ACIT, Circle - 50, Kolkata, Kolkata V. Shri Kishore Lak Saha, Kolkata

ITA 137/KOL/2011

• Counselvise Citation: 13723514 RSA 2011
• Duration Of Justice: 3 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: IMLIMEREN JAMIR
• Assessee Lawyers: I BAN ERJEE
• Keywords: Gift

Judgement Text

I.T.A. NO. 137/KOL./2011 ASSESSMENT YEAR: 2007-2008 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER), AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 137/KOL. / 2011 ASSESSMENT YEAR : 2007-2009 ASSISTANT COMMISSIONER OF INCOME TAX,......... .....APPELLANT CIRCLE-50, KOLKATA, 169, A.J.C. BOSE ROAD, 9 TH FLOOR, KOLKATA-700 014 -VS.- SHRI KISHORI LAL SAHA,............................. ...........................RESPONDENT P-909, BLOCK-A, LAKE TOWN, KOLKATA-700 089 [PAN : ALGPS 3023 A] APPEARANCES BY: SHRI IMLIMEREN JAMIR, JCIT, SR. D.R., FOR THE DEPARTMENT SHRI I. BANERJEE, FCA, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : AUGUST 05, 2014 DATE OF PRONOUNCING THE ORDER : AUGUST 06, 2014 O R D E R PER GEORGE MATHAN: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXII, KOLKATA IN APPEAL NO. 181/CIT(A)-XXXII/09-10/CIR-50/KOL. DATED 27.08.2010 FOR THE ASSESSMENT YEAR 2007-08. 2. SHRI IMLIMEREN JAMIR, JCIT, SR. D.R., REPRESENTE D ON BEHALF OF THE REVENUE AND SHRI I. BANERJEE, FCA, REPRESENTED ON B EHALF OF THE ASSESSEE. 3. IN THE REVENUES APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS:- I.T.A. NO. 137/KOL./2011 ASSESSMENT YEAR: 2007-2008 PAGE 2 OF 6 (1) LD. CIT(A) HAS ERRED IN FACTS AS WELL AS LAW IN RESTRICTING TO RS.8,418/- OF ADDITIONS OF RS.1,44,1 70/- MADE ON A DIFFERENCE OF GIFT TAKEN AND REFLECTED IN THE BALANCE SHEET. (2) LD. CIT(A) HAS ERRED IN FACTS AS WELL AS IN LAW IN RESTRICTING TO RS.5,157/- THAT IS 15% OF TOTAL DEPO SIT IN LIEU OF RS.67,539/- THAT 15% ON RS.450262/- ON BOTH SAVINGS ACCOUNTS. (3) LD. CIT(A) HAS ERRED IN FACTS AS WELL AS LAW IN DELETING TO RS.27,65,393/- ON ACCOUNT OF UNEXPLAINED INVESTM ENTS IN MUTUAL FUNDS BY TAKING THIS AS GIFT TAKEN FROM H IS FAMILY MEMBERS AND A SAVINGS ACCOUNTS. . 4. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. SR. D.R. THAT IN RESPECT OF THE GROUND NO. 1 THAT IN THE COURSE OF A SSESSMENT IT WAS NOTICED THAT THE ASSESSEE HAD MADE GIFTS TO HIS WIF E, SON AND DAUGHTER-IN- LAW. THE ASSESSING OFFICER HAD VERIFIED THE GIFTS W ITH THE AFFIDAVITS AND BALANCE-SHEET OF THE SAID RECIPIENTS OF THE GIFTS. IT WAS THE SUBMISSION THAT AS PER THE BALANCE-SHEET OF THE RECIPIENTS THE TOTAL OF THE GIFTS CAME TO RS.24,69,563/-, WHEREAS THE BALANCE-SHEET OF THE ASSESSEE SHOWED THAT THE ASSESSEE HAD ONLY GIVEN A GIFT OF RS.23,25,393/ -. CONSEQUENTLY THE ASSESSING OFFICER HAD MADE AN ADDITION OF RS.1,44,1 70/- BY TREATING THE SAME AS GIFTED FROM UNDISCLOSED SOURCES. IT WAS THE SUBMISSION THAT THE LD. CIT(APPEALS) HAD REDUCED THE ADDITION TO RS.8,4 18/-. LD. SR. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. 5. IN REPLY, LD. A.R. SUBMITTED THAT THE BALANCE-SH EET OF THE ASSESSEE ALSO SHOWED THAT THE GIFT OF RS.1,35,752.52 REPRESE NTING THE BANK BALANCES WHICH WAS HELD BY THE ASSESSEE IN RESPECT OF THE ASSESSEES WIFE, SON AND DAUGHTER-IN-LAW TO HAVE BEEN GIFTED TO THEM . IT WAS THE SUBMISSION THAT THE LD. CIT(APPEALS) HAD DELETED TH E AMOUNT OF RS.1,35,752/- ONLY ON THE BASIS OF THE BALANCE-SHEE T OF THE ASSESSEE WHICH WAS BEFORE THE ASSESSING OFFICER. LD. A.R. VEHEMENT LY SUPPORTED THE ORDER OF THE LD. CIT(APPEALS). I.T.A. NO. 137/KOL./2011 ASSESSMENT YEAR: 2007-2008 PAGE 3 OF 6 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ASSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER H AS TREATED THE DIFFERENCE BETWEEN THE GIFTS AS RECORDED BY THE REC IPIENTS IN THEIR BALANCE-SHEETS AND AS RECORDED BY THE ASSESSEE IN H IS BALANCE-SHEET AS THE AMOUNT GIFTED FROM THE UNDISCLOSED SOURCES. A P ERUSAL OF THE ORDER OF THE LD. CIT(APPEALS) SEEN ALONGWITH THE BALANCE-SHE ET OF THE ASSESSEE AS ON 31.03.2007 SHOWS THAT THE LD. CIT(APPEALS) HAS D ELETED THE AMOUNT OF RS.1,35,752/- OUT OF THE ADDITION MADE BY THE ASSES SING OFFICER REPRESENTING THE BANK BALANCES GIFTED. A PERUSAL OF THE AFFIDAVIT FILED BY THE ASSESSEE IN RESPECT OF THE GIFTS GIVEN TO HIS W IFE, SON AND DAUGHTER-IN- LAW SHOWS THAT HE HAS SPECIFICALLY MENTIONED THAT E VEN THE BANK ACCOUNTS BEING OPERATED IN THEIR NAMES HAVE BEEN GIFTED TO T HEM. THESE EVIDENCES HAVE NOT BEEN DISLODGED BY THE REVENUE. IN THESE CI RCUMSTANCES, WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT(APPEALS ) ON THIS ISSUE IS ON THE RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENC E. HERE WE ALSO MENTION THAT THOUGH THE LD. CIT(APPEALS) HAS CONFIRMED THE ADDITION TO AN EXTENT OF RS.8,418/-, WE ARE UNABLE TO UNDERSTAND HOW THE DIFFERENCE WHICH IS EXCESSIVE DISCLOSURE IN THE HANDS OF THE RECIPIENTS CAN BE TREATED AS BEING GIFTED OUT OF THE UNDISCLOSED INCOME OF THE ASSESSE E. IF AT ALL THIS WAS AN AMOUNT WHICH COULD HAVE BEEN CONSIDERED IN THE HAND S OF THE RECIPIENTS. HOWEVER, AS THE ASSESSEE IS NOT IN APPEAL ON THIS I SSUE, WE DO NOT SPECIFICALLY ADJUDICATE ON THE ISSUE. IN THESE CIRC UMSTANCES, GROUND NO. 1 OF THE REVENUES APPEAL STANDS DISMISSED. 7. IN RESPECT OF GROUND NO. 2, IT WAS SUBMITTED BY THE LD. SR. D.R. THAT THE ISSUE WAS AGAINST THE ACTION OF THE LD. CIT(APP EALS) IN RESTRICTING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER REPRESEN TING AN UNDISCLOSED BANK ACCOUNT AT 15% OF THE TOTAL DEPOSITS IN THE SA ID ACCOUNT. LD. SR. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. I.T.A. NO. 137/KOL./2011 ASSESSMENT YEAR: 2007-2008 PAGE 4 OF 6 8. IN REPLY, LD. A.R. SUBMITTED THAT THE LD. CIT(AP PEALS) HAS ONLY APPLIED THE SAME RATE IN RESPECT OF ANOTHER BANK AC COUNT, WHICH HAS BEEN TREATED AS UNDISCLOSED BY THE ASSESSING OFFICER AND WHO HAD ESTIMATED THE INCOME OF THE ASSESSEE FROM SUCH BANK ACCOUNT A T 15%. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(APPEA LS). 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ORDER OF THE ASSESSING OFFICER SHOWS THAT THE ASSESSING OFFI CER IN RESPECT OF THE BANK ACCOUNT WITH U.B.I., PATIPUKUR BRANCH HAS ESTI MATED THE INCOME OF THE ASSESSEE AT 15% OF THE TOTAL DEPOSITS IN THE SA ID ACCOUNT. HOWEVER, IN RESPECT OF THE ACCOUNT NUMBER CA 1724, THE ASSESSIN G OFFICER HAS TREATED THE TOTAL DEPOSITS AS UNEXPLAINED INCOME OF THE ASS ESSEE. A PERUSAL OF THE ORDER OF THE LD. CIT(APPEALS) SHOWS THAT THE LD. CI T(APPEALS) HAS ADOPTED THE SAME RATE OF 15% IN RESPECT OF THE SAID BANK AC COUNT CA 1724 AS HAS BEEN ADOPTED IN RESPECT OF THE BANK ACCOUNT CA 1011 3 AT U.B.I., PATIPUKUR BRANCH. A PERUSAL OF THE ORDER OF THE LD. CIT(APPEA LS) SHOWS THAT THE LD. CIT(APPEALS) HAS APPLIED THE SAME YARDSTICK AS HAS BEEN APPLIED BY THE ASSESSING OFFICER IN RESPECT OF THE U.B.I. ACCOUNT TO THE BANK OF BARODA CA 1724 ACCOUNT. WE FIND NO ERROR IN THE FINDING AS AR RIVED AT BY THE LD. CIT(APPEALS) ON THIS ISSUE. CONSEQUENTLY THE SAID G ROUND NO. 2 OF THE REVENUES APPEAL STANDS DISMISSED. 10. IN RESPECT OF GROUND NO. 3, IT WAS SUBMITTED BY THE LD. SR. D.R. THAT IN THE COURSE OF ASSESSMENT IT WAS NOTICED THAT THE ASSESSEE HAD MADE VARIOUS INVESTMENTS IN MUTUAL FUNDS. THE ASSESSING OFFICER HAD NOTICED THAT THE INVESTMENTS IN THE MUTUAL FUNDS WERE PARTL Y SUPPRESSED. CONSEQUENTLY HE REWORKED THE ACTUAL INVESTMENT MADE AND THE AMOUNT OF INVESTMENTS SUPPRESSED BY THE ASSESSEE WAS DETERMIN ED AT RS.27,65,393/-. IT WAS THE SUBMISSION BY THE LD. SR . D.R. THAT THE LD. CIT(APPEALS) HAD DELETED THE SAME WITHOUT GIVING AN Y SPECIFIC REASONS. I.T.A. NO. 137/KOL./2011 ASSESSMENT YEAR: 2007-2008 PAGE 5 OF 6 11. IN REPLY, LD. A.R. SUBMITTED THAT THE ASSESSEE S BUSINESS UNDER THE NAME HAPPY HOME HAD A SEPARATE BALANCE-SHEET WHIC H SHOWED SOURCES OF FUNDS AND INVESTMENTS MADE. IT WAS THE SUBMISSIO N THAT THESE WERE NOT TAKEN INTO CONSIDERATION WHEN THE DIFFERENCE OF RS. 27,65,393/- WAS DETERMINED. IT WAS THE SUBMISSION THAT IF THIS WAS ALSO CONSIDERED THEN THE ADDITION WOULD BE NIL IN SO FAR AS THE AMOUNT O F RS.4,40,000/-HAD BEEN INVESTED FROM THE BANK ACCOUNT OF THE HAPPY H OME CONCERN AND THE AMOUNT OF GIFT OF THE INVESTMENTS MADE BY THE A SSESSEE TO HIS WIFE, SON AND DAUGHTER-IN-LAW HAD TO BE REDUCED. IF THESE TWO ADJUSTMENTS WERE DONE, IT WAS THE SUBMISSION THAT THE ADDITION OF RS.27,65,393/- WOULD BE COMPLETELY EXPLAINED HE VEHEMENTLY SUPPORT ED THE ORDER OF THE LD. CIT(APPEALS). 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ORDER OF THE LD. CIT(APPEALS) CLEARLY SHOWS THAT THE ASSESSE E HAS FILED WRITTEN SUBMISSION IN RESPECT OF THIS ISSUE. HOWEVER, IT IS NOTICED THAT THESE DETAILS ARE NOT EMANATING OUT OF THE ORDER OF THE A SSESSING OFFICER. IN THESE CIRCUMSTANCES, THIS ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION AFTER GRANTING THE ASSE SSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE HIS CASE. 13. IN THE RESULT, GROUND NO. 3 OF THE REVENUES AP PEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 14. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH AUGUST, 2014. SD/- SD/- SHAMIM YAHYA GEORGE MATHAN (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA, THE 06 TH DAY OF AUGUST, 2014 I.T.A. NO. 137/KOL./2011 ASSESSMENT YEAR: 2007-2008 PAGE 6 OF 6 COPIES TO : (1) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-50, KOLKATA, 169, A.J.C. BOSE ROAD, 9 TH FLOOR, KOLKATA-700 014 (2) SHRI KISHORI LAL SAHA, P-909, BLOCK-A, LAKE TOWN, KOLKATA-700 089 (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 BENCHES, KOLKATA LAHA/SR. P.S.