Sri Vivekananda Bera, Purba Medinipur V. ACIT, Circle - 27, Haldia, Haldia

ITA 1377/KOL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4493 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MIHIR BANDHOPADHYAY
• Keywords: Gift; Source of fund; Condonation of delay
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, KOLKATA BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1377/KOL/2017 (ASSESSMENT YEAR: 2009-10) SRI VIVEKANANDA BERA. .....APPELLANT [PAN : ADCPB 2529 A ] VS. ACIT, CIRCLE-27, HALDIA. .............................................................RESPONDENT APPEARANCES BY: SHRI MIHIR BANDHOPADHYAY, AR, APPEARING ON BEHALF OF THE APPELLANT. SHRI SANKAR HALDER, SR. DR, JCIT, APPEARING ON BEHALF OF THE RESPONDENT. DATE OF CONCLUDING THE HEARING : FEBRUARY 27 TH , 2019 DATE OF PRONOUNCING THE ORDER : MARCH 20 TH ,2019 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL BY THE ASSESSEE AND IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 7, KOLKATA (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DATED 16.09.2016. 2. THERE IS A DELAY OF 197 DAYS IN FILING THIS APPEAL. AFTER PERUSING THE PETITION FOR CONDONATION OF DELAY AND EVIDENCE ATTACHED THEREIN, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE WAS PREVENTED FOR SUFFICIENT CAUSE FOR FILING THE APPEAL IN TIME. HENCE, WE CONDONE THE APPEAL AND ADMIT THE APPEAL. 3. THE ASSESSEE IS AN INDIVIDUAL AND IS IN THE BUSINESS OF JEWELLERY. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 19.08.2009 DECLARING TOTAL INCOME OF RS.5,72,020/-. THE ISSUES THAT ARISE FOR OUR ADJUDICATION ARE: 1. THE LD. CIT(A) ERRED IN RESTRICTING THE AVAILABILITY OF ANCESTRAL GOLD TO 1000 GM. ONLY WITHOUT ANY COGENT REASON. 2 I.T.A. NO. 1377/KOL/2017 SRI VIVEKANANDA BERA 2. THE LD. CIT(A) ERRED IN RESTRICTING THE GIFT RECEIVED FROM MOTHER TO RS.1,50,000.00 (I.E. 50% OF THE CLAIM). 4. AFTER HEARING RIVAL CONTENTIONS AND PERUSING THE PAPERS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS. 4.1 THE ASSESSEES CLAIM IS THAT HE HAS RECEIVED/INHERITED ANCESTRAL GOLD OF 3094.510 GRAMS FROM HIS FATHER. IT WAS SUBMITTED THAT THE ASSESSEES FATHER WAS JEWELLER AND HIS LICENCE DATE BACK TO THE YEAR 1963. IT WAS SUBMITTED THAT THE ASSESSEES FATHER WAS IN THE BUSINESS AS A JEWELLER FOR MORE THAN 50 YEARS AND THAT THE FATHER HAS EXPIRED LEAVING THE JEWELLERY BUSINESS TO HIS SON. UNDER THE CIRCUMSTANCES, IT IS ARGUED THAT INHERITANCE OF GOLD OF 3094.510 GRAMS, CLAIMED BY THE ASSESSEE IS REASONABLE AND THERE IS NO BASIS FOR THE LD. CIT(A) IN DIRECTING TO ALLOW ONLY 1000.00 GRAMS OF GOLD AS INHERITANCE. 4.2 THE LD. CIT(A) HAS STATED AT PARA 4.2.3(D) AT PAGE 7 OF HIS ORDER THAT EXISTENCE OF SOME INHERITED GOLD AFTER ROLLING AND RE-ROLLING FOR SO MANY YEARS IS BELIEVABLE. WHILE DOING SO, HE DIRECTED THE ASSESSING OFFICER TO ACCEPT ONE 1 KG GOLD IN THE PLACE OF 3.09 KGS OF GOLD CLAIMED BY THE ASSESSEE. IN OUR OPINION, THERE IS NO LOGIC FOR SUCH QUANTIFICATION. WHEN IT IS ACCEPTED THAT THE FATHER OF THE ASSESSEE WAS IN JEWELLERY BUSINESS FOR MORE THAN 50 YEARS AND THE INHERITANCE OF GOLD AS WELL AS JEWELLERY BUSINESS IS ALSO ACCEPTED AS A FACT, TREATING 1 KG AS INHERITED GOLD AND 2 KGS AS UNEXPLAINED GOLD IS ARBITRARY VIEW. THERE IS NO BASIS TO COME TO SUCH CONCLUSION. THE ADDITION IS MADE ON CONJECTURES AND SURMISES. HENCE, WE DELETE THIS ADDITION AND ALLOW THIS GROUND OF THE ASSESSEE. 5. THE SECOND ISSUE IS THE ACCEPTANCE OF 50% OF THE AMOUNT CLAIMED AS GIFT RECEIVED FROM MOTHER. THE MOTHER OF THE ASSESSEE CLAIMED TO HAVE GIVEN TO THE ASSESSEE CASH GIFT OF RS.3,00,000/-. WHILE THIS FACT THAT THE CASH GIFT WAS GIVEN IS NOT DISPUTED, THE ASSESSING OFFICER AS WELL AS CIT(A) CHOSE TO ACCEPT ONLY RS.1,50,000/- AS A GENUINE GIFT. WE FAIL TO UNDERSTAND THIS LOGIC. THIS IS WITHOUT ANY BASIS. IN CASE, 3 I.T.A. NO. 1377/KOL/2017 SRI VIVEKANANDA BERA THE MOTHER OF THE ASSESSEE HAS NO SOURCE OF FUND, ADDITION MAY BE CONSIDERED IN HER ASSESSMENT, IF LAW PERMITS. PART ACCEPTANCE OF THE STATEMENT WILL NOT SUFFICE. HENCE, THESE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 20 TH MARCH, 2019. SD/- SD/- [ S.S. VISWANETHRA RAVI ] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20.03.2019 (RS, SR. PS) COPY OF THE ORDER FORWARDED TO: 1. SRI VIVEKANANDA BERA, 11, NO.SANKARARA, P.O. TAMLUK, DIST. PURBA MEDINIPUR, 2. ACIT, CIRCLE-27, HALDIA. 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES