Mrs. Dipali Ghosh, Darjeeling V. ITO, Ward - 1(3), Siliguri, Siliguri

ITA 1479/KOL/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6808 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 23-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOUTAM MONDAL
• Assessee Lawyers: S K TULSIYAN
• Keywords: Gift; Question of law
• Section: 143(3); 131; 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH-B: KO LKATA ( ) , , . . , ,) [BEFORE HONBLE SHRI MAHAVIR SINGH, J.M. & HONBLE SHRI C.D. RAO, A.M] /I.T.A. NO. 1479/KOL./2010 ASSESSMENT YEAR : 2004-2005 MRS. DIPALI GHOSH, DARJEELING VS.- INCOME TAX OFFICER, WD-1(3), SILIGURI (PAN : AHAPG 2416 M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. TULSIYAN, A.R. RESPONDENT BY : SHRI GOUTAM MONDAL, SR. D.R. ! ! ! ! /O R D E R PER SHRI MAHAVIR SINGH, JUDICIAL MEMBER / , : THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDE R OF COMMISSIONER OF INCOME-TAX (APPEALS), SILIGURI IN APPEAL NO. 150/CIT(A.)/SLG./ 06-07 DATED 23.04.2010. ASSESSMENT WAS FRAMED BY ITO, WD-1(3), SILIGURI FOR ASSESSMENT YEAR 2004-05 U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE ORDER DATED 16.11.2006 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(APPEALS) CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER ON ACCOUNT OF GIFTS RECEIVED FROM 14 DONORS UNDER SECTION 68 OF THE ACT BY TREATING T HE SAME AS UNEXPLAINED. FOR THIS, THE ASSESSEE HAS RAISED THE FOLLOWING TWO EFFECTIVE GRO UND NOS. 2 & 3:- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, BOTH THE LD. CIT(A.) AS WELL AS THE AO ERRED IN HAVING CONFIRMED AND ADDED A SUM OF RS.7,00,000/- RECEIVED BY WAY OF GIFT FROM F OURTEEN DIFFERENT PERSONS WHOSE IDENTITY, GENUINENESS AND CREDITWORTH INESS WERE PROVED BY ADDUCING NECESSARY EVIDENCE AND AFFIDAVIT S TO THE EFFECT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LOWER AUTHORITIES ERRED IN DISBELIEVING THE GENUINENESS O F THE GIFTS MAINLY ON THE GROUND THAT THE DONORS COULD NOT BE PRODUCED BEFORE THE ITA NO. 1479/KOL.2010 DIPALI GHOSH, ASSESSMENT YEAR 04-05 2 DEPARTMENTAL AUTHORITIES WHEN IT HAD ALREADY BEEN E XPLAINED THAT THE DONORS WERE LIVING IN DISTANT PLACES AND IF REQ UIRED, THE DEPARTMENT COULD HAVE ENFORCED ATTENDANCE BY USING THEIR PLENARY POWER. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEF FACTS ARE THAT THE ASSESSEE RECEIVED GI FTS OF RS.7,00,000/- FROM 14 DONORS. THE FOLLOWING ARE THE DETAILS OF 14 DONORS:- SL.. NO. NAME & ADDRESS OF THE DONOR GIFT AMOUNTS DATE OF GIFT SOURCE OF INCOME RETURNED INCOME 1. SMT. KALYANI DEVI GUPTA RS.50,000/- 01.09.2003 INCOME FROM OTHER SOURCES RS.49,240/- 2. SHRI SUBODH KUMAR DAS RS.50,000/- 01.09.2003 INCOME FROM OTHER SOURCES RS.48,540/- 3. SRI LAXMI NARAYAN DAS RS.50,000/- 01.09.2003 INCOME FROM OTHER SOURCES RS.49,140/- 4. SHRI TAPAN DAS RS.50,000/- 01.09.2003 SALARY & OTHER SOURCE RS.46,540/- 5. SHRI L. SUROJIT NANDY RS.50,000/- 01.09.2003 SALARY & OTHER SOURCE RS.48,000/- 6. SMT. RASHMI LAKHOTIA RS.50,000/- 04.03.2004 INCOME FROM OTHER SOURCES RS.48,150/- 7. SHRI MONOHAR THAKKER RS.50,000/- 04.03.2004 INCOME FROM OTHER SOURCES RS.47,750/- 8. SMT. RENU GUPTA RS.50,000/- 04.03.2004 INCOME FR OM OTHER SOURCES RS.54,850/- 9. SHRI JEETENDER PD. GUPTA RS.50,000/- 16.01.2004 INCOME FROM OTHER SOURCES RS.48,100/- 10. SHRI BENIPRASAD GHOSH RS.50,000/- 16.01.2004 SALARY & OTHER SOURCE RS.61,390/- 11. SHRI AJAY KUMAR ROY RS.50,000/- 01.09.2003 INCOME FROM OTHER SOURCES RS.48,830/- 12. SRI ANAND PD. RS.50,000/- 04.03.2004 INCOME FRO M RS.47,020/- ITA NO. 1479/KOL.2010 DIPALI GHOSH, ASSESSMENT YEAR 04-05 3 GUPTA OTHER SOURCES 13. SMT. RAJ KUMARI CHOUDHURY RS.50,000/- 04.03.2004 INCOME FROM OTHER SOURCES RS.56,380/- 14. SRI BHAGWATI PD. GUPTA RS.50,000/- 04.03.2004 INCOME FROM OTHER SOURCES RS.49,470/- 4. BEFORE THE ASSESSING OFFICER, THE ASSESSEE FILED CONFIRMATIONS IN THE SHAPE OF AFFIDAVITS, ACKNOWLEDGMENTS OF RETURNS AND COPIES O F PROFIT & LOSS A/CS. AND BALANCE- SHEETS OF THESE DONORS. THE ASSESSEE HAS FILED COMP LETE ADDRESSES OF THE DONORS IN THE AFFIDAVIT AS WELL AS THEIR CONFIRMATIONS. THE ASSES SING OFFICER ADDED CASH GIFTS OF RS.50,000/- FROM EACH OF 14 DONORS BY STATING THAT THESE DONORS ARE NOT RELATIVE OF THE ASSESSEE EITHER BY MARRIAGE OR BY BLOOD RELATION AN D ACCORDINGLY BY GOING INTO THE AMOUNT OF INCOME, SOURCE THEREOF AND NATURE OF ACTI VITIES OF DONORS AND FINANCIAL STATUS, THESE DONORS DO NOT POSSESS ANY CREDITWORTHINESS TO HAVE MADE SUCH GIFTS TO THE ASSESSEE. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PROD UCE THESE CREDITORS BUT THE ASSESSEE STATED THAT SINCE ALL THE DONORS RESIDE AT KOLKATA, THEREFORE, IT IS VERY DIFFICULT FOR HER TO PRODUCE THEM FOR DEPOSITION AT SILIGURI. ACCORDINGL Y, THE ASSESSING OFFICER TREATED THESE CASH GIFTS FROM 14 DONORS AS UNEXPLAINED AND ADDED TO THE RETURNED INCOME OF THE ASSESSEE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFO RE CIT(APPEALS), WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 5. WE FIND THAT THE ASSESSEE BEFORE THE ASSESSING O FFICER, CIT(APPEALS) AND EVEN NOW BEFORE US FILED COPIES OF AFFIDAVITS CONFIRMING GIFTS, COPIES OF ACKNOWLEDGMENT OF ACCOUNTS, PROFIT & LOSS A/CS. AND BALANCE-SHEETS BY EACH OF 14 DONORS. WE FIND FROM THESE DOCUMENTS FILED IN THE ASSESSEES PAPER BOOK CONSISTS OF PAGES 1 TO 36, EXPLAINING THE SOURCES OF GIFTS. THE GIFT IS GIVEN OUT OF THE CAPITAL AS NOTED IN THE BALANCE-SHEETS OF THE RESPECTIVE DONORS. THE ASSESSEE FILED COMPLETE ADDRESS CONFIRMING THESE GIFTS. ONCE THE ASSESSEE HAS DISCHARGED ITS ONUS AND THE ASSESS ING OFFICER WANTS TO EXAMINE THE DONORS, THE ASSESSING OFFICER SHOULD HAVE ISSUED SU MMONS TO THESE PARTIES UNDER SECTION 131 OF THE ACT, AS THE ASSESSEE IS BASED IN SILIGUR I AND THESE DONORS ARE BASED IN KOLKATA. WE FIND THAT THE ASSESSEE HAS DISCHARGED HIS ONUS A ND REVENUE COULD NOT EXAMINE THESE ITA NO. 1479/KOL.2010 DIPALI GHOSH, ASSESSMENT YEAR 04-05 4 CREDITORS INSPITE OF THE FACT THAT IT WAS HAVING NA MES AND ADDRESSES OF THESE DONORS INCLUDING INCOME-TAX PARTICULARS. WE FIND THAT THIS ISSUE IS COVERED BY THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT, ORISSA VS.- ORISSA CORPORATION P. LTD. REPORTED IN (1986) 159 ITR 78, WHEREIN HONBLE APEX COURT HE LD THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CR EDITORS. IT WAS IN THE KNOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME-TAX ASSESSEES. THEIR INDEX NUMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE, APART FROM ISSUING NOTICES UNDER SECTION 131 AT THE INSTANCE OF THE RESPONDENT, DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CR EDITORS TO FIND OUT WHETHER THEY WERE CREDITWORTHY. THERE WAS NO EFFORT MADE TO PURSUE TH E SO-CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE RESPONDENT COULD NOT DO ANYTHING FURTHER. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE RESPONDENT HAD DISCHARGED THE BURDEN THAT LAY ON IT, THEN IT COULD NOT BE SAID THAT SUCH A CONCLU SION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. IF THE CONCLUSION WAS BASED O N SOME EVIDENCE ON WHICH A CONCLUSION COULD BE ARRIVED AT, NO QUESTION OF LAW AS SUCH AROSE. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ORISSA CORPORATION P. LTD. (SUPRA) AND THE FACTS OF THIS CASE, WE ALLOW THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 24.6.2011 SD/- SD/- [C. D. RAO ( . . )] [ MAH AVIR SINGH / ] ACCOUNTANT MEMBER/ JUDICIAL MEMBER/ ] DATED : 24 / 06/ 2011 ITA NO. 1479/KOL.2010 DIPALI GHOSH, ASSESSMENT YEAR 04-05 5 COPY OF THE ORDER FORWARDED TO: 1. MRS. DIPALI GHOSH, SHIV MANDIR, P.O. KADAMTALA, DI ST. DARJEELING. 2. ITO, WARD-1(3), SILIGURI. 3. CIT(APPEALS)- , SILIGURI 4 . CIT- , KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR I.T.A.T., KOLKATA. LAHA, SR. P.S.