The Income tax Officer, Panaji V. Smt. Hasha Momte Menezes, Panaji

ITA 115/PAN/2013

• Counselvise Citation: 11524114 RSA 2013
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANJUL BARTHAKUR
• Assessee Lawyers: RAGHU K PIKALE
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER IT A NO. 114 /PNJ/201 3 : (ASST. YEAR : 2008 - 09) INCOME TAX OFFICER, WARD 2(2), PANAJI (APPELLANT) VS. SHRI XAVIER VENCENT SAVIO MENEZES H.NO. 843, KOMPAS DISTRIBUTORS, KADAMBA BUS DEPOT ROAD, ALTO PORVORIM, BARDEZ, GOA PAN : ADRPM4934H (RESPONDENT) IT A NO. 115 /PNJ/201 3 : (ASST. YEAR : 2008 - 09) INCOME TAX OFFICER, WARD 2(2), PANAJI (APPELLANT) VS. SMT. HASHA MONTE MENEZES H.NO. 843, KOMPAS DISTRIBUTORS, KADAMBA BUS DEPOT ROAD, ALTO PORVORIM, BARDEZ, GOA PAN : AGGPM7392B (RESPONDENT) REVENUE BY : BANJUL BARTHAKUR ASSESSEE BY : RAGHU K. PIKALE DATE OF HEARING : 03/07/2013 DATE OF PRONOUNCEMENT : 12 /07/2013 O R D E R PER D.T. GARASIA : 1. BOTH THESE APPEALS ARE FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DT. 28.3.2013 FOR A.Y. 2008 - 09 BY TAKING THE FOLLOWING COMMON GROUND : 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN ALLOWING THE UNSECURED LOANS OF RS.34,49,000/ - . BOTH THE APPEALS RELATE TO HUSBAND AND WIFE . THEREFORE, AS PER PROVISIONS OF SECTION 5A OF THE INCOME TAX ACT , WE DISPOSE OFF THESE APPEALS TOGETHER BY THIS COMMON ORDER. 2 ITA NOS. 114&115/PNJ/2013 (ASST. YEAR : 2008 - 09) 2. THE SHORT FACTS OF THE CASE ARE AS UNDER : 2.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS SHOWN THE FOLLOWING AMOUNT AS UNSECURED LOAN AND GIFTS : I. UNSECURED LOANS : 1. SHRI JOSEPH C. VIEGAS (FOREIGN NATIONAL) RS.29,49,000/ - 2. LYNETTE FERNANDES RS. 2,00,000/ - 3. NEOMI BARNETO RS. 2,00,000/ - 4. BALANCHE FERNANDEX RS. 1,00,000/ - 5. SMT. EMILY MENEZES RS. 2,81,512/ - ------ ---------------------- TOTAL RS.37,30,512/ - --------- ------------------- II. GIFTS: 1. SMT. EMILY MENEZES RS.10,44,000/ - 2. MONICA CRUZ RS. 90,000/ - ---------------------------- RS.11,34,000/ - --------- ------------------- TO VERIFY THE GENUINENESS OF THESE UNSECURED LOANS AND GIFTS, THE ASSESSEE WAS ASKED TO PROVE WITH EVIDENCE WITH CREDITWORTHINESS OF THE UNSECURED LOANS AND GIFTS. THE ASSESSEE WAS ASKED TO FURNISH COPY OF THE BANK S TATEMENT OF THESE PERSONS BUT THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF THESE TRANSACTIONS AND CREDITWORTHINESS OF THE SAID PARTIES. THE ASSESSEE, DESPITE REMINDERS, COULD NOT FURNISH ANY INFORMATION INDICATING THE GENUINENESS OF THESE TRANSACTIONS AND CREDITWORTHINESS/CAPACITY OF THE SAID PARTIES TO ADVANCE SUCH HUGE AMOUNT. THEREFORE, ADDITION U/S 68 WAS MADE. THE AO HAS MADE THE ADDITION OF RS.48,64,521/ - U/S 68 - 50% TO THE SPOUSE U/S 5A I.E. RS.24,32,256/ - . 2.2 BOTH THE ASSESSEES, HUSBAND AND WIFE, HAVE FILED APPEALS BEFORE CIT(A) AND CIT(A) HAS BY COMMON ORDER DELETED THE ADDITION BY OBSERVING AS UNDER : 5.4 FROM THE SUBMISSION OF THE APPELLANT, IT CAN BE SEEN THAT THERE IS NO DISPUTE ABOUT THE FACT THAT MR. JOSEPH VIEGAS IS A FOREIGN NATIONAL AND STAYS IN CANADA AND THEREFORE IT WOULD NOT BE POSSIBLE FOR THE ASSESSEE TO MAKE HIM ATTEND IN INDIA. THE ASSESSEE ALSO SUBMITTED CERTIFICATES FROM HDFC BANK AND COPY OF BANK ACCOUNT OF MR. JOSEPH VIEGAS OF CANADA TRUST WHERE THE SE TRANSACTIONS 3 ITA NOS. 114&115/PNJ/2013 (ASST. YEAR : 2008 - 09) CAN BE SEEN. THIS IS ALSO A FACT THAT MR. JOSEPH VIEGAS IS A CLOSE RELATIVE OF THE APPELLANT. IN VIEW OF THE ABOVE MENTIONED FACTS, IN MY OPINION, THE APPELLANT HAS GIVEN ENOUGH DOCUMENTARY EVIDENCE TO PROVE THE GENUINENESS OF THE TRANSAC TION. THE A.O IS DIRECTED TO DELETE THE ADDITION OF RS.29,49,000/ - MADE U/S 68 IN THE CASE OF MR. JOSEPH C. VEIGAS. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE CIT( A) HAS HELD THAT THE ASSESSEE HAS TAKEN UNSECURED LOAN FROM MR. JOSEPH VIEGAS, A FOREIGN NATIONAL. THE ASSESSEE COULD NOT PRODUCE THE CREDIT OR. HE IS A FOREIGN NATIONAL. BUT THE ASSESSEE HAS SUBMITTED THE CERTIFICATE ISSUED BY HDFC BANK, MUMBAI WHEREIN NAME OF THE REMITTER, MR. JOSEPH VIEGAS AND NAME OF THE BENEFICIARY, THE ASSESSEE, IS SHOWN. THEREFORE, CIT(A) HAS DELETED THE ADDITION. THEREFORE, OUR INTERFERENCE IS NOT REQUIRED. 3. IN THE RESULT, BOTH THE DEPARTMENTAL APPEALS ARE DISMISSED. 4. OR DER PRONOUNCED IN THE OPEN COURT ON 12 / 7 /2013. SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER SD/ - (D.T.GARASIA) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 12 / 7 / 2013 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT, PANAJI (4) CIT(A), PANAJI (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER SR. P RIVATE S ECRETARY ITAT, PANAJI, GOA