ITO, Ward - 1(4), Durgapur, Durgapur V. Sanjoy Kumar Roy, Durgapur

ITA 1534/KOL/2011

• Counselvise Citation: 153423514 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 11-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V A RAJU
• Assessee Lawyers: SOUMITRA CHOW DHURY
• Keywords: Gift; Business income; Onus to prove
• Section: 133(6)

Judgement Text

I.T.A. NO.: 1534 & 1535/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 6 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA CORAM : SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI ABRAHAM P. GEORGE (ACCOUNTANT MEMBER) I.T.A. NO.: 1534/KOL./ 2011 ASSESSMENT YEAR : 2008-2009 INCOME TAX OFFICER,................................ .............APPELLANT WARD-1(4),DURGAPUR, AAYAKAR BHAWAN, CITY CENTRE, DURGAPUR-16 -VS.- SANJAY KUMAR ROY,................................. ........................RESPONDENT C/O. ROY MITRA ENTERPRISES, BHIRINGHEE, DURGAPUR-713 213 [PAN : ACRPR 6999 N] & I.T.A. NO.: 1535/KOL./ 2011 ASSESSMENT YEAR : 2008-2009 INCOME TAX OFFICER,................................ .............APPELLANT WARD-1(4),DURGAPUR, AAYAKAR BHAWAN, CITY CENTRE, DURGAPUR-16 -VS.- PIJUSH SARKAR,..................................... ............................RESPONDENT C/O. ROY MITRA ENTERPRISES, BHIRINGHEE, DURGAPUR-713 213 [PAN : AJWPS 9055 N] APPEARANCES BY: SHRI V.A. RAJU, SR. D.R., FOR THE DEPARTMENT SHRI SOUMITRA CHOWDHURY, ADVOCATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : DECEMBER 11, 2013 DATE OF PRONOUNCING THE ORDER : DECEMBER 19, 2013 I.T.A. NO.: 1534 & 1535/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 6 2 O R D E R PER ABRAHAM P. GEROGE : 1. THESE ARE APPEALS OF THE REVENUE DIRECTED AGAINS T ORDERS DATED 09.08.2011 AND 08.10.2011 OF LD. CIT(APPEALS), DURG APUR FOR IMPUGNED ASSESSMENT YEAR. SINCE THE ASSESSEES IN BOTH THE CA SES ARE CLOSELY RELATED, THESE APPEALS ARE DISPOSED OF THROUGH A CONSOLIDATE D ORDER. 2. GROUND TAKEN BY THE REVENUE IN BOTH THESE APPEAL S ARE SIMILAR, WHICH READS AS UNDER :- THE LD. COMMISSIONER OF INCOME TAX (APPEALS), DURGAPUR ERRED IN DELETING A PART OF ADDITION ON AC COUNT OF GIFT BY ACCEPTING THE ASSESSEES STAND WITHOUT CONSIDERING THE FACTS THAT THE ONUS TO PROVE THE CREDITWORTHINESS, GENUINENESS AND IDENTITY OF THE D ONORS LIES WITH THE ASSESSEE. 3. FACTS APROPOS ARE THAT BOTH THE ASSESSEES WERE C IVIL CONTRACTORS AND ALSO DOING PURCHASE AND SALE OF BUILDING MATERI ALS. FOR THE IMPUGNED ASSESSMENT YEAR, THE ASSESSEE SHRI SANJAY KUMAR ROY FILED A RETURN SHOWING BUSINESS INCOME OF RS.4,51,128/- ON A TOTAL TURNOVER OF RS.1,95,54,382/-. OTHER ASSESSEE SHRI PIJUSH SARKAR DECLARED BUSINESS INCOME OF RS.4,40,870/- ON A TOTAL TURNOVER OF RS.1 ,87,04,337/-. BOTH THE ASSESSEES HAD CLAIMED RECEIPT OF GIFTS OF RS.18,00, 000/- EACH DURING THE RELEVANT PREVIOUS YEAR. THE GIFTS CLAIMED BY THE AS SESSEE SHRI SANJAY KUMAR ROY WERE AS UNDER :- SL. NO. NAME OF DONOR AMOUNT OF GIFT 1. BAMA PRASAD ROY 4,00,000/- 2. SUPARNA ROY 5,00,000/ - 3. UTTAM ROY 3,00,000/- 4. JOYETA ROY 5,00,000/- 5. TAPAS ROY 25,000/ - 6. NALINI MUKHERJEE 25,000/- 7. RANJAN BANERJEE 25,000/- 8. MANAS ROY 15,000/- 9. TAPAS MAJUMDAR 10,000/ - TOTAL 18,00,000/- 4. GIFTS CLAIMED BY THE ASSESSEE SHRI PIJUSH SARKAR WERE AS UNDER:- I.T.A. NO.: 1534 & 1535/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 6 3 SL. NO. NAME OF DONOR AMOUNT OF GIFT 1. SOURISH SARKAR 5,00,000/- 2. NITYANANDA SARKAR 4,00,000/ - 3. SHYAMALI SARKAR 3,00,000/- 4. CHUMKI SARKAR 5,00,000/- 5. KOUSHIK SARKAR 25,000/- 6. GOUTAM MONDAL 25,000/ - 7. TAPAS SAHA 25,000/- 8. MONORANJAN SAHA 15,000/- 9. DIPAK LAHIRI 10,000/ - TOTAL 18,00,000/- ASSESSING OFFICER WAS OF THE OPINION THAT ASSESSEES COULD NOT PROPERLY EXPLAIN AND ESTABLISH THE GENUINENESS OF THE ABOVEM ENTIONED GIFTS EXCEPT FOR A SUM OF RS.25,000/- AS GIFT RECEIVED FROM ONE SHRI KOUSHIK SARKAR BY SHRI PIJUSH SARKAR. HE, THEREFORE, MADE AN ADDITION OF RS.18,00,000/- IN THE CASE OF THE ASSESSEE SHRI SANJAY KUMAR ROY AND A SUM OF RS.17,75,000/- IN THE CASE OF ASSESSEE SHRI PIJUSH SARKAR. 5. AGGRIEVED FOR THE ABOVE ADDITIONS AND DISALLOWAN CES MADE, BOTH THE ASSESSES MOVED IN APPEAL BEFORE THE LD. CIT(APPEALS ). LD. CIT(APPEALS) AFTER VERIFYING THE CONFIRMATIONS AND BANK DOCUMENT ATION RELATING TO THE GIFTS DELETED THE ADDITIONS EXCEPT FOR THE SUM OF R S.3,00,000/- RECEIVED FROM SHRI UTTAM ROY, APPEARING AT SL. NO. 3 AND RS. 1,00,000/- RECEIVED FROM PERSONS LISTED AT SERIAL NUMBERS 5 TO 9 IN THE CASE OF ASSESSEE SHRI SANJAY KUMAR ROY. IN OTHER WORDS, HE DELETED THE AD DITION TO THE EXTENT OF RS.14 LAKHS. IN THE CASE OF ASSESSEE SHRI PIYUSH SARKAR, LD. CIT(APPEALS) ACCEPTED THE EXPLANATION OF THE ASSESSEE IN SO FAR AS THE SUM OF RS.12,00,000/- WAS CONCERNED AND SCALED DOWN THE AD DITION TO RS.5,75,000/-. IN OTHER WORDS ADDITION WAS CONFIRME D IN SO FAR PARTIES AT SL. NO. 1 AND 6 TO 9, ONLY. 6. NOW BEFORE US, LD. D.R. STRONGLY ASSAILING THE O RDER OF LD. CIT(APPEALS), TO THE EXTENT HE DELETED THE ADDITION S, SUBMITTED THAT THE ASSESSEES HAD NOT PROVED CREDITWORTHINESS, GENUINEN ESS AND IDENTITY OF I.T.A. NO.: 1534 & 1535/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 6 4 THE DONORS. LD. CIT(APPEALS) SIMPLY WENT ON SURMISE S AND GAVE CONSIDERABLE RELIEF TO THE ASSESSEES. AS AGAINST TH IS, LD. A.R. SUBMITTED THAT THE ADDITIONS WERE ALL SUSTAINED ONLY FOR A RE ASON THAT LETTERS UNDER SECTION 133(6) ISSUED WERE NOT REPLIED BY THE CONCE RNED PERSONS. ACCORDING TO HIM, CONFIRMATIONS FROM EACH OF THE PE RSONS WERE SUBMITTED, WHICH PROVED THE GENUINENESS OF GIFTS. L D. AR SUBMITTED THAT SMT. SUPARNA ROY WAS THE WIFE OF SHRI SANJAY KUMAR ROY, SHRI BAMA PRASAD ROY WAS THE BROTHER OF SHRI SANJAY KUMAR ROY , AND SMT. JOYETA ROU WAS DAUGHTER OF SHRI SANJAY KUMAR ROY. SIMILARL Y IN THE CASE OF PIYUSH SARKAR, SHRI NITYANANDA SARKAR WAS ELDER BRO THER OF SHRI PIYUSH SARKAR, SMT. SHYAMALI SARKAR WAS SISTER-IN-LAW AND SMT. CHUMKI SARKAR WAS THE DAUGHTER. THE DONORS WERE IDENTIFIED AND WE RE CLOSE RELATIVES OF THE ASSESSEES. ALL THESE DONORS WERE REGULAR ASSESS EES AND THEY WERE ALL ASSESSED TO TAX. THEIR PANS WERE ALSO FURNISHED. AC CORDING TO HIM, THERE WAS NO REASON WHY THE GIFTS WERE TREATED AS BOGUS A ND THE ADDITION MADE. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO GONE THROUGH THE PAPER BOOK FILED BY LD. A.R. WE FIND THAT OUT OF THE TOTAL ADDITION OF RS.18,00,000/- ADDED BY THE ASSESSING OFFICER AS BOGUS GIFTS IN THE HANDS O F THE ASSESSEE SHRI SANJAY KUMAR ROY, LD. CIT(APPEALS) DELETED A SUM OF RS.14,00,000/-. THE LIST OF PERSONS WHOSE GIFTS WERE CONSIDERED TO BE G ENUINE AND DELETED BY THE LD. CIT(APPEALS) IN THE CASE OF ASSESSEE SANJAY KUMAR ROY, WERE AS UNDER :- BAMA PRASAD ROY...............RS.4,00,000/- SUPARNA ROY.......................RS.5,00,000/- JOYETA ROY..........................RS.5,00,000/- ___________________ TOTAL : RS.14,00,000/- ___________________ IN THE CASE OF ASSESSEE SHRI PIYUSH SARKAR, OUT OF THE TOTAL ADDITION OF RS.17,75,000/- MADE BY THE ASSESSING OFFICER, LD. C IT(APPEALS) SUSTAINED I.T.A. NO.: 1534 & 1535/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 6 5 ONLY TO RS.5,75,000/-. IN OTHER WORDS, HE DELETED T HE ADDITIONS OF RS.12,00,000/-. THE LIST OF PERSONS WHOSE GIFTS WER E CONSIDERED TO BE GENUINE BY THE LD. CIT(APPEALS) ARE AS UNDER :- NITYANANDA SARKAR..................RS.4,00,000/- SHYAMALI SARKAR......................RS.3,00,000/ - CHUMKI SARKAR.........................RS.5,00,000 /- ______________________ TOTAL : RS.12,00,000/- _______________________ IN THE CASE OF ASSESSEE SHRI SANJAY KUMAR ROY, SHRI BAMA PRASAD ROY IS ADMITTEDLY THE BROTHER OF ASSESSEE, SMT. SUBRATA RO Y HIS WIFE, AND JOYETA ROY HIS DAUGHTER. THE QUESTION OF THEIR WHEREABOUTS BEING CONSIDERED AS UNKNOWN DOES NOT THEREFORE ARISE. LD. CIT(APPEALS) HAS GIVEN A CLEAR FINDING THAT INCOME-TAX RETURNS WERE FILED BY THESE PERSONS AND OFFICIAL DATA BASE REFLECTED THEIR ADDRESSES. ASSESSING OFFI CER DID NOT CHALLENGE THE IDENTITY. HE HAD MADE THE ADDITION ONLY ON THE BASIS OF LACK OF CREDITWORTHINESS. HOWEVER, REVENUE HAS NOT BEEN ABL E TO REBUT THE FINDING OF LD. CIT(APPEALS) THAT THERE WERE SUBSTAN TIAL CASH BALANCE OF CAPITAL A/C. OF THESE PARTIES AS ON 31.03.2007. COR PUS WAS AVAILABLE WITH THESE PERSONS AND, THEREFORE, GIFTS MADE OUT OF THE PARTIES COULD NOT HAVE BEEN DISBELIEVED ESPECIALLY SINCE THEY WERE CLOSE R ELATIVE. SIMILARLY IN THE CASE OF ASSESSEE SHRI PIYUSH SARKAR, SHRI NITYA NANDA SARKAR WAS HIS ELDER BROTHER, SMT. SHYAMALI SARKAR WAS HIS SISTER- IN-LAW AND CHUMKI SARKAR IS HIS DAUGHTER. THEREFORE, IT COULD NOT BE SAID THAT THESE PERSONS WERE UNKNOWN TO ASSESSEE. THEY WERE FILING INCOME T AX RETURNS. LD. CIT(APPEALS) HAS GIVEN A CLEAR FINDING THAT THERE W AS SUFFICIENT CORPUS IN THEIR CAPITAL A/C. THEIR IDENTITY AND GENUINENESS H AVE BEEN PROVED. THEIR CREDITWORTHINESS CANNOT BE DOUBTED. THEY WERE ALL C LOSE RELATIVES OF THE CONCERNED ASSESSEES. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT LD. CIT(APPEALS) WAS JUSTIFIED IN SCALING DOWN THE ADDITION AND SUSTAINING IT ONLY TO THE EXTENT WHERE ASSESSEES WERE UNABLE T O SUBSTANTIATE THE I.T.A. NO.: 1534 & 1535/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 6 6 GIFTS. WE, THEREFORE, DO NOT FIND ANY REASON TO INT ERFERE WITH THE ORDER OF LD. CIT(APPEALS). 8. IN THE RESULT, APPEALS OF THE REVENUE STAND DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DAY OF DECEMBER, 2013. SD/- SD/- MAHAVIR SINGH ABRAHAM P. GEORGE (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 19 TH DAY OF DECEMBER, 2013 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT(APPEALS) (4) CIT (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.