Sri Subhojit Sarkar, Kolkata V. I. T.O. Wd-2(4),Siliguri, Siliguri

ITA 1439/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2612 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2010
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 20-08-2009
• Court: TRIBUNAL
• Department Lawyers: O P AGARWAL
• Assessee Lawyers: N SAHA
• Keywords: Gift; Opportunity of being heard; Source of fund; Reasonable cause

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : KOLKATA [ BEFORE SHRI D.K.TYAGI, J.M. & SHRI B.C. MEENA, A.M. ] I.T.A.NO. 1439 (KOL) OF 2009 ASSESSMENT YEAR 2004-05 SRI SUBHOJIT SARKAR, -VS- INCOME-TA X OFFICER, WARD-2(4), SILIGURI (PAN-AVSPS2203A) SILIGURI. ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SRI N. SAHA RESPONDENT BY : SRI O.P.AGARWAL. O R D E R PER SRI B.C.MEENA, A.M. : THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 28.01.2009 OF C.I.T.(A), SILIGURI, PERTAINING TO AS SESSMENT YEAR 2004-05. IN THIS APPEAL, THE ASSESSEE HAS AGITATED THE FO LLOWING TWO ADDITIONS CONFIRMED BY THE C.I.T.(A) :- (A) ADDITION OF RS.1,85,000/- ON ACCOUNT OF GIFT RECEIVED FROM SISTER. (B) ADDITION OF RS.13,500/- ON ACCOUNT OF LOW DRAWINGS. 2. THE APPEAL OF THE ASSESSEE WAS BARRED BY LIMITATION FO R 116 DAYS. THE ASSESSEE HAS SUBMITTED A PETITION EXPLAINING THE REASONS FOR SUCH DELAY AND PRAYED FOR CONDONATION OF THE SAME. AFTER HEARING THE PARTIES, WE FIND THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE IN NOT FILING THE APPEAL WITHIN THE STIPULATED TIME. THE DELAY IS, THEREFOR E, CONDONED AND THE APPEAL IS DISPOSED OF ON MERIT. 3. THE ASSESSEE CLAIMED TO HAVE RECEIVED GIFT ON PIECEMEA L BASIS FROM HIS OWN SISTER, SMT. SREYASHI ROY ON DIFFERENT DATES THROUGH B ANKING CHANNEL RANGING FROM RS.10,000/- TO RS.40,000/-, TOTALLING TO RS.1,65,00 0/-. IN ADDITION TO THE ABOVE, THE ASSESSEE ALSO RECEIVED CASH G IFT OF RS.20,000/- FROM HIS SISTER ON HIS BIRTHDAY DURING THE YEAR UNDER APPEAL. WHEN THE A.O. ASKED THE ASSESSEE TO PRODUCE HIS SISTER, HE SUBMITTED THAT H IS SISTER IS SETTLED IN AUSTRALIA. THE ASSESSEE ALSO FILED AFFIDAVIT CONFIRMING GIFT BY SMT . SREYASHI ROY. THE A.O., HOWEVER, OBSERVED THAT THE DONOR DID NOT H AVE I.T. FILE NO. HE, THEREFORE, CONCLUDED THAT THE GIFT SHOWN BY THE ASSESSEE FROM HIS SISTER WAS 2 NOTHING BUT HIS OWN INCOME INTRODUCED IN THE GARB OF GIFT. HE, THEREFORE, ADDED THE SUM OF RS.1,85,000/- TO THE TOTAL INCOME OF THE ASSESSEE. 4. ON APPEAL, THE C.I.T.(A) CONFIRMED THE ADDITION OF RS.1,85,000 /- BY OBSERVING AS UNDER :- I HAVE CAREFULLY CONSIDERED THE ARGUMENT OF THE LD. AR AND ALSO PERUSED THE ASSESSMENT ORDER. THE AR FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF HIS ARGUMENT. THE CHART PRODUCED BY HIM WAS NOT CORROBORATED WITH ANY EVIDENCE LIKE BANK STATEMENT OF HE R MOTHER OR HER OWN BANK PASS BOOK. THEREFORE, THE CHART CANNOT BE ENTERTAINED AS EVIDENCE. ON THE OTHER HAND, THE AO MADE IT CLEAR THAT AT THE TIME OF MAKING THE AFFIDAVIT, THE ALLEGED DONOR WAS IN AUSTRALIA. THER EFORE, THE CONTENTS OF THE AFFIDAVIT IS ALSO NOT ACCEPTABLE. THE ALLEGED GIFT AMOUNT WAS ALSO FOUND WITHDRAWN FROM THE BANK ACCOUNT AFTER THE EXPIRY OF THE FINANCIAL YEAR. THEREFORE, IT CANNOT BE SAID THAT THE SOUR CE OF THE GIFT AMOUNT WAS GIFT RECEIVED BY THE DONOR FROM HER MOTHER. APPARENTLY, THE MOTHER OF THE ASSESSEE, THE DONOR I.E. THE SISTER OF THE ASSESSEE AND THE DONOR HAVE THEIR OWN BANK ACCOUNTS AND THERE HAD BEEN NO DIFFICULTY TO MAKE THE GIFT THROUGH BANKING CHANNEL. BUT IT WAS CLAIMED TO HAVE BEEN MADE IN CASH IN 13 DIFFERENT OCCASIONS WHICH SOUNDS ABNORMAL. THE DONOR IS NOT EVEN ASSESSED IN INDIA DURING THE MATERIAL TIME. IN VIEW OF THE ABOVE FACT, IT IS HELD THAT THE ASSES SEE FAILED TO ESTABLISH THE SOURCE OF THE AMOUNT GIFTED AND THE GENUINE NESS OF THE TRANSACTIONS. I FIND NO REASON TO INTERFERE INTO THE ORDE R OF THE LD. AO. THE SAME IS CONFIRMED. 5. WE HAVE HEARD THE PARTIES AND GONE THROUGH THE MA TERIAL PLACED BEFORE US. IN THE PAPER BOOK THE ASSESSEE HAS FURNISHED, INTER ALIA, DEATH CERTIFICATE OF HIS FATHER, COPY OF BANK PASS BOOK OF SBI MAINTAINED IN THE JOINT NAMES OF HIS FATHER AND MOTHER AND WRITTEN SUBMISSION OF SMT. SHREY ASI ROY BEFORE THE I.T.A.T. EXPLAINING THE BACKGROUND OF HER SOURCE OF FUND AN D GIFT TO HER YOUNGER BROTHER. IN THIS WRITTEN SUBMISSION IT HAS BEEN EXPLAINED THAT AFTER THE SAD DEMISE OF HER FATHER, DR. BIRENDRA KR. SARKAR, THER E WAS A MUTUAL SETTLEMENT REGARDING THE DISTRIBUTION OF HIS MOVABLE AND IM MOVABLE ASSETS AMONGST THE LEGAL HEIRS OF HIS PROPERTY, I.E. HER MOTHER, SMT . JAYASRI SARKAR, BROTHER SRI SUBHOJIT SARKAR (ASSESSEE) AND HERSELF AND AS PER THIS FAMILY SETTLEMENT, SHE RECEIVED 1/3 RD SHARE OF THE LAND, BUILDING AND PART OF EXISTING CASH AMOUNTING TO RS.7,65,000/-. OUT OF THIS AMOUNT OF RS.7 ,65,000/-, MOTHER OF SMT. SHREYASI ROY, IN WHOSE NAME BANK ACCOUNT WAS OPERATIVE AFTER THE DEATH OF DR. BIRENDRA KR. SARKAR, WITHDREW SUM O F RS.6 LAKHS AND 3 GIVEN TO HER DAUGHTER BY CHEQUE DRAWN ON SBI, WHICH WA S DEPOSITED IN HER BANK ACCOUNT. IT WAS FURTHER EXPLAINED THAT AS SMT. SHR EYASI ROY WAS RESIDING IN AUSTRALIA AND HER BROTHER REQUIRED FINANCIAL HELP AFTER SUDDEN DEMISE OF THEIR FATHER, SHE THEREFORE, REQUESTED HER MOTHE R TO GIVE THE ASSESSEE THE REMAINING PART OF HER SHARE OF INHERITED MON EY, I.E. RS.1,65,000 [RS.7,65,000 RS.6,00,000] IN SMALL PARTS AT REGULAR INTERVALS. ACCORDINGLY, THE MOTHER OF THE ASSESSEE GAVE HIM MONEY ON PIECEMEA L BASIS ON 12 OCCASIONS BETWEEN 30.4.2003 AND 29.2.2004, I.E. WITHIN THE FINAN CIAL YEAR RELEVANT TO ASSESSMENT YEAR 2004-05. A CHART SHOWING S .B. ACCOUNT NO., DATE OF WITHDRAWAL AND AMOUNT WITHDRAWN IS ALSO FILED BEFORE US. REGARDING THE BALANCE CASH GIFT OF RS.20,000/-, IT WAS EXPLAINED THAT THE SAME WAS GIVEN ON 31.5.2003 BY SMT. SHREYASI ROY ON HER BROTHERS BIRTHDA Y, I.E. ASSESSEE. CONSIDERING ALL THESE FACTS AND EVIDENCE MADE AVAILABLE TO U S, WE ARE OF THE CONSIDERED OPINION THAT IT WOULD MEET THE ENDS OF JUSTICE IF THE ISSUE IS READJUDICATED UPON BY THE A.O. WE, THEREFORE, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND REMAND THE MATTER BACK TO THE FILE OF A.O., WHO IS DIRECTED TO CONSIDER THE MATTER AFRESH IN THE LIGHT OF T HE FACTS STATED ABOVE AND EVIDENCE SUBMITTED BY THE ASSESSEE IN SUPPORT THE REOF AND REFRAME THE ASSESSMENT DE NOVO. WHILE DOING SO, THE A.O. SHOULD ALLOW AD EQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 6. THE OTHER GROUND IS AGAINST ADDITION OF RS.13,500/- ON ACCOUNT OF LOW WITHDRAWALS. THE ASSESSEE HAS SHOWN DRAWINGS OF RS.16,500 /- DURING THE YEAR UNDER CONSIDERATION. THE A.O. HAS ESTIMATED THE MON THLY EXPENSES @ RS.3,000/- PER MONTH AND ARRIVED AT THE EXPENDITURE AT RS.36,000/-. HE, THEREFORE, ADDED BACK RS.19,500/- [RS.36,000 RS.16,500] TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL, THE C.I.T.(A) HELD THAT TH E ASSESSEE BEING A BACHELOR AND JOINTLY LIVING WITH HIS MOTHER, THE WITHDRAWAL O F RS.16,500/- CANNOT BE CONSIDERED SUFFICIENT. HE, HOWEVER, RESTRICTED T HE ADDITION TO RS.13,500/-. 7. WE FIND THAT AT THE RELEVANT TIME THE ASSESSEE WAS A BACHELOR AND JOINTLY LIVING WITH HIS MOTHER. IT WAS SUBMITTED THAT THE MOTHER OF THE ASSESSEE ACTUALLY USED TO MANAGE ALL THE HOUSEHOLD AFFAIRS OUT OF HER OWN 4 SOURCE OF INCOME. THE ASSESSEE HAS TO MANAGE ONLY HIS PERSONAL AFFAIRS OUT OF HIS INCOME FROM TEACHING PROFESSION. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES STATED ABOVE, WE ARE OF THE OPINION THAT T HE PERSONAL WITHDRAWAL ESTIMATED BY THE C.I.T.(A) IS ON THE HIGHER SIDE . WE, THEREFORE, ESTIMATE THE PERSONAL WITHDRAWAL OF THE ASSESSEE @ RS.1,80 0/- PER MONTH, I.E. RS.21,600/-. THE ADDITION SUSTAINED AT RS.13,500/- IS, THERE FORE, RESTRICTED TO RS.5,100/-. THE ASSESSEE THUS GETS RELIEF OF RS.8,400/- [RS.13,500 RS.5,100]. 8. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- [D.K.TYAGI] [B.C. MEENA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29-04-2010 COPY FORWARDED TO : 1. SRI SUBHOJIT SARKAR, C/O. NARAYAN SAHA, ADVOCATE, 2 ND FL;OOR, SREE BHAWAN, HILL CART ROAD, SILIGURI-734 001. 2. I.T.O., WARD-2(4), SILIGURI. 3. C.I.T.(A), SILIGURI 4. THE C.I.T., SILIGURI. 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, KOLKATA. TRUE COPY, BY ORDER [DKP] DY. REGISTRAR.