being the gift of foreign currency received from non resident sister.

2. That on the facts and circumstances of the case and in law, the CIT(A) having accepted that amount of Euro 2000 was received by the Appellant from her nonresident sister erred in upholding the addition

for the reason that creditworthiness of the donor was not proved. It was not appreciated that the amount of the gift was nominal.

3. That on the facts and circumstances of the case and in law, the CIT(A) has erred in not appreciating that the provision to section 56 of the Act mandates that gift from blood relations do not represent income from other sources.

2.

The brief facts of the case are that a search and seizure operation u/s. 132 of the Income-tax Act (in short ‘the Act’) was carried out in the case of assessee on 21.09.2007. During the course of search operation at the residence of the assessee, some foreign currency amounting to Pounds 3840, Euro 1900 and US Dollars 1035 was found. The assessee was asked to furnish the source of currency found. In response, the husband of the assessee Sh.

Arun Mitter, submitted the reply showing the foreign currency in the hands of the all his family members including the assessee as gift. The assessee has shown a sum of Euro 2000 as gift received from Smt. Anjali Talwar, the sister- in-law of the assessee residing at Muscat (Oman). However, no document was filed by the assessee in support of her above submission except the affidavit dated 14.11.2009 signed by Smt. Anjali Talwar. The Assessing Officer noted that in the case of gift, three conditions, i.e., identity and creditworthiness of the donor and genuineness of the transaction have to be satisfied. In response to the query of the Assessing Officer, only the affidavit of the donor was filed which proves the identity of the donor, as noted by the Assessing Officer. The AO for want of satisfying the other conditions, noted above, added the entire foreign currency in the hands of Sh. Arun Mitter and also added Euro 2000 equivalent to Rs.1,12,220/- (one Euro = Rs.56.11 as on 12.09.2007) in the hands of the assessee on protective basis. Aggrieved by the order of the AO, the assessee preferred an appeal before the ld. CIT(A) who upheld the order of the Assessing Officer vide impugned order.

3.

The ld. AR submitted that the Assessing Officer has made the addition merely on the basis of suspicion. The gift was not made by a stranger. The appellant received the gift out of natural love and affection between close family relations. Moreover, the gift was not for unreasonable amount. It is customary in Indian Society to give gifts to the relatives and in the present case, the gift was given to blood relation and such gifts are recognized even by the provisions of the Act inasmuch as section 56 of the Act recognizes such gifts. Therefore, there was no reason to disbelieve the gift on the alleged ground of creditworthiness of the donor and genuineness of the transaction.

The donor is NRI and living with her husband from last 10 years at Muscat (Oman). Therefore, their creditworthiness cannot be doubted for giving a gift of such a meager amount. The affidavit of Mrs. Anjali Talwar dated 14.11.2009 duly certified by Consular Officer, Embassy of India, was filed with the AO.

Besides, a letter of donor was also addressed to the Assessing officer, confirming the gift of Euro 2000 to the appellant. It is submitted that in foreign currency Euro 2000 is not a substantial amount for a person who is NRI living in Gulf Country for last 10 years and is kept in cash and no specific drawing from the bank is required to be shown for NRI living abroad for such a long duration. The ld. AR relied on the judgment of Hon’ble jurisdictional High Court in CIT vs. Suresh Kumar Kakkar, 324 ITR 231 and the decision of coordinate Bench of Delhi Tribunal in Surajbhan Bajaj vs. ITO, 102 TTJ 665.

4.

On the other hand, the ld. DR tried to justify the orders of the authorities below and submitted that the authorities below have made good orders which do not require any interference, as the creditworthiness of donor and genuineness of the transaction has not been proved by assessee.

5.

After hearing both the parties and perusing the materials available on record, we find that the gift amount of Euro 2000 is a meager amount for the person who is NRI and residing abroad for last 10 years. Therefore, their creditworthiness cannot be doubted in the peculiar facts of the present case.

The donor has submitted an affidavit which has been duly certified by Consular Officer, Embassy of India and a letter addressed to the Assessing Officer affirming the gift of Euro 2000 to the assessee was also placed before the AO. Copy of passport was also placed by the assessee. It is also not in dispute that the donor visited India in June/July, 2007. In Indian Society, it is not strange that an NRI when visits to its country, usually give some gifts to its near and dear, as in the instant case. In presence of all these facts and in the totality of facts and circumstances of the case, we find no justification to support the order of the ld. CIT(A) and the contentions of the assessee are found to have considerable merit. Accordingly, the appeal of the assessee deserves to be allowed.

6.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 23.09.2016.

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