Partha Majumder, L/H of lt.Sadhan Majumder, Kolkata V. CIT, Kolkata-XVII, Kolkata

ITA 1088/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83169 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 20-07-2012
• Court: TRIBUNAL
• Department Lawyers: S CHATTOPADHYAY
• Assessee Lawyers: K M ROY
• Keywords: Unexplained cash credit; Gift; Assessment record
• Section: 147; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [BEFORE HON BLE SRI MAHAVIR SINGH, JM& HON BLE SRI SHAMIM YAHYA , A M ] ITA NO.1088 /KOL/2012 ASSESSMENT YEAR : 2005 - 06 ( A PPELLANT ) (RESPONDENT) PARTHA MA JUMDER - VS - C.I.T., KOL.XVII, L/H OF SADHAN MAJUMDER, KOLKATA KOLKATA (PAN: AFAPM 7014 H) FOR THE APPELLAN T SHRI K.M.ROY, FCA FOR THE RESPONDENT SMT.S.CHATTOPADHYAY, JCIT DATE OF HEARING : 11 .11 .2014 DATE OF PRONOUNCE MENT : 13.11.2014 ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF L D. C.I.T - XVII, KOLKATA PASSED U/S 263 OF THE I.T.ACT DT. 14.05 .2012 AND PERTAIN S TO ASSESSMENT YEAR 2005 - 06. 2. THE ISSUE RAISED IN THIS APPEAL IS TH AT ORDER PASSED U/S 263 OF THE ACT IS NOT SUSTAINABLE. 3. IN THIS CASE THE LD. CIT OBSERVED AS UNDER : - PERUSAL OF THE DOCUMENTS FOUND IN THE ASSESSMENT RECORD RELATED TO F.Y. 2004 - 05 RELEVANT TO THE A.Y. 2005 - 06, IT REVEALS THAT LD.SADHAN MAJUMDER, THE ASSESSEE CLAIMED TO HAVE RECEIVED CASH GIFTS OF RS.2,15,600/ - AND RS.3,00,000/ - ON 29.03.2005 AND 31.03.2005 RESPECTIVELY. DONORS SRI TAPAN GHOSH AND SMT. TANIMA GHOSH CLAIMED TO HAVE WITHDRAWN CASH FROM THEIR NRI A/C. ON VERIFICATION OF THE DONORS A/C, M AINTAINED WITH SBI, NRI BRANCH, KOLKATA, DURING THE COURSE OF ASSESSMENT IT APPEARED THAT NO SUCH CASH WAS WITHDREW FROM THEIR A/C. THE ASSESSING OFFICER HAD NOT MADE ANY ADDITION ON ACCOUNT OF THESE UNEXPLAINED CASH CREDIT IN THE BANK ACCOUNT OF LT.SADHAN MJUMDER, THE ASSESSEE. IN VIEW OF THE ABOVE, THE ASSESSMENT IS CONSIDERED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGLY, A SHOW CAUSE LETTER INITIATING PROCEEDINGS U/S 26 3 OF THE I.T.ACT, 1961, DATED 02/05/2012 WAS ISSUED AND SERVED ON THE ASSESSEE. ITA.NO.1088/K/2012 PARTHA MAJUMDER,L/H OF SADHAN MAJUMDER A.YR.2005 - 06 2 3. THE ASSESSEE S COUNSEL IN RESPONSE SUBMITTED NECESSARY EVIDENCES AND DOCUMENTS IN CONNECTION WITH THE GIFT WAS DULY SUBMITTED IN THE CASE OF DIPALI MAJUMDER, WHO IS THE WIFE OF LT.SADHAN MAJUMDER. IT WAS SUBMITTED THAT NO ADDITION W AS MADE BY THE AO IN THAT CASE. HENCE IT WAS PRAYED THAT THER E WAS NO MISTAKE IN THE FACTS OR LAW AND IT CANNOT BE PRESUMED THAT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE FO R INVOKING SECTION 263. 4. THE LD. CIT DID NOT ACCEPT THE ABOVE SUBMISSIONS. HE CONCLUDED AS UNDER : - I HAVE PERUSED THE DOCUMENTS AVAILABLE IN THE ASSESSMENT RECORDS AND EXPLANATION FURNISHED BY THE LD. A/R OF THE ASSESSEE. IT TRANSPIRES FROM THE RECORDS THAT THE ALLEGED CASH GIFT OF RS.2,15,000/ - (TAKEN ON 29. 