Sangeeta Khaitan, Kolkata V. ITO, Ward - 46(4), Kolkata, Kolkata

ITA 1255/KOL/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3104 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 26-09-2011
• Court: TRIBUNAL
• Department Lawyers: K N JANA
• Assessee Lawyers: A K TIBREWAL
• Keywords: Gift; Salary income; Third party statement
• Section: 143(3); 131; 68

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE . . . . . . . . , !' /AND #! $'# , ) [BEFORE SHRI K. K. GUPTA, AM & SHRI MAHAVIR SINGH, JM] '% '% '% '% / I.T.A NO. 1255/KOL/2011 $&' !() $&' !() $&' !() $&' !()/ // / ASSESSMENT YEAR: 200 5- 0 6 SANGEETA KHAITAN VS. INCOME-TAX OFFICER, WD-46 (4), KOLKATA. (PAN:AKIPK1972B) (+, /APPELLANT ) (-.+,/ RESPONDENT ) DATE OF HEARING: 03.04.2013 DATE OF PRONOUNCEMENT: 05.04.2013 FOR THE APPELLANT: SHRI A. K. TIBREWAL FOR THE RESPONDENT: SHRI K. N. JANA, SR.DR / / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXX, KOLKATA IN APPEAL NO. 438/CIT(A)-XXX/WARD-46(4)/2007-08 DATED 27.07.2011. ASSESSMENT WAS FRAMED BY ITO, WARD-46(4), KOLKATA U/S. 143(3) OF THE INCOME-TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DA TED 20.12.2007. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF UNEXPLAINED GIFTS RECEIVED BY ASSESSEE FROM SHRI JOY PRAKASH MORE AT RS.1 LAKH AND FURTHER GIFT RECEIVED FROM SHRI KAILASH KUMAR KHATE R AT RS.1 LAKH. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE HAS R ECEIVED GIFTS AMOUNTING TO RS. 1 LAKH EACH FROM SHRI JOY PRAKASH MORE AND SHRI KAILASH KUMAR K HATER OF 205, RABINDRA SARANI, 3 RD FLOOR, KOLKATA-7 AND 32, EZRA STREET, ROOM NO. 755, KOLKAT A-1 RESPECTIVELY. THE ASSESEE BEFORE THE AO FILED COMPLETE DETAILS AND ASSESSMENT PARTICULAR S OF BOTH THE DONORS INCLUDING DETAILS OF INCOME TAX RETURNS, BANK STATEMENTS AND PAN CARD. THE ASSESSEE ALSO SUBMITTED ADDRESSES OF THESE DONORS. THE AO ISSUED SUMMONS FOR EXAMINING THESE DONORS U/S. 131 OF THE ACT BUT THE SUMMONS COULD NOT BE SERVED AS THERE WAS NO EXISTEN CE OF THESE DONORS AT THE GIVEN ADDRESSES. THE MATTER WAS BROUGHT TO THE NOTICE OF ASSESSEE WI TH A REQUEST TO PRODUCE THESE DONORS. AS THE ASSESSEE COULD NOT PRODUCE THESE DONORS, THE AO MAD E ADDITION FOR UNEXPLAINED GIFTS IN RESPECT OF SHRI JOY PRAKASH MORE BY OBSERVING AS UNDER: 2 ITA NO.1255/K/2012 SANGEETA KHAITAN AY: 2005-06 IT IS OBSERVED THAT MR. JAY PRAKASH MORE OF 205, R ABINDRA SARANI, 3 RD FLOOR, KOLKATA-7 (AS PER SL. NO. 1) HAD FILED ITS RETURN OF INCOME F OR THE ASSESSMENT YEAR 2005-06 SHOWING AN INCOME OF RS.71,900/-. FURTHER ON VERIFICATION, IT IS OBSERVED THAT MR. MORE HAD SHOWN DRAWINGS AMOUNTING TO RS.30,594/-. A PERSON WHOSE ANNUAL DRAWING IS RS.30,594/- ONLY HAVING INCOME OF RS.71900/- HAS HARDLY GOT ANY CRED IBILITY TO MAK A GIFT OF RS.100000/- TO A PERSON WHO IS MUCH MORE WEALTHIER THAN THAT OF HI M. THE DONOR IS NOT RELATED TO THE