Anil Kumar S. Gathani & Ors(HUF), Kolkata V. ITO, Ward-37(3), Kolkata, Kolkata

ITA 1131/KOL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4914 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 03-08-2012
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T.A NO.1131/KOL/2012 ASSESSMENT YEAR: 2002-03 ANIL KUMAR S. GATHANI & ORS. (HUF) VS. INCOME-TA X OFFICER, WD-37(3), KOLKATA (PAN: AABHG5869D) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 11.03.2016 DATE OF PRONOUNCEMENT: 16.03.2016 FOR THE APPELLANT: SHRI MANISH TIWARI, AR FOR THE RESPONDENT: SHRI SALLONG YADEN, JCIT, SR . DR ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXIV, KOLKATA VIDE APPEAL NO. 674/CIT(A)-XXIV/37(3)/09-10 DATED 30.04.2012. ASSES SMENT WAS FRAMED BY ITO, WD-37(3), KOLKATA U/S. 143(3)(II)/254 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2002-03 VIDE HIS ORDER DATED 29 .12.2009. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STA TED THAT THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF UNEXPLAINED GIFT AMOUNTING TO RS. 9 LACS RECEIVED FROM NINE DONORS I.E. RS. 1 LAC EACH ADDED BY AO U/S. 68 OF THE ACT. LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ADDITION W AS MADE AND CONFIRMED BY CIT(A) ONLY ON THE PREMISE THAT THE ASSESSEE FAILED TO PRODUCE ORIGINA L GIFT DEEDS AND ORIGINAL PAPERS RELATING TO GIFTS I.E. NAMES, ADDRESS AND ANY OTHER INFORMATION. ACC ORDING TO LD. COUNSEL, NOW HE HAS EVERY DOCUMENT WITH HIM TO PROVE THE IDENTITY OF THE DONO R, CAPACITY TO MAKE THE GIFT AND RELATIONSHIP. WE FIND FROM THE ASSESSMENT ORDER AND THE ORDER OF CIT(A) THAT IN THE ABSENCE OF THESE DOCUMENTS, THE ADDITION WAS MADE AND CONFIRMED BY F IRST APPELLATE AUTHORITY. THE RELEVANT FINDING OF CIT(A) IN PARA 2.3.3 READS AS UNDER: 2.3.3. THE SAME PRINCIPLE IS ALSO APPLICABLE IN THIS CASE. THE SURROUNDING CIRCUMSTANCES AND THE HUMAN PROBABILITIES DO NOT SUPPORT THE CASE OF THE APPELLANT. IN THE CIRCUMSTANCES OF THE CASE, THE GIFTS ARE QUITE UNUSUAL AND UNNATURAL. CONSIDERING THE FACT OF THE CASE, I AM OF THE OPINION THAT THE APPELLANT HAS FAILED TO PROVE THE IDENTITY OF THE D ONORS, THE FINANCIAL CAPACITY TO MAKE THE GIFT, HUMAN PROBABILITIES, THE RELATIONSHIP BETWEEN THE D ONOR AND THE DONE, THE OCCASION FOR MAKING GIFT AND THE EXISTENCE OF RECIPROCITY. IN VIEW OF THE A BOVE DISCUSSION, THE ADDITION OF RS.9,00,000/- MADE BY THE AO IS CONFIRMED. THESE GROUNDS OF APPE AL ARE DISMISSED. 2 ITA NO.1131/KOL/2012 ANIL KUMAR S. GATHANI & ORS. (HUF) AY 2002-03 ON THIS, LD. COUNSEL FOR THE ASSESSEE STATED THAT I N CASE THE ISSUE IS REMITTED BACK TO THE FILE OF THE AO IT COULD EXPLAIN THE GIFTS. ON QUERY FROM T HE BENCH, THE LD. SR. DR HAS NOT OBJECTED TO THE PROPOSAL OF REMITTING THE ISSUE BACK TO THE FIL E OF THE AO FOR DE NOVO DECIDING THE ISSUE OF GIFT. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND AS AGREED BY BOTH THE SIDES, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND REMIT THE I SSUE BACK TO THE FILE OF AO TO DECIDE AFTER TAKING INFORMATION FROM THE ASSESSEE IN RESPECT TO IDENTITY OF THESE PARTIES AND CAPACITY OF MAKING GIFT AND GENUINENESS OF TRANSACTION. IN TER M OF THE ABOVE, WE REMIT THIS ISSUE TO THE FILE OF THE AO AND APPEAL OF ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. 3. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.03.2016. SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16TH MARCH, 2016 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ANIL KUMAR S. GATHANI & ORS. (HUF), 22, RABINDRA SARANI, KOLKATA-700 013. 2. RESPONDENT ITO, WD-37(3), KOLKATA. 3. CIT(A) , KOLKATA 4. CIT , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .