I-T – Rs 60 lakhs gift to Mayawati – these gifts are made out of natural love and affection by donors – Element of reverence, veneration or personal esteem and faith all depend upon personal feelings and desire – Mayawati wins huge case in ITAT
NEW DELHI, DEC 27, 2007 :
The issue before the Tribunal is the gifts amounting to Rs. 12 lakhs in cash and Rs. 62 Lakhs in immovable property received by Mayavati. The donors had even borrowed money and made the gifts to her. The AO was not convinced but the CIT(A) was and Revenue is in appeal before the Tribunal. Assessee Mayavati is also before the Tribunal pleading Standard deduction of Rs. 30,000/-.
Why would totally unrelated persons want to donate such huge sums to Madam Mayawati? Out of natural love and affection borne out of her selfless service to the downtrodden!
The Tribunal recalled the undisputed facts as
(1) The assessee had, received five gifts during the year under consideration which were considered by the AO.
(2) Out of these three gifts were received in the form of cash, totalling to Rs. 13,00,000/- out of which the above gifts to the tune of Rs. 11,00,000/-have been accepted to be genuine by the AO.
(3) The third gift which was rejected by the AO, was received by the assessee from Sri Pankaj Jain. The main features relating to this gift are as under:
(a) The gift has been made through a/c payee cheque;
(b) The donor had confirmed the gift;
(c) The assessee had filed gift deed as well as the affidavit of the donor confirming the gift.
(d) The donor is assessed to tax. His statement was recorded both by the Addl. Director of Income-tax (Inv.) and the AO.
(e) The AO has not disputed the identity of the donor
(f) There is no material to show that the amount of Rs, 2,00,000/- gifted by this donor was the money given by the donee in any form at any time.
Gifts of two immovable properties:
(1) These properties have been purchased by the donors through registered sale-deeds;
(2) Donors have filed the gift deeds which are registered. At the time of registration of the gift deeds, stamp duty had been duly paid.
(3) Both of the donors are assessed to tax.
(4) The donors have confirmed the making of gift by filing affidavits before the AO.
(5) The donors have also filed evidence in the terms of photographs to show their intimacy with the donee.
(6) The AO has not doubted the identity of the donors
(7) The transactions of purchasing the property by the donors have not been treated to be sham transaction by the department.
(8) The transactions relating to transfer of the property through the gift to the donee have not been found to be benami or sham in law.
(9) The A.O. has not made any enquiries by examining the witnesses of the Registered Gift Deed.
On the above facts, the Tribunal observed that, sufficient evidence was adduced by the assessee before the AO. On going through the assessment order it appears that the AO while drawing adverse inference against the assessee in relation to these gifts was influenced by several other transactions of gift whereas he should have examined the genuineness and validity of these transaction independently on the facts and circumstances of such transactions. He has not recorded any finding to doubt the identity of the donors. He has not recorded any finding that the gifts were not made voluntarily or that the delivery of the possession of the properties gifted was not given to the donee, He has made absolutely no enquiries which would enable him to conclude that the transaction of gift were sham, false or not genuine. Thus, the validity of each gift remains unsustainable.
The Tribunal did not find anything wrong with the gifts and observed,
++ The Assessing Officer has not only conveniently ignored the relevant documentary evidences produced by the assessee, but has based his conclusions on extraneous considerations.
++ The submission of the assessee that while deciding the genuineness of the transaction of purchases of the property and subsequent gift of the same to the assessee is concerned, the fact of the donor having incurred loan has no relevance. We find much force in this submission.
++ It may be pointed out that the Assessing Officer did not conduct any independent inquiry to controvert these statements and to support his conclusion that the gifts were arranged by the assessee. There is no direct or indirect documentary, oral or circumstantial evidence to show that the investment of any kind before or after the gifts was made by the assessee for obtaining the gifts. The Assessing Officer has not been able to bring out any tangible material on record to demonstrate the fact that the gifts were made by the donors out of some ulterior motive or design or for some benefit or consideration. The Assessing Officer has not been able to show that the gifts were not voluntary or that the same were obtained by the donee, by exercising some undue influence, coercion or temptation. The fact that these gifts are made out of natural love and affection by the donors thus remains unquestioned and uncontroverted.
++ The basic elements that the gifts were without any consideration, it were made voluntarily and out of natural love and affection have not been demolished by the Assessing Officer. The aspect of voluntariness depends upon the mental state. The element of love and affection relate to emotions of a man. One may be impelled by his conscience or may be moved by emotions to part away with his wealth or property and to give the same to a particular person for whom he has developed love and affection. Such a desire can be developed at any time and on any ground. The factors which weigh for executing such desire are best known to the donor. It is not easy to make probe into such human psychology or human emotions which one may carry at the time of making such sacrifices. It h
as been stated by some of the donors that the assessee was engaged in the welfare of downtrodden and dalit in the society. May be the prompting motive were such appreciable deeds of social welfare of the problem of the weaker sections of the society, which made the donors to make gifts to her. Smt Veena Jain has gone on record to say that the assessee was making a Sangrahalya and therefore she gifted the house property to enable her to achieve her mission. The Assessing Officer has only gone by surmises and conjectures and guess work in drawing his inference and in recording his conclusions. In the absence of any cogent material to support his findings, the same being based on conjectures and surmises cannot be upheld.
++ The assessing officer has also highlighted the fact that there is no relationship between the donor and donee and therefore the genuineness of the transaction of gifts are not proved. Here it may be pointed out that a gift may be made to a stranger. Section 123 of T.P. Act referenced which has been made above does not require that gift should be made to a relation only. Thus the Ld. A.O. has taken an incorrect view of law.
++ The A.O. has highlighted another point which is regarding lack of “occasion” for making gifts. He has observed that there was no occasion for the donors to make the gifts to the donee. For giving gift no specific occasion is required, although the gifts are normally given on many occasions like birthday, marriage anniversary and other events. However, gift may be given at any time as per the wishes of the donor and the donee. Thus it can not be said that if a gift is not made on particular occasions on any event then such gift is not a genuine gift. Hence in our view occasion is not a relevant criteria.
Conditions for gifts:
It is a settled legal position that for claiming the benefits of gifts, the assessee is required to satisfy the following conditions :
1. Identity of the donors.
2. Creditworthiness of the donors.
3. Genuineness of the transactions of the gifts.
1. identity of the donors: In the instant case all the three donors appeared before the A.O. and their statements were recorded. Two of them appeared before the A.D.I. (Inv). All the three are assessed to tax. Donors appeared before three different authorities which confirms their identity.
Keeping in view the totality of facts we are of the considered opinion that identity of the donors stands fully proved and established.
2. Creditworthiness of the donors : All the three donors who made the gifts are men of means. They belong to rich background and own huge moveable and immovable properties. Each of them had net worth more than of a crore. The department has not brought out any adverse material against their creditworthiness.
3. Genuineness of the transaction of gifts: Once the identity of the donor is established and his capacity is also proved then the only question to be seen is as to whether the transactions of gift was genuine or not. For examining this aspect, the conduct of parties, that is the donor and the donee, and the appreciation of attending circumstances becomes necessary. The conduct can be seen from various angles. If the donee makes his or her own investments for arranging the gift or purchasing the gift or directly or indirectly manages such gifts then such conduct will definitely render the transactions as a colourable one or of dubious nature. Similarly, if the donor makes a gift in lieu of some valuable consideration or for any tangible benefit or for past or future consideration, in terms of money or monies worth, then such gift may not be treated to be genuine. Likewise, if the circumstances under which the gift is being made show that the gift was made to cover up or conceal other transactions or to convert black money into white money by taking recourse to such mode then the transaction of gift may be treated to be non-genuine.
The A.O. has not collected any evidence to disprove the genuineness of the gift by bringing material on record to show that the gifts were arranged by the assessee from her resources or that donors made gift in lieu of some tangible benefit derived by them from the assessee by misusing her office of public servant. On the contrary the assessee adduced sufficient evidence to show that the gifts were made voluntarily by the donors without any consideration and out of natural love and affection. All the three donors have repeatedly confirmed the fact that the properties were gifted by them to the donee out of natural love and affection. The aspect of voluntarily giving of gifts has been fully proved in all the three cases. The delivery of possession was given at the time of making gift. The gifts of immovable property in the instant case prove the genuineness of the transactions beyond any shadow of doubt because of the procedure adopted for transferring such properties by way of gift through registered deeds.
It is not uncommon that people give donations and charities to persons in whom they place faith or for whom they have limitless regards. Similarly gifts are also made of invaluable properties for furtherance of noble objects executed by personages of high eminence. As stated by the donors in their statements recorded by the A.O., the donee is a public and political figure who was working for the welfare of the downtrodden in a missionary manner and
on account of this social work, the donors decided to part away with their properties by giving the same as gift to her. The element of reverence, veneration or personal esteem and faith all depend upon personal feelings and desire. No probe can easily be made into such aspects of human psychology and the best persons to explain such feelings and desires are those who advance and execute the same.
The Tribunal dismissed her appeal claiming standard deduction as there is no relationship of “Employer” and “Employee” existing in the facts of the recent case.
Otherwise the gifts are okay with the Tribunal.