High Court Of Punjab & Haryana
Subhash Chander Sekhri vs. DCIT
Sections 68, 260A
Asst. Year 1993-94
Adarsh Kumar Goel & Rajesh Bindal, JJ.
IT Appeal No. 265 of 2006
31st July, 2006
Counsel Appeared
S.K. Mukhi, for the Appellant
JUDGMENT
By the court :
This is an appeal filed by the assessee raising following substantial questions of law, arising out of order passed by the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar (SMC) (for short ‘the Tribunal’) in ITA No. 448/Asr/2000, dt. 13th Sept., 2005, for the asst. yr. 1993-94 :
“(a) Whether, on the facts and circumstances of the case, the Tribunal was justified in confirming the action of authorities below by upholding the addition made on account of impugned gifts of Rs. 47,752 and Rs. 35,752 (being enhancement of income) ?
(b) Whether, on the facts and circumstances of the case, the findings of Tribunal are perverse and against the evidences on record thus unsustainable in law ?
(c) Whether the Tribunal has misdirected itself in being influenced by irrelevant factors and applying erroneous criteria while deciding the issue of genuineness of the impugned gifts ?”
2. The facts, as evident from the record, are that the assessee filed return of income on 30th March, 1995 declaring his income at Rs. 2,33,110. Search and seizure operation was conducted in M/s Subash Chander & Brothers group of cases. The assessee is connected with the group. During the examination of the cases, it was found that the assessee was having a joint account along with Smt. Raman Rani in which following credit entries were found : Vide a questionnaire sent to the assessee, he was required to explain the source of the credit entries. During the course of assessment, in spite of a number of opportunities given to the assessee, the assessee failed to discharge the onus laid on him to prima facie prove (i) identity of his creditor, (ii) capacity of such creditor, and (iii) genuineness of transaction. Accordingly, the cash credits found in the saving bank account were treated as unexplained income of the assessee as per s. 68 of the IT Act, 1961 (for short ‘the Act’) and the peak amount of Rs. 47,752 was credited to the income of the assessee.
3. Against the impugned addition, the assessee went in appeal before the Commissioner of Income-tax (Appeals) [for short ‘the CIT(A)’]. During the course of appellate proceedings, the assessee submitted on 27th May, 1999 that a sum of Rs. 47,752 found credited in the saving bank account of the assessee was received by a gift from one Smt. Gurdev Kaur, a close family relative/friend. It was submitted that Smt. Gurdev Kaur was produced in person before the AO, who after making certain verbal inquiries, asked her to leave. Accordingly, the assessee was under the impression that the necessary explanation has been furnished to the satisfaction of the AO. It was further submitted by the assessee that the amount was received by him on the occasion of marriage of his daughter and during that period even Remittance in Foreign Exchange (Immunities) Scheme, 1991 (for short ‘Scheme, 1991’) was in force. It was further pleaded that the assessee had received certain other gifts from some persons during the subsequent year, the additions made on that account were (sic–be) deleted by the CIT(A).
4. On inquiry from the then AO, it was found that the plea of the assessee that Smt. Gurdev Kaur was produced before the AO at the relevant time was found to be incorrect. While considering the plea of the assessee, it was found by the CIT(A) that the plea of Smt. Gurdev Kaur having been produced before the AO was patently falsified from the fact that in the written submissions dt. 2nd Jan., 1997 filed just before the assessment on 28th Feb., 1997, the plea raised by the assessee was that the details of foreign remittance as per the bank account will be furnished. Thereafter, there is nothing on record about any further information having been submitted by the assessee. There is not even a mention in the assessment record or even in the statement of facts in the memo of appeal to show that Smt. Gurdev Kaur was ever produced before the AO. Alleged affidavit dt. 11th Feb., 1997 which is stated to have been filed before the AO was in fact filed in original in the course of appellateproceedings. The same is the position with regard to certificate dt. 18th Jan., 1997 from the bank which was also never produced before the AO. Even the plea raised by the assessee regarding immunities in terms of Scheme, 1991 was also found to be without merit, for the reason that the procedure laid down therein for claiming immunity was not followed. As the assessee failed to discharge the burden, the additions made by the AO were upheld in appeal.
5. During the course of appellate proceeding, it was found by the CIT(A) that though the AO had examined the genuineness of impugned gift of Rs. 47,752 dt. 3rd April, 1992 but had failed to examine the genuineness of the eight other entries in the same account. Thereafter, a show-cause notice was issued seeking explanation thereof. In response to the show-cause notice, the assessee submitted as under : “As regards the various small amounts are concerned, they are on accounts of small gifts on the occasions of marriage in the family. In fact some of the gifts represents a token amount of Shaguns on this happy occasions from the relatives and close family friends residing abroad. The necessary confirmation in this respect are enclosed herewith for your kind consideration. That it is absolutely incorrect that the assessee failed to give any evidence before the AO during the course of the assessment proceedings. The calculation of peak amount is also incorrect in this case. That more so, some of the gifts were received in the name of Smt. Raman Rani.”
6. As is evident from the above explanation, the only plea raised by the assessee was that these gifts were received on the occasion of marriage in the family as Shaguns or other happy occasions from the relatives and close family friends residing abroad. The explanation and evidence were furnished only to the extent of three drafts for Rs. 6,000, 12,000 and Rs. 10,000, dt. 12th March, 1992, 14th April, 1992 and 3rd March, 1992, respectively, whereas for the balance five entries, there was no explanation whatsoever.
7. The assessee could not establish that there was any marriage or any function in the family during the period when the gifts were stated to have been received by him to justify the deposits. Accordingly, the plea of the assessee regarding gifts received from the alleged friends and relatives was found to be false and the additions were made accordingly, in the income of the assessee. Against the impugned additions, the assessee went in appeal before the Tribunal. There the plea of the assessee was that Smt. Gurdev Kaur was assessee’s paternal aunt (father’s sister) who is settled in Australia and the gifts were received on the occasion of marriage of assessee’s daughter which took place subsequently and the plea regarding immunity under Scheme, 1991 was also reiterated.
8. The Tribunal did not find any merit in the pleas raised by the assessee, which were same as raised before the CIT(A) rather it was found that the claim of the assessee that Smt. Gurdev Kaur was his paternal aunt was found to be factually incorrect as even in her affidavit Smt. Gurdev Kaur mentioned the assessee as close family friend. The same was the position in the affidavit of the assessee where also it was not mentioned that the gifts were received from his ‘Bua’. It is further not borne out from the affidavit that the amount was being gifted on the occasion of the ensuing marriage of assessee’s daughter. The facts about the amount being gifted on the occasion of ensuing marriage of the assessee’s daughter was missing in both the affidavits. The assessee having failed to substantiate the genuineness of the transaction and the source of credit, the addition was upheld. Similarly, the plea regarding addition of a sum of Rs. 35,752 was also rejected. Keeping in view the fact that the marriage of the assessee’s daughter took place in June, 1992 and substantial amount which was stated to be received on the occasion of the marriage was received much later, before the Tribunal the assessee furnished fresh evidence which was not furnished before the authorities below. Considering the totality of circumstances and the facts on record, the addition on that account was upheld by the Tribunal.
9. The primary contention of the assessee is that the findings recorded by the authorities are perverse.Explanations furnished by the assessee regarding the occasion for receiving various gifts should have been believed. Even before this Court, the assessee has placed on record some affidavits to support his plea that the amount was remitted by certain persons from abroad on some family function claiming them to be his family relations. Neither the relation was mentioned nor occasion of the gifts.
10. While considering similar plea raised by the assessee, this Court in Harish Kumar Singal vs. Asstt. CIT (2005) 193 CTR (P&H) 265 : (2005) 276 ITR 355 (P&H) observed as under : “………..This Court while adjudicating an appeal under s. 260A of the Act is required to decide only substantial questions of law and shall interfere if it is shown that the finding of the Tribunal is either perverse, arbitrary or is based on no material or is contrary to any statutory provision. This Court cannot interfere with the order only on the ground that on a reappraisal of evidence, as an appellate forum, a different view can be taken. Learned counsel for the appellant, has not been able to show by referring to any material on record that the factum of gift from a non-resident Indian was ever disclosed in the returns filed by the assessee. Thus, we do not find any valid ground to interfere with the finding recorded by the Tribunal. None of the cases relied on by learned counsel for the appellant has got any parallel with the case before us. Therefore, the same cannot be made the basis for deleting the addition made by the AO which, as mentioned above, was upheld by the Tribunal.”
11. In the above matrix of facts, we find that findings of the Tribunal are in the nature of findings of fact giving rise to no question of law much less a substantial question of law. View taken by the Tribunal in the given facts is a possible view.
Accordingly, the appeal is dismissed.
[Citation : 290 ITR 300]