03.2005) AND RS.3,00,000/ - (TAKEN ON 31.03.2005) PURPORTEDLY RECEIVED BY THE ASSESSEE FROM THE DONORS SRI TAPAN GHOSH AND SMT.TANIMA GHOSH, WERE NOT EXAMINED BY THE A.O. WHILE COMPLETING THE ASSESSMENT IN QUESTION. I, THEREFORE, SET ASIDE THE ASSESSMENT WI TH THE DIRECTION TO EXAMINE THE ISSUE OF CASH GIFT AND ACCORDINGLY COMPLETE THE ASSESSMENT. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT ASSESSMENT IN THIS CASE WAS PASSED U/S 147/143(3) OF THE ACT ON 27.12.2010 . A S AGAINST THE RET URNED INCOME OF RS.3,49,590/ - , A DDITION WAS MADE AMOUNTING TO RS.5,95,456/ - AND THE TOTAL INCOME WAS ASSESSED AT RS.9,45,046/ - . WE FIND THAT IN THE 263 ORDER THE LD. CIT HAS OBSERVED THAT T HE DONORS OF GIFT IN THIS CASE SHRI TAPAN GHOSH AND SMT.TANIMA GHOSH CLAIMED TO HAVE WI THDRAWN CASH FROM THE NRI A/C. THAT O N VERIFICATION OF THE DONORS A/C WITH SBI, NRI BRANCH, KOLKATA DURING THE COURSE OF ASSESSMENT IT APPEARED THAT NO SUCH CASH WAS WIT HDRAWN FROM THEIR ACCOUNT. THAT T HE AO HAD NOT MADE ANY ADDITION ON ACCOUNT OF THIS UNEXPLAINED CASH CREDIT IN THE BANK ACCOUNT OF LATE SHRI S.MAJUMDER, THE ASSESSEE. 5.1. FROM THE ABOVE IT TRANSPIRES THAT THE ISSUE OF GIFTS WAS ENQUIRED BY THE AO. IF UP ON MAKING NECESSARY ENQUIRY AO DID NOT FIND THE GIFTS AS BOGUS, IT WAS NOT COMPULSORY ON THE PART OF THE AO TO MAKE THE ADDITION. HENCE THE LD. CIT S EXERCISE OF JURISDICTION U/S 26 3 OF THE ACT IS NOT SUSTAINABLE , IF THERE ARE TWO VIEWS POSSIBLE. JUST BECA USE THE LD. CIT IS OF DIFFERENT OPINION HE CANNOT INVOKE SECTION 263 OF THE ITA.NO.1088/K/2012 PARTHA MAJUMDER,L/H OF SADHAN MAJUMDER A.YR.2005 - 06 3 ACT. FURTHERMORE FROM WHERE LD.CIT GOT THE INFORMATION THAT ON VERIFICATION OF DONOR A/C IT WAS FOUND THAT NO CASH WAS WITHDRAWN FROM THEIR ACCOUNT IS NOT CLEAR. IN THIS REGARD WE ALSO REFER TO THE LD. DR S SUBMISSION THAT SUBSEQUENT TO THE ASSESSMENT OF THE ASSESSEE REVENUE CAME IN THE POSSESSION OF CERTAIN INFORMATION PERTAINING TO THE DONORS SHRI TAPAN GHOSH AND SMT. TANIMA GHOSH. IF THIS IS THE CASE AND THE REVENUE HAS COME INTO POSSESSION OF CERTAIN FURTHER INFORMATION THEN IT WOULD HAVE BEEN A CASE FOR REOPENING U/S 147 AND NOT EXERCISE OF JURISDICTION U/S 263 OF THE ACT. 5.2. HENCE IN THE BACKGROUND OF AFORESAID DISCUSSION WE ARE OF THE OPINION THAT ORDER PASSED U/S 263 OF TH E ACT BY THE LD. CIT IS NOT SUSTAINABLE. ACCORDINGLY WE SET ASIDE THE ORDER PASSED U/S 263 OF THE ACT. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. O RDER PRONOUNCE D IN THE COURT ON 1 3.11.2014. SD/ - SD/ - [ MAHAVIR SINGH ] [SHA MIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 13.11.2014 R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . PARTHA MAJUMDER, L/H OF SADHAN MAJUMDER, VIP ROAD, TEGHORIA, KOLKATA - 700059. 2 C.I.T., KOLKATA - XVII, KOLKATA 3 . CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES ITA.NO.1088/K/2012 PARTHA MAJUMDER,L/H OF SADHAN MAJUMDER A.YR.2005 - 06 4