Shri Rajesh Sarda, Kolkata V. ITO, Ward - 36(1), Kolkata, Kolkata

ITA 118/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9391 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 25-01-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 19-01-2010
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Keywords: Gift; Income from undisclosed sources; Set aside
• Section: 68

Judgement Text

1 , SMC , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- SMC , KOLKATA [ . .. . . .. . , , , , ] BEFORE SHRI C.D. RAO, ACCOUNTANT MEMBER / ITA NO. 118 (KOL) OF 2010 !' #$ / ASSESSMENT YEAR 2005-06 SHRI RAJESH SARDA , KOLKATA. (PAN-ALKPS1353B) INCOME-TAX OFFICER, WARD-36(1), KOLKATA.. ('( / APPELLANT ) - ! - - VERSUS -. (+,'(/ RESPONDENT ) '( - . / FOR THE APPELLANT: / SRI RAVI TULSIYAN +,'( - . / FOR THE RESPONDENT: / SRI K.K.TRIPATHI / / ORDER ( . .. . . .. . ), (C.D. RAO), ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE OR DER DATED 16.11.2009 OF LD. C.I.T.(A)-XX, KOLKATA PERTAINING TO ASSESSMENT YEAR 2005-06. THE ASSESSEE HAS RAISED SEVERAL GROUNDS WHICH ARE ALL DIRECTED AGAINST CONF IRMING THE ADDITION OF RS.1 LAKH U/S. 68 OF THE ACT BY THE LD. C.I.T.(A), BEING THE GIFT RECEIVED FROM SMT. BINA BHATTER. 2. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE INCOME OF HIS MINOR SON, MOHIT SARDA, IS CLUBBED AN D ASSESSED IN HIS HAND. DURING THE YEAR UNDER APPEAL, THE MINOR SON OF THE ASSESSEE HA D RECEIVED GIFT OF RS.1 LAKH FROM SMT. BINA BHATTER BY ACCOUNT PAYEE CHEQUE, WHICH WA S REFLECTED IN THE BANK STATEMENT. THE SAID DONOR WAS ALSO ASSESSED TO INCOME-TAX AND THE GIFT WAS DULY RECORDED IN HER BALANCE SHEET. IN RESPONSE TO NOTICE U/S. 131, THE DONOR APPEARED BEFORE THE A.O. AND ACCORDING TO THE A.O., SHE DENIED HAVING GIVEN ANY GIFT TO THE MINOR SON OF THE ASSESSEE. THE A.O., THEREFORE, HELD THAT THE ASSESSEE FAILED TO ESTABLISH THE CREDITWORTHINESS AND GENUINENESS OF THE GIFT AND THUS ADDED THE SAID AMO UNT OF RS. 1 LAKH TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. 2 3. ON APPEAL BEFEFORE THE LD. C.I.T.(A), THE ASSES SEE SUBMITTED THAT ALTHOUGH THE A.O. CLAIMED THAT SMT. BINA BHATTER DENIED HAVING G IVEN ANY GIFT TO MOHIT SARDA, BUT COPY OF HER STATEMENT WAS NEVER PROVIDED TO THE ASS ESSEE. FURTHER, THE A.O. THE A.O. FAILED TO REBUT THE DOCUMENTARY EVIDENCES FILED BEF ORE HIM IN SUPPORT OF THE SAID GIFT WITHOUT BRING ANY ADVERSE MATERIAL ON RECORD. THE L D. C.I.T.(A), HOWEVER, CONFIRMED THE ACTION OF THE A.O. IN HAVING MADE ADDITION OF RS.1 LAKH U/S. 68 OF THE ACT, BY OBSERVING AS UNDER :- 6. I HAVE PERUSED THE ASSESSMENT ORDER. I HAVE ALS O CONSIDERED THE SUBMISSION OF THE APPELLANT. THE DONORS ARE ASSESSED TO INCOME TA X AND COPIES OF THEIR I.T ACKNOWLEDGEMENTS WERE FILED BEFORE THE AO. THE GIFT S WERE RECEIVED BY ACCOUNT PAYEE CHEQUES AND ARE DULY REFLECTED IN THE BANK AC COUNTS OF THE DONORS. THE COPIES OF GIFT DEEDS WERE FILED. ALL NECESSARY SUPPORTIVE DOCUMENTS WERE ALSO FILED. IN VIEW OF THE ABOVE, THE APPELLANT DISCHARGED HIS INITIAL ONUS OF ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF THE DONORS AND ALSO THE GENUINE NESS OF THE TRANSACTIONS. BUT THEN, THE AO EXAMINED ONE DONOR SMT BINA BHATTER, W HO HAS DENIED HAVING GIVEN ANY GIFT TO MINOR SON OF THE APPELLANT. THE AO HAS CLEARLY MENTIONED IN THE ASSESSMENT ORDER THAT A COPY OF THE STATEMENT WAS P ROVIDED TO THE APPELLANT. THE AO HAS ALSO MENTIONED THAT THE STATEMENT WAS RECORDED IN THE PRESENCE OF THE LD. AR OF THE APPELLANT AND THAT HE WAS OFFERED AN OPPORTUNIT Y BUT DECLINED TO CROSS-EXAMINE THE WITNESS. IN VIEW OF THE ABOVE, I AM OF THE OPIN ION THAT THE AO HAS BROUGHT POSITIVE MATERIAL ON RECORD TO SHOW THAT THE GIFT I S NOT GENUINE. THE ADDITION OF GIFT OF RS.1,00,000/- FROM SMT BINA BHATTER CALLS FOR NO INTERFERENCE AND IS THEREFORE CONFIRMED. 4. I HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE ME. WITHOUT GOING INTO THE CONTROVERSY WHETHER THE ASSESSEE WAS MADE AVAILABLE WITH A COPY OF THE STATEMENT REC ORDED FROM SMT. BINA BHATTER AND STATEMENT WAS RECORDED IN PRESENCE OF THE LD. A.R. OF THE ASSESSEE AND HE OFFERED NO EXPLANATION, IN MY OPINION, IT WOULD MEET THE ENDS OF JUSTICE IF THE MATTER IS SET ASIDE TO THE FILE OF THE A.O. ACCORDINGLY, I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MATTER BACK TO THE FILE OF TH E A.O. I DIRECT HIM TO PROVIDE THE ASSESSEE WITH A COPY OF STATEMENT OF SMT. BINA BHAT TER WHEREIN SHE DENIED TO HAVE GIVEN ANY GIFT TO THE ASSESSEES MINOR SON. HE IS A LSO DIRECTED TO ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE TO PRODUCE ALL THE EVID ENCES WHATEVER HE WANTS TO PRODUCE IN SUPPORT OF THE GIFT OF RS.1 LAKH RECEIVED FROM SMT. BINA BHATTER. THEREAFTER HE WILL 3 READJUDICATE THE MATTER AFTER CONSIDERING ALL THE E VIDENCES WHICH MAY BE PRODUCED BY THE ASSESSEE BEFORE HIM. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DE EMED TO BE ALLOWED FOR STATISTICAL PURPOSES. 0 / 1 2 1! 3 04 THIS ORDER IS PRONOUNCED IN OPEN COURT SD/- ( . .. . . .. . ) (C.D.RAO) , ACCOUNTANT MEMBER ( (( ( ) )) ) DATE: 25 -01-2011 / - + 5 65#7- COPY OF THE ORDER FORWARDED TO : 1. '( / THE APPELLANT : SRI RAJESH SARDA, C/O. INTERNATIONAL SALES SYNDICAT E, 15-B, CLIVE R OW, 2 ND FLOOR, KOLKATA-700 001. 2 +,'( / THE RESPONDENT : I.T.O., WARD-36(1), KOLKATA. 3. /! () : THE CIT(A) - XX, KOLKATA. 4. /!/ THE CIT, KOL- 5 . ; 3 + ! / DR, ITAT, KOLKATA BENCHES, KOLKATA 6 . GUARD FILE . ,5 + / TRUE COPY, /!1/ BY ORDER, (DKP) < = / DY/ASSTT. REGISTRAR .