ASSESSEE. THE IDENTITY OF THE PERSON REMAINS UNVER IFIED IN VIEW OF THE FACT THAT THE A/R FAILED TO PRODUCE THE DONORS. THUS, THE PRELIMINAR Y ONUS OF THE ASSESEE HAS NOT BEEN DISCHARGED. AND IN RESPECT OF SHRI KAILASH KUMAR KHATER THE AO HAS OBSERVED AS UNDER: IT IS OBSERVED THAT MR. KAILASH KUMAR KHATER OF 32 , EZRA STREET, KOLKATA-1, ROOM NO. 755 (AS PER SL. NO.2) HAD FILED ITS RETURN OF INCOM E FOR THE ASSESSMENT YEAR 2005-06 SHOWING INCOME OF RS.128025/-. FURTHER IT IS OBSER VED THAT MR. KHATER HAD SHOWN ANNUAL DRAWINGS AMOUNTING TO RS.36000/- OUT OF HIS YEARLY INCOME FROM SALARY OF RS.75000/- AND COMMISSION & BROKERAGE OF RS.52943/- . BUT YET HE MANAGED TO GIFT AN AMOUNT OF RS.100000/-, WHEN HE HARDLY GOT ANY CREDI BILITY TO MAKE A GIFT OF A SUM OF RS.100000/- TO A PERSON WHO IS MUCH MORE WEALTHIER THAN HIM. THE DONOR IS NOT RELATED TO THE ASSESSEE. THE IDENTITY OF THE PERSO N REMAINS UNVERIFIED IN VIEW OF THEFACT THAT THE A/R FAILED TO PRODUCE THE DONOR. THUS, TH E PRELIMINARY ONUS OF THE ASSESSEE HAS NOT BEEN DISCHARGED. 4. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT( A), WHO ALSO CONFIRMED THE ACTION OF AO. AGGRIEVED, NOW ASSESSEE IS IN APPEAL BEFORE US . 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FILED PAPER BOOK, WHICH INCLUDES COPIES OF AFFIDAVITS OF BOTH THE DONORS, COPIES OF BANK STATEMENTS, COPIES OF CONFIRMATION ACCOUNTS, COPIES OF PAN CARDS ALONGWITH COPIES OF RATION CARDS. THE ASSESS EE ALSO SUBMITTED CONFIRMATIN OF ACCOUNT OF SAROJ DEVI PODDER IN RESPECT OF LOAN REFUNDED BY HE R TO SHRI JOY PRAKASH MORE AND ALSO COPY OF LEDGER ACCOUNT OF SHRI KAILASH KUMAR KHATER IN THE BOOKS OF VIVEK TRACOM PVT. LTD. DEPICTING REFUND OF SHARE APPLICATION MONEY AS ALSO COPY OF BANK STATEMENT OF VIVEK TRACOM PVT. LTD.. THE ASSESSEE ALSO FILED COPY OF LETTER ADDRESSED TO ITO FILED DURING THE COURSE OF SCRUTINY PROCEEDINGS THAT THESE TWO DONORS HAVE CHANGED THE ADDRESSES AND THE FOLLOWING ARE THE ADDRESSES: I) JOY PRAKASH MORE, C/O SHYAMA PRASAD PODDAR, SA RDAPALLY, OPPOSITE KALI MANDIR, P.O. & DIST. MALDA (WEST BENGAL) II) KAILASH KUMAR KHATER, GALI NO.3, 3 RD FLOOR, 193, RAMNAGAR, KRISHNANAGAR, DELHI-51. 6. FINALLY, THE LD. COUNSEL FOR THE ASSESSEE RELIED ON VARIOUS CASE LAWS AND ONE PERTINENT CASE LAW OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. M/S. DATAWARE PRIVATE LIMITED, ITAT NO.263 OF 2011, GA NO.2856 OF 2011 DATED 21.09 .2011, WHEREIN HONBLE HIGH COURT HAS OBSERVED AS UNDER: 3 ITA NO.1255/K/2012 SANGEETA KHAITAN AY: 2005-06 IN OUR OPINION, IN SUCH CIRCUMSTANCES, THE ASSESSI NG OFFICER OF THE ASSESSEE CANNOT TAKE THE BURDEN OF ASSESSING THE PROFIT AND LOSS ACCOUNT OF THE CREDITOR WHEN ADMITTEDLY THE CREDITOR HIMSELF IS AN INCOME TAX ASSESSEE. AFTER G ETTING THE PAN NUMBER AND GETTING THE INFORMATION THAT THE CREDITOR IS ASSESSED UNDER THE ACT, THE ASSESSING OFFICER SHOULD ENQUIRE FROM THE ASSESSING OFFICER OF THE CREDITOR AS TO THE GENUINENESS OF THE TRANSACTION AND WHETHER SUCH TRANSACTION HAS BEEN ACCEPTED BY T HE ASSESSING OFFICER OF THE CREDITOR BUT INSTEAD OF ADOPTING SUCH COURSE, THE ASSESSING OFFICER HIMSELF COULD NOT ENTER INTO THE RETURN OF THE CREDITOR AND BRAND THE SAME AS UNWORT HY OF CREDENCE. SO LONG IT IS NOT ESTABLISHED THAT THE RETURN SUBMI TTED BY THE CREDITOR HAS BEEN REJECTED BY ITS ASSESSING OFFICER, THE ASSESSING OFFICER OF THE ASSESSEE IS BOUND TO ACCEPT THE SAME AS GENUINE WHEN THE IDENTITY OF THE CREDITOR AND THE G ENUINENESS OF TRANSACTION THROUGH ACCOUNT PAYEE CHEQUE HAS BEEN ESTABLISHED. WE FIND THAT BOTH THE COMMISSIONER OF INCOME TAX (A PPEAL) AND THE TRIBUNAL BELOW FOLLOWED THE WELL-ACCEPTED PRINCIPLE WHICH ARE REQU IRED TO BE FOLLOWED IN CONSIDERING THE EFFECT OF SECTION 68 OF THE ACT AND WE THUS FIND NO REASON TO INTERFERE WITH THE CONCURRENT FINDINGS OF FACT RECORDED BY BOTH THE AUTHORITIES. THE APPEAL IS THUS DEVOID OF ANY SUBSTANCE AND IS S UMMARILY DISMISSED. 7. WE FIND THAT IN THE PRESENT CASE ALSO THE ASSESS EE HAS DISCHARGED ITS ONUS BY FILING CONFIRMATIONS FROM THE DONORS, COPIES OF ACKNOWLEDG MENT OF RETURNS OF THE RELEVANT ASSESSMENT YEAR, COPIES OF PAN CARD, COPIES OF BANK STATEMENTS AND ALSO CONTRA CONFIRMATION THAT THESE LOANS WERE OUT OF THE AMOUNTS RECEIVED FROM EARLIER LOANS ADVANCED TO OTHER PARTIES, WHICH WAS RETURNED BY THESE PARTIES. ONCE THIS IS THE POSITI ON AND NONE OF THE AUTHORITIES BELOW HAVE GONE INTO THE DETAILS AND NOT DOUBTED THE GENUINENESS OF THE TRANSACTION OR THE CREDITWORTHINESS OF THESE DONORS, IN OUR VIEW, NOW NOTHING BEFORE US RE MAINS AFTER THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S. DATAWARE PRIVATE LI MITED (SUPRA). RESPECTFULLY FOLLOWING THE SAID DECISION IN THE CASE OF M/S. DATAWARE PRIVATE LIMITED (SUPRA), WE ARE OF THE VIEW THAT IN THE ABSENCE OF ANY ENQUIRY FROM THE AO OF THE DONOR S, THE AO CANNOT MAKE THE ADDITION IN THE HANDS OF THE ASSESSEE BY TREATING THE GIFTS RECEIVE D BY ASSESSEE AS UNEXPLAINED. WE DELETE THE SAME AND ALLOW THE APPEAL OF ASSESSEE. 8. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED 9. ORDER PRONOUNCED IN THE OPEN COURT ON 05.04.2013 SD/- SD/- . . . . . . . . , #! #! #! #! $'# $'# $'# $'# , (K. K. GUPTA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 0 0 0 0) )) ) DATED : 5TH APRIL, 2013 !12 $&34 $5! JD.(SR.P.S.) 4 ITA NO.1255/K/2012 SANGEETA KHAITAN AY: 2005-06 / 6 -$$7 87(9- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT SMT. SANGEETA KHAITAN, 188A/23, MANICKT OLLA MAIN ROAD, PARVATI RESIDENCY, FLAT NO.302, KOLKATA- 700 054. 2 -.+, / RESPONDENT ITO, WARD-46(4), KOLKATA. 3 . $/& ( )/ THE CIT(A), KOLKATA 4. 5. $/& / CIT KOLKATA 7!>$ -$& / DR, KOLKATA BENCHES, KOLKATA .7 -$/ TRUE COPY, /&?/ BY ORDER, # '4 /ASSTT. REGISTRAR .