Sri Kalyan Prasad Sadhu, Burdwan V. I.T.O Wd - 2(3),Burdwan., Burdwan

ITA 13/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87690 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR
• Assessee Lawyers: KALYAN PRASAD SADHU
• Keywords: Gift; Income from undisclosed sources

Judgement Text

I.T.A. NO . 1 3 / KOL ./201 3 ASSESSMENT YEAR: 200 6 - 20 0 7 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN , JUDICIAL MEMBER I.T.A. NO. 1 3 / KOL / 20 1 3 ASSESSMENT YEAR : 200 6 - 20 0 7 SHRI KALYAN PRASAD SADHU,................ ..... .... . ... ............. .. .APP ELL ANT BAJEPRATAPPUR, SUBHASPALLI, NEAR SABJI MARKET, BURDWAN - 713 101 [PAN : A ZWPS 2714 A ] - VS. - INCOME TAX OFFICER , ........................... ................... ... . RESPONDENT WARD - 2 ( 3 ), BURDWAN , AAYAKAR BHAWAN ANNEXE, 2 ND FLOOR, BURDWAN COURT COMPOUND, BURDWAN - 713 101, WEST BENGAL APPEARANCES BY: S HRI KALYAN PRASAD SADHU , FOR THE ASSESSEE S HRI ANIL KUMAR PANDE , J CIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MARCH 0 3 , 2 01 5 DATE OF PRONOUNCING THE ORDER : MARCH 0 3 , 201 5 O R D E R PER GEORGE MATHAN : THIS IS AN APPEAL FILED BY THE ASSESSE E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) , DURGAPUR IN APPEAL NO. 63 / CIT(A) / ASL/WD - 2(3)/BWN/2008 - 09 D ATED 0 2 . 11 .201 2 FOR THE ASSESSMENT YEAR 200 6 - 0 7 . 2. S HRI KALYAN PRASAD SADHU , THE ASSESSEE, IN PERSON REPRESENTED HIS APPEAL AND S HRI ANIL KUMAR PANDE , J CIT, SR. D.R. REPRESENTED ON BEHALF OF THE REVENUE. 3. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE ASSESSEE THAT AT THE OUTSET , NO NOTICE UNDER SECTION 143(2) HAD BEEN SERVED ON THE ASSESSEE. I.T.A. NO . 1 3 / KOL ./201 3 ASSESSMENT YEAR: 200 6 - 20 0 7 PAGE 2 OF 4 THE ASSESS E E DREW OUR ATTENTION TO THE AFFIDAVIT DATED 30.10.2009 WHEREIN HE SPECIFICALLY MENTIONED THAT HE WAS NOT IN STATION. HE HAS ALSO DRAWN ATTENTION THE TRAIN TICKET FOR HIS TRAVEL FROM 19 .10.2007 TO 31.10.2007 WHEREBY HE HAS TRAVELLED FROM JAISALMIR TO J ODHPUR , KOTA TO ASANSOL. THE TICKETS SEEM TO HAVE BEEN BOOKED ON 17.08.2007. COPY OF THE HOTEL BILLS AND RETIRING ROOM TICKETS AT JAISALMIR AS ALSO THE BILL FROM ACCOMMODATION AT JODHPUR ON 21 ST & 22 ND OCTOBER, 2007, H OSPITAL BILL AT MOUNT ABU DATED 22.10.2007, HOTEL BILL FOR 23.10.2007, ETC. HAD ALSO BEEN PRODUCED. IT WAS THE SUBMISSION THAT EVEN ON MERITS, THE ASSESSING OFFICER HAD ADDED AN AMOUNT OF RS.7,00,000/ - AS GIFT RECEIVED BY THE A SSESSEE FROM HIS MOTHER THROUGH CHEQUES FROM HER HDFC SAVINGS BANK ACCOUNT WHICH WAS SUPPORTED BY THE DECLARATION OF GIFT WAS TREATED AS UNEXPLAINED INCOME OF THE ASSESSEE. SIMILARLY THE BALANCE FUND AVAILABLE AND THE DEBITS IN THE BANK ACCOUNT OF THE ASSE SSEE S MOTHER WAS ALSO TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. IT WAS THE SUBMISSION THAT THE ASSESSEE S MOTHER HAD EXPIRED ON 28.06.2005. THE ASSESSEE DREW OUR ATTENTION TO PAGE 28 OF THE PAPER BOOK WHICH WAS THE COPY OF THE BANK ACCOUNT OF THE ASS ESSEE S MOTHER KHETU RANI SADHU WITH M/S. HDFC BANK, STEPHEN HOUSE, KOLKATA. IT WAS THE SUBMISSION THAT THE ASSESSEE S MOTHER HAD RECEIVED THE FUNDS AND THE DEBITS IN THE BANK ACCOUNT WERE THE SALE PROCEEDS OF SHARES HELD BY THE ASSESSEE S MOTHER , WHICH HA D BEEN SOLD. IT WAS THE SUBMISSION THAT THERE WAS NO CASH TRANSACTION IN THE SAID BANK ACCOUNT. THE ASSESSEE ALSO DREW OUR ATTENTION TO PAGES 43 TO 54 WHICH WAS THE COPY OF THE DETAILS OF SHARES SOLD BY THE ASSESSEE S MOTHER THROUGH THE STOCK EXCHANGE. IT WAS THE SUBMISSION THAT THE ADDITIONS WERE LIABLE TO BE DELETED. 4. IN REPLY, LD. SR. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND LD. CIT(APPEALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OUTSET, A PERUSAL OF THE ORDER OF THE LD. CIT(APPEALS) SHOWS THAT ON MERITS, THE LD. I.T.A. NO . 1 3 / KOL ./201 3 ASSESSMENT YEAR: 200 6 - 20 0 7 PAGE 3 OF 4 CIT(APPEALS) HAS DIRECTED THE ASSESSING OFFICER TO RECONSIDER THE ISSUES. ADMITTEDLY THE LD. CIT(APPEALS) DOES NOT HAVE THE POWERS TO DO SO. COMING TO THE MERITS OF THE ADDITIONS MADE, A PERUSAL OF PAGE S 43 TO 54 OF THE PAPER BOOK, WHICH IS DETAILS OF THE TRANSACTIONS INVOLVING THE SALE OF THE SHARES BY SMT. KHETU RANI SADHU WHEN TALLIED WITH PAGE 28 OF THE PAPER BOOK BEING THE SAVINGS BANK ACCOUNT OF SMT. KHETU RANI SADHU, THE MOTHER OF THE ASSESSEE, SH OWS THAT THE AMOUNT OF RS.7,63,890/ - WAS CLEARLY THE AMOUNT PAID ON THE SALE OF VARIOUS SHARES AND IT IS CLEARLY A FUND TRANSFER. THIS IS AS PER THE STATEMENT OF ACCOUNT OF R.K. GLOBAL SHARES & SECURITIES LIMITED. AT PAGE NO. 53 OF THE PAPER BOOK, AN AMOUN T OF RS.4,72,123/ - WHICH IS AGAIN THE SALE PROCEEDS OF SHARES. ADMITTEDLY THE TWO MAIN DEBITS IN THE BANK ACCOUNTS ARE SOURCED CLEARLY FROM THE SALE OF SHARES AND THE DEBIT INTO THE BANK ACCOUNT IS CLEARLY THROUGH BANKING CHANNELS. INTERESTINGLY IN THE SAI D BANK ACCOUNT WITH HDFC, THERE IS NO CASH TRANSACTION IN ANY MANNER WHATSOEVER. WHEN THIS IS VERIFIED WITH THE GIFT DEED OF THE ASSESSEE S MOTHER, IT SHOWS THAT THE GIFT OF RS.7,00,000/ - MADE ON 07.04.2005 THROUGH TWO CHEQUES FOR RS.4,00,000/ - AND RS.3,00 ,000/ - ARE CLEARLY A GENUINE TRANSACTION. THE BALANCE DEBITS IN THE BANK ACCOUNT TOTALLING TO RS.5,16,484/ - AGAIN BEING CLEARLY CHEQUE TRANSACTIONS AND SOURCED FROM THE BALANCE OF THE SALE PROCEEDS OF THE SHARES, THE SAME CANNOT BE HELD TO BE THE CONVERSIO N OF THE UNACCOUNTED INCOME OF THE ASSESSEE. THIS IS BECAUSE THERE IS NO OTHER TRANSACTION IN THE SAID BANK ACCOUNT OTHER THAN THE TWO MAI N DEBIT ENTRIES FROM THE SALE OF THE SHARES. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ADDITION AS MADE BY T HE ASSESSING OFFICER AND AS CONFIRMED BY THE LD. CIT(APPEALS) IS UNSUSTAINABLE AND THE SAME STANDS DELETED. THE BALANCE OF RS.37,659/ - IN THE HDFC BANK OF THE ASSESSEE S MOTHER WHICH HAS BEEN TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE ALSO WOULD NOT SU RVIVE IN SO FAR AS THE BANK ACCOUNT IS CLEARLY IN THE NAME OF THE ASSESSEE S MOTHER AND THE SOURCE FOR THE SAME IS ONLY THE SALE PROCEEDS OF THE SHARES. IN THESE CIRCUMSTANCES, THIS ADDITION ALSO IS UNSUSTAINABLE AND STANDS DELETED. I.T.A. NO . 1 3 / KOL ./201 3 ASSESSMENT YEAR: 200 6 - 20 0 7 PAGE 4 OF 4 6. COMING TO THE LEGAL ISSUE RAISED BY THE ASSESSEE THAT THE NOTICE UNDER SECTION 143(2) HAS NOT BEEN SERVED ON THE ASSE S SEE AND WHICH IS SUPPORTED BY THE VARIOUS EVIDENCES PRODUCED. THE REVENUE ADMITTEDLY HAS NOT BEEN ABLE TO DISLODGE ANY OF THE EVIDENCES PRODUCED BY THE ASSESS EE. ADMITTEDLY THE ASSESSEE WAS NOT IN STATION WHEN THE NOTICE UNDER SECTION 143(2) HAS BEEN ALLEGED TO HAVE BEEN SERVED ON HIM. HOWEVER, WE DO NOT WISH TO GO INTO THIS TECHNICAL ASPECT AS WE HAVE ALREADY DELETED ALL THE ADDITIONS MADE BY THE ASSESSING OFF ICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON MERITS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MARCH , 201 5 . SD/ - SD/ - SHAMIM YAHYA GEORGE MATHAN (ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 3 RD D AY OF MARCH , 201 5 COPIES TO : (1) SHRI KALYAN PRASAD SADHU, BAJEPRATAPPUR, SUBHASPALLI, NEAR SABJI MARKET, BURDWAN - 713 101 (2) INCOME TAX OFFICER, WARD - 2(3), BURDWAN, AAYAKAR BHAWAN ANNEXE, 2 ND FLOO R, BURDWAN COURT COMPOUND, BURDWAN - 713 101, (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .