ACIT Vs. SHASHI PURI

JUDGEMENT

(1.) THESE are two appeals filed by Revenue against separate orders of Ld. CIT(A) both dated 06.04.2011. I.T.A. No. 23273/Del/2011 is filed by Revenue against Smt. Shashi Puri whereas I.T.A. No. 3379/Del/2011 is against Smt. Shashi Puri as legal heir of her deceased husband Shri Vikrant Puri. The common issue involved in the present appeals is that assessee and her husband had received certain gifts from their son Mr. Mohit Puri who had sent these gifts from Dubai. The A.O. made additions holding that genuineness and creditworthiness of gifts was not proved whereas Ld. CIT(A) allowed relief to the assessee and during appellate proceedings also, accepted additional evidence. The husband of assessee in the meanwhile had expired, therefore, both of assessment stage and at appellate stage the assessee was made a party as legal heir of her deceased husband. In view of the above in both appeals assessee is a respondent one in her individual capacity and other as a legal heir. Both these appeals were heard together and, therefore, a common and consolidated order is being passed. There are two common grounds of appeal; Ground No. 1 relates to merits of the case and Ground No. 2 relates to violation of provisions of Rule 46A. Vide interim Tribunal order dated 28.11.2014 ground No. 2 of appeal has already been disposed off which relates to violation of Rule 46A. The said ground of appeal has been decided against revenue and the appeal on merits was finally heard on 17.12.2014.

(2.) AT the outset, Ld. D.R. submitted that in the interim order passed on 28.11.2014, the Hon'ble Tribunal has ignored the submissions filed by Revenue and in this respect, he filed a single page note on the arguments made originally. In the note, Ld. D.R. submitted that as per Hon'ble Jurisdictional High Court in the case of Manish Buildwell Pvt. Lt., Ld. CIT(A) was required to afford two opportunities to the A.O. i.e. one at the time of acceptance of additional evidence by inviting his objections for accepting the additional evidence and the second, after CIT(A) admits the same for his comments on merits of such additional evidence. It was further submitted that case laws relied by ITAT in the case of DDIT v. Human Care Charitable Trust, was not applicable as it was given prior to the judgment of Hon'ble Jurisdictional High Court and hence, was to be ignored. Therefore, in view of the above, Ld. D.R. made a request to take into account these facts while passing final order. It was also submitted that passing of such final order will not amount to review of earlier order.

(3.) IT was submitted that mere receipt of amount by cheques was not sufficient to establish genuineness of gift. It was submitted that the gifts were made in the form of cheques of Rs. 5 lacs each and the cheque numbers issued by the donor were in continuity instead of issuing a consolidated cheque and donor had issued cheques for an amount of Rs. 5 lacs each probably to avoid scrutiny of officials by avoiding issue of a consolidated cheque of total amount. The behavior of donor in issuing cheques of Rs. 5 lacs each establishes that something was wrong. It was submitted that Hon'ble Delhi High Court in its judgment in the case of International Taxation v. Alcatel USA Inc. The Hon'ble Court has quoted in Esthusi Aswathah v. CIT : 66 ITR 478 (S.C.) and has said that in income tax proceedings, conclusive proof was not required and tribunal may act upon probabilities or presumptions and therefore, it was submitted that on the face of it amounts sent by Mr. Mohit Puri was not a gift as the genuineness was not established as there were many inconsistencies in the documents in support of gifts. Ld. D.R. took us to page 1 of the paper book and submitted that it was undated and there was no mention that the same was filed before the A.O. and the copy was not a true copy. As regards paper book page 2 and 3 which was a copy of memorandum of gift, Ld. D.R. argued that it was not reliable as the signatures of donor Mohit Puri was at a variance with the signatures on the passport of donor which was placed at paper book page 37. It was further submitted that it appears that deed was signed by some other person other than donor as impression of signature of left hand side was not matching with the signatures in the copy available on record of A.O. Referring to page 5 of the paper book, Ld. D.R. submitted that date mentioned as 08.12.2009 is not there in the copy available in the record. Similarly page 14 was referred and it was submitted that the document does not seem to be true copy of as in the copy available in the assessment record there are signatures whereas signatures are not there in the copy available in the paper book. Similarly, paper book pages 6 to 23, were referred and it was submitted that signatures on employment agreement were also varying with the signatures as found in the passport a copy of which was placed at paper book 37. Similarly, it was submitted that paper book pages 31 -36 showing copy of corporate agreement with Smart Impression need to be rejected as signatures of Mohit Puri on this document are at variance with signatures on the passport. Regarding paper book pages 26 -28 it was submitted that these need to be ignored as these relate to Mr. Vikrant Puri and not to assessee. Further arguing Ld. D.R. submitted that in fact the gifts were received by assessee who had advanced amounts to Mr. Vikrant Puri another son of Mrs. Shashi Puri who was engaged in the Hawala Racket. Ld. D.R. submitted that in fact Mr. Vikrant Puri must have first transferred his ill gotten money abroad and then through chain of transactions had received back the same from Dubai in the form of gift by his brother to mother and then to himself as loans. It was submitted that all these circumstances point out that the gifts were not genuine. Further arguing Ld. D.R. submitted that gift deeds were neither registered nor witnessed. It was also submitted that creditworthiness of donor was also not proved as he had just gone to Dubai and has claimed to have earned a huge amount for which there was no proper evidence. It was submitted that in the copy of employment agreement of Mr. Mohit Puri donor, there are many mistakes which have already been pointed out including mismatching of signatures of Mohit Puri on the employment agreement and therefore, the same cannot be relied upon. Therefore, creditworthiness cannot be accepted on the basis of such documents. Therefore, it was submitted that considering the peculiar circumstances of the case, it would be logical for the tribunal to infer that the impugned amount does not represent genuine gifts. Reliance in this respect was placed on the case law of Simati Dayal : 214 ITR 801 for the proposition that to decide a matter surrounding circumstances and human probabilities should be kept in mind. It was submitted that the case law relied by Ld. CIT(A) of Suresh Kakkar, is not applicable as in that case, Hon' High Court had dismissed the appeal of Revenue holding that no question of law arise and such decisions cannot have precedential value as held by Hon'ble Supreme Court in the case of State of Punjab v. Surinder Kumar : 194 ITR 434.