K.Gandhi, Coimbatore V. ITO, Coimbatore

ITA 1520/CHNY/2012

• Counselvise Citation: 152021714 RSA 2012
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 09-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 02-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR
• Assessee Lawyers: K RAGHU
• Keywords: Gift; Revised return
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D B ENCH C HENN AI BEFORE SHRI ABRAHAM P GEORGE ACCOUNTANT MEMBER AND SHRI S.S.GODARA , JUDICIAL MEMBER .. ITA NO. 1520 /MDS./ 20 12 ASSESSMENT YEAR: 200 8 - 2009 K.GANDHI, 214,PALANISAMY COLONY, COIMBATORE 641 0 01. VS. THE INCOME TAX OFFICER, WARD III(3), COIMBATORE. PAN ACLPG 0303 R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.RAGHU, C.A. RESPONDENT BY : SHRI K E B RENGARAJAN JR.STANDING COUNSEL DATE OF HEARING : 09 . 1 0.12 DATE OF PRONOUNCEMENT : 17 . 1 0.12 O R D E R PER S.S.GODARA JUDICIAL MEMBER : THIS ASSESSEE S APPEAL HAS BEEN PREFERRED AGAINST THE O RDER OF CIT(A) - 1, COIMBATORE DATED 21.06.2012 PASSED IN ITA NO.416/1 1 - 12 ARISING OUT OF PROCEEDINGS UNDER SECTION143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) . THE RELEVANT ASSESSMENT YEAR IS 2008 - 09 . ITA . 1520 /MDS/ 12 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE , AN INDIVIDUAL, HAD FILED HIS RETURN ADMITTING TOTAL INCOM E OF ` 4,55,430/ - ON 30.09.2008. POST - FILING OF RETURN I.E. ON 12.02.09, THE DEPARTMNET CARRIED OUT A SURVEY ON THE ASSESSEE UNDER SECTION 133A OF THE AC T LEADING TO RECOVERY OF DOCUMENTS REGARDING CERTAIN INVESTMENTS ALLEGED TO HAVE BEEN MADE BY THE ASSES SEE AND HIS FAMILY MEMBERS. AFTER COLLATING THE SAME, THE DEPARTMENT ALLEGEDLY CAME TO A CONCLUSION THAT ASSESSEE S TOTAL INVESTMENTS HAD NOT BEEN ADMITTED BY THE ASSESSEE IN HIS RETURN OF INCOME ALREADY FILED AND HE HAD ALSO NOT DISCLOSED THE CORRECT I NCOME IN THE RETURN ALREADY FILED . 3. POST SURVEY , THE ASSESSEE FILED A REVISED RETURN ON 17.03.09. THIS TIME, HE ADMI TTED AN ADDITIONAL INCOME OF ` 98,7 00/ - FROM HOUSE PROPERTY AND ` 45 LAKHS FROM INCOME FROM OTHER SOURCES. A S THE RECORD REVEALS, THE ASSESSING OFFICER ISSUED A NOTICE TO THE ASSESSEE UNDER SECTION 143 (2) OF THE ACT. IN PURSUANCE, THE ASSESSEE SOUGHT TO JUSTIFY THE COMPUTATION OF ` 45 LAKHS AS ABOVE BY SUBMITTING DETAILS OF THE INVESTMENT S MADE . HOWEVER, THE ASSESSING OFFICER TREATE D THE SAME AS INCOME FROM OTHER SOURCES . ITA . 1520 /MDS/ 12 3 4. SIMILARLY, IN THE REVIS ED RETURN, THE ASSESSEE HAD ENCLOSED HIS BALANCE SHEET AS ON 31 ST MARCH, 2008 STATING SOME LIABILITIES UNDER TH E HEAD SUNDRY CREDITORS AS ` 1,50,11,506/ - . THE ASSESSING OFFICER SOUGH T DETAILS OF THE CREDITORS WITH IDENTITY AND CONFIRMATION FROM THE ASSESSEE . AS PER THE ASSESSMENT ORDER, THE ASSESSEE FURNISHED THE DETAILS SOUGHT ONLY QUA AN AMOUNT OF ` 1,26,58,715/ - . THE ASSESSING OFFICER ISSUED NOTICES TO 15 SUNDRY CREDITORS ON RAN DOM BASIS AND RECORDED THEIR STATEMENTS. IN HIS OPINION , SINCE THE ASSESSEE HAD NOT OFFERED ANY C ONFIRMATION QUA AN AMOUNT OF ` 23,52,791/ - I.E. ` 1,50,11,506/ - - ` 1,26,58,715/ - , THEREFORE, THE BALANCE AMOUNT ABOVE SAID, WAS ADDED IN THE ASSESSEE S TOTAL INCOME FOR WANT OF GENUINENESS. 5. FURTHER, THE ASSESSING OFFICER ALSO ADDED AN AMOUNT OF ` 2,50,000/ - QUA GIFT OF A SWIFT CAR , WHICH MADE BY THE ASSESSEE TO HIS SON - IN - LAW AT THE TIME OF HIS DAUGHTER S MARRIAGE WHEREIN , HE HAD BORNE 50% OF THE COST I.E ` 2,50,000/ - ON THE GROUND THAT THE ASSESSEE HAD NOT OFFERED THE S A ME IN HIS REVISED RETURN OF INCOME. 5.1. ACCORDINGLY, THE ASSESSING OFFICER MADE ADDITIONS OF ` 23,50,791/ - PERTAINED TO SUNDRY CREDITORS AND ` 2,50,000/ - QUA ITA . 1520 /MDS/ 12 4 THE 50% OF THE COST OF THE CAR GIFTED(SUPRA) IN THE ASSESSEE S INCOME RETURN ED VIDE ASSESSMENT ORDER DATED 21 ST DECEMBER, 2010. 6. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL WHEREIN HE CHALLENGED THE ACTION OF THE ASSESSING OFFICER IN TAKING RS.45 LAKHS AS INCOME FROM OTHE R SOURCES , ADDITION S OF ` 23,52,791/ - AND ` 2,50,000/ - AS ABOVE . THE CIT(A) HAS NOT MODIFIED THE FINDINGS OF THE ASSESSING AUTHORITY IN ANY OF THE GROUNDS. THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE A.R. REPRESENTING ASSESSEE HAS SUBMITTE D THAT THE CIT(A) HAS WRONGLY CONFIRMED THE FINDI NG OF THE ASSESSING AUTHORITY QUA ALL THREE SUBMISSIONS(SUPRA). HENCE, HE HAS PRAYED FOR ACCEPTANCE OF THE APPEAL. ON THE OTHER HAND, THE D.R REPRESENTING THE REVENUE HAS CHOSEN TO SUPPORT THE CIT(A) S O RDER ON ALL THE THREE GROUNDS(SUPRA). 8. WE HAVE HEARD BOTH PARTIES AT LENGTH QUA ALL GROUNDS. WE NOTICE FROM PERUSING THE ASSESSMENT ORDER AS WELL AS CIT(A) S ORDER THAT THE ASSESSEE HIMSELF HAD OFFERED AN AMOUNT OF ` 45,00,000/ - UNDER THE HEAD INCOME FROM OTHER SOURCES IN HIS ITA . 1520 /MDS/ 12 5 REVISED RETURN OF INCOME. SUBSEQUENTLY, HE TOOK A U TURN AND SOUGHT TO JUSTIFY THAT THE SAID AMOUNT WAS NOT COMPATI BLE WITH THE DETAILS OF INVESTMENTS MADE BY THE ASSESSEE IN THE NAME OF HIS FAMILY MEMBERS DURING THE PREVIO US YEAR RELEVANT TO THE ASSESSMENT YEAR. IN OUR OPINION, ONCE THE ASSESSEE HIMSELF HAS OFFERED THE AMOUNT OF ` 45,00,000/ - AS INCOME FROM OTHER S OURCES, THERE IS HARDLY JUSTIFICATION O N HIS PART TO FURTHER ENTANGLE THE SAID AMOUNT IN ANY DISPUTE BY RAI SING ONE PLEA OR THE OTHER. IT IS A TRITE PROPOSITION THAT WHEN THE ASSESSEE HIMSELF ADMITS AN INCOME UNDER A PARTICULAR HEAD AS STIPULATED UNDER THE PROVISIONS OF THE ACT, LATER ON, HE CANNOT DISPUTE HIS OWN SELF - ASSESSMENT. THEREFORE, WE SEE NO REASON TO INTERFERE QUA GRIEVANCE RAISED BY THE ASSESSEE REGARDING TREATMENT OF RS.45 LAKHS UNDER THE HEAD INCOME FROM OTHER SOURCES BY A.O. AS WELL AS CIT(A). 9. COMING TO SECOND SUBMISSION OF ASSESSEE THAT THE CIT(A) HAS WRONGLY CONFIRMED ADDITION OF ` 23,5 2,791/ - IN CASE OF SUNDRY CREDITORS, WE NOTICE THAT THE ASSESSING OFFICER HAD CHOSEN TO MAKE THE ADDITION FOR WANT OF GENUINENESS. FROM THE STATEMENT OF FACTS FILED BY THE ASSESSEE BEFORE THE CIT(A), IT EMERGES THAT THE ASSESSEE HAD FURNISHED A LIST OF 1 13 PERSONS, OUT OF WHICH THE ASSESSING OFFICER VERIFIED AT RANDOM ONLY 15 OF THEM AND ALSO ITA . 1520 /MDS/ 12 6 RECORDED THEIR STATEME NTS. THE ASSESSEE HAD FILED CONFIRMATION FROM 102 PERSONS . IT WAS THE CASE OF ASSESSEE THAT HE COULD NOT GET CONFIRMATION LETTER FROM 11 PER SONS FOR WANT OF SUFFICIENT TIME. FROM THE CIT(A) S ORDER, IT IS NOTICED THAT T HE SAID SUBMISSIONS HAVE NOWHERE BEEN DEALT WITH SP ECIFICALLY IN THE OPERATIVE PART . IN THE ABSENCE OF ANY REBUTTAL TO THE SAID FACTUAL SUBMISSION, WE TAKE IT AS ADMITT ED THA T THE ASSESSEE HAD FURNISHED A LIST OF ALL THE SUNDRY CREDITORS. BUT HE COULD NOT GET CONFIRMATION LETTER FROM 11 PERSONS FOR WANT OF SUFFICIENT TIME. IN THE LIGHT OF ABOVE FACTUAL POSITION , WE DEEM IT APPROPRIATE IN THE LARGER INTEREST OF JUSTICE THAT THE ASSESSING OFFICER SHALL RE - DECIDE THIS ASPECT OF THE MATTER IN ACCORDANCE WITH LAW BY AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE, WHO WOULD BE AT LIBERTY TO PRODUCE CONFIR MATIONS AND OTHER COGENT EVIDENCE REGARDING THE ADDITION OF ` 23, 52,791/ - . THEREFORE, THIS GROUND OF ADDITION OF SUNDRY CREDIT IS REMITTED BACK TO ASSESSING OFFICER WITH THE ABOVE DIRECTION S . 10. NOW COMING TO THE THIRD GROUND OF ADDITION OF ` 2.5 KAKHS(SUPRA) BETWEEN THE PARTIES. AS ALREADY STATED HEREINABOVE, ASSE SSING OFFICER HAD MADE ADDITION OF ` 2.5 LAKHS QUA 50% COST OF A SWIFT CAR GIFTED BY THE ASSESSEE TO HIS SON - IN - LAW AT THE TIME OF HIS DAUGHTER S MARRIAGE. PER ASSESSING OFFICER, ITA . 1520 /MDS/ 12 7 THE SAID AMOUNT OF ` 2.5 LAKHS HAD NOT BEEN OFFERED BY THE ASSESSEE WHILST F ILING REVISED RETURN. IT IS THE CASE OF ASSESSEE THAT IS ` 45 LAKHS AMOUNT WHICH HE HAD DISCLOSED AS INCOME FROM OTHER SOURCES (SUPRA), HE HAD ADMITTED AN AMOUNT OF ` 5,05,200/ - AS DAUGHTER S MARRIAGE EXPENSES. DURING THE COURSE OF HEARING BEFORE US AS WELL, THE A.R HAS REFERRED TO ASSESSEE S OWN STATEMENT RECORDED DURING SURVEY , WHICH READS AS UNDER: - MY DAUGHTER, KALPANA S ENGAGEMENT WAS CONDUCTED AT SUNDARAM HOTEL, D B ROAD, R S PURAM. HER MARRIAGE WAS CONDUCTED ON 02.09.2007 AT TIRUPATHI. REC EPTION WAS HELD THEREAFTER AT PADMAVATHI KALYANA MANDAPAM AT COIMBATORE. MY DAUGHTER WAS GIVEN 47 SOVEREIGNS OF GOLD. THE EXPENSES TOWARDS RENT AND FOOD, ETC AGGREGATED TO RS.3 ALKHS. TAKING CUE FROM THE STATEMENT, THE CONTENTION OF THE A.R. IS THAT OU T OF ` 5,05,200/ - , THE ASSESSEE HAD ROUGHLY ESTIMATED ` 3 LAKH S TOWARDS RENT AND FOOD AND BALANCE AMOUNT OF ` 2,05,000/ - TOWARDS THE CAR EXPENDITURE. WE NOTICE THAT NEITHER THE ASSESSING OFFICER NOR THE CIT(A) HAS CONSIDER ED THIS ASPECT OF THE MATTER. BE T HAT AS IT MAY , THERE IS NO DISPUTE ABOUT THE ABOVE SAID FACTUAL POSITION. HENCE, WE ARE OF THE VIEW THAT THE ASSESSEE HAD DULY DISCLOSED THE SAID AMOUNT OF ` 2.5 LAKHS ON ESTIMATE BASIS EVEN DURING SURVEY AS WELL AS IN THE RECEIVED ITA . 1520 /MDS/ 12 8 RETURN UNDER THE HEAD I NCOME FROM OTHER SOURCES . CONSEQUENTLY, WE SEE NO REASON TO SUSTAIN THE ADDITION IN QUESTION OF ` 2.5 LAKHS. ACCORDINGLY, THE SAME STANDS DELETED. 11 . T O SUM UP, THE INSTANT APPEAL IS PARTLY ALLOWED. ORDER P R ONOUNCED ON WEDNESDA Y , THE 17 TH OCTOBER , 2012 AT CHENNAI . SD/ - SD/ - (ABRAHAM P GEORGE ) ( S.S.GODARA ) ACCOUNTNT MEMBER JUDICIAL MEMBER CHENNAI, DATED 17 TH OCTOBER , 2012 . K S SUNDARAM COPY TO: ASSESSEE / AO / CIT (A) / CIT / D.R. / GUARD FILE ITA . 1520 /MDS/ 12 9