Shri Ismat Pasha, Kolkata V. ITO, WD-54(1), KOLKATA, Kolkata

ITA 1417/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0744 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 27-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: V N PUROHIT
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TR IBUNAL KOLKATA D BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, HONBLE JUDICIA L MEMBER] I.T.A. NO. 1417/KOL/2015 ASSESSMENT YEAR: 2008-09 I.T.A. NO. 1418/KOL/2015 ASSESSMENT YEAR: 2009-10 SRI ISMAT PASHA....... ..APPELLANT C/O, SRI ASSOCIATES 41, B.B. GANGULI STREET 3 RD FLOOR KOLKATA 700 012 [PAN : AEPPP 3809 K] INCOME TAX OFFICER, WARD-54(1), KOLKATA.. .....RESPONDENT 3, GOVT. PLACE WEST KOLKATA 700 001 APPEARANCES BY: SHRI V.N. PUROHIT, FCA, APPEARED ON BEHALF OF THE ASS ESSEE. SHRI ARINDAM BHATTACHARJEE, ADDL. CIT, DR, APPEARIN G ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 18 TH , 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 21 ST , 2017 O R D E R PER J. SUDHAKAR REDDY :- BOTH THESE APPEALS ARE FILED BY THE ASSESSEE DIREC TED AGAINST SEPARATE BUT IDENTICAL ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATA, (HEREINAFTER THE LD. CIT(A)), PASSED U/S 250 OF T HE INCOME TAX ACT, 1961 (THE ACT), DT. 09/11/2015, FOR THE ASSESSMENT YEAR 2008-09 & 2009- 10. 2. AFTER HEARING RIVAL CONTENTIONS, CONSIDERING THE PAPERS ON RECORD AND ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE-LAW CITED , WE HOLD AS FOLLOWS:- ITA NO. 1417/KOL/2015, FOR THE ASSESSMENT YEAR 2008 -09 3. THE ONLY ISSUE IS CASH GIFT RECEIVED BY THE ASSE SSEE FROM HIS BROTHER, WHICH WAS TREATED AS UNDISCLOSED INCOME BY THE ASSESSING OFFI CER. THE ASSESSEE CLAIMED THAT HIS ONLY BROTHER, AJMAT PASHA (60 YEARS OF AGE), WAS LO OKING AFTER THE AGRICULTURAL ACTIVITIES 2 I.T.A. NO. 1417/KOL/2015 ASSESSMENT YEAR: 2008-09 I.T.A. NO. 1418/KOL/2015 ASSESSMENT YEAR: 2009-10 SRI ISMAT PASHA OF THE FAMILY, GIFTED AN AMOUNT OF RS. 5,33,000/-, TO HIM. THIS BROTHER OF THE ASSESSEE HAS NO CHILDREN. THE ASSESSEE HAD SUBMITTED THAT TH E GIFT WAS MADE OUT OF NATURAL LOVE AND AFFECTION. IN SUPPORT, THE ASSESSEE FILED THE F OLLOWING DOCUMENTS AND CONFIRMATION LETTER FROM AJMAT PASHA, WHEREIN HE STATED THAT THI S AMOUNT OF IS 5,33,000/-, WAS GIFTED BY HIM TO HIS BROTHER AND ALSO INDICATING TH E SOURCE FROM WHICH THIS AMOUNT WAS GIVEN. THE FOLLOWING EVIDENCES WERE FILED IN SUPPOR T OF THE CLAIM OF AJMAT PASHA, TO THE EFFECT THAT THE GIFT WAS GIVEN FROM AGRICULTURAL IN COME:- A) LIST OF RENT RECEIPTS FROM AGRICULTURAL LAND. B) LIST OF AGRICULTURAL LAND INHERITED, ACQUIRED E TC. C) COPIES OF CERTAIN RECEIPTS WERE FILED. 4. THE LD. CIT(A), DISBELIEVED THE CLAIM OF THE ASS ESSEE ON THE GROUND THAT:- (A) THE GIFT AS BY WAY OF CASH. (B) THE BROTHER HAS MODEST AGRICULTURAL INCOME OF RS.2,40,000/-, PER ANNUM. (C) THE ASSESSEE HAS COME UP WITH THIS EXPLANATION AS AN AFTERTHOUGHT, AS ORIGINALLY THIS HAS NOT APPEARED IN HIS BALANCE SHE ET AND RETURN OF INCOME. (D) THE DONOR OF THE ASSESSEE WAS NOT PRODUCED BEF ORE THE ASSESSING OFFICER. 4.1. THE LD. CIT(A), APPLIED THE DECISION IN THE CA SE OF HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL V. CIT (1995) 214 ITR 801 (SC) AND CIT V. DURGA PRASAD MORE [1971] 82 ITR 540. 5. THE BROTHER OF THE ASSESSEE HAS GIVEN A DECLARAT ION THAT HE HAS NEVER BEEN CALLED BY THE ASSESSING OFFICER AND THAT THE CASH G IFTS WERE GIVEN OVER THE PERIOD OF TIME FROM 03/05/2007 TO 27/07/2007. IN OUR VIEW, A GIFT FROM A BROTHER, WHO HAS NO CHILDREN AND HAS AGRICULTURAL INCOME, SHOULD BE ALL OWED AS GENUINE IN THE ABSENCE OF ANY CONCRETE EVIDENCE, WHICH CONTROVERTS THE EVIDEN CES PRODUCED BY THE ASSESSEE. THE ADDITION, IN OUR VIEW, WAS MADE ONLY ON SURMISE S AND CONJECTURES. THE ASSESSEE HAS DISCHARGED THE BURDEN OF THAT LAY ON HIM. UNDER THESE CIRCUMSTANCES THIS ADDITION IS DELETED AND THE APPEAL OF THE ASSESSEE IS ALLOWE D. ITA NO. 1418/KOL/2015, FOR THE ASSESSMENT YEAR 2009 -10 3 I.T.A. NO. 1417/KOL/2015 ASSESSMENT YEAR: 2008-09 I.T.A. NO. 1418/KOL/2015 ASSESSMENT YEAR: 2009-10 SRI ISMAT PASHA 6. THIS APPEAL OF THE ASSESSEE IS ONLY ON ONE ISSUE . THE ASSESSEE HAD MADE A FIXED DEPOSIT OF RS. 5 LAKH/-, ON 3 RD MAY, 2007. THE ASSESSING OFFICER MADE AN ADDITION FOR THE ASSESSMENT YEAR 2008-09. THE ONLY CONTENTION OF THE ASSESSEE IS THAT, THE INVESTMENT DOES NOT PERTAIN TO THE FINANCIAL YEAR 2 008-09 RELEVANT TO THE ASSESSMENT YEAR 2009-10 AND HENCE NO ADDITION CAN BE MADE. WE AGREE WITH THIS SUBMISSION AND DELETE THIS ADDITION. IF LAW PERMITS, THE ASSESSING OFFICER MAY CONSIDER OF EXAMINING THE TAXABILITY OF THIS INVESTMENT IN THE APPROPRIAT E ASSESSMENT YEAR. 7. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE A RE ALLOWED. KOLKATA, THE 21 ST DAY OF DECEMBER, 2017. SD/- SD/- [S.S. VISWANETHRA RAVI] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21.12.2017 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. SRI ISMAT PASHA C/O, SRI ASSOCIATES 41, B.B. GANGULI STREET 3 RD FLOOR KOLKATA 700 012 2. INCOME TAX OFFICER, WARD-54(1), KOLKATA 3, GOVT. PLACE WEST KOLKATA 700 001 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES