Subhashree Sundaray, Bhubaneswar V. ITO, Bhubaneswar

ITA 163/CTK/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7607 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-10-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 12-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUVENDU DUTTA
• Assessee Lawyers: P C SETHI
• Keywords: Gift; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N. S SAINI, ACCOUNTANT MEMBER ITA NO. 163/CTK/2014 ASSESSMENT YEAR :2010 - 2011 SUBHASHREE SUNDARAY, PLOT NO.171 (P), BAPUJI NAGAR, JANAPATH, BHUBANESWAR - 751009 VS. ITO, WARD - 1(2), BHUBANESWAR. PAN/GIR NO. CNBPS 2330 D (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.C.SETHI REVENUE BY : SHRI SUVENDU DUTTA DATE OF HEARING : 05 /10/ 2016 DATE OF PRONOUNCEMENT : 05 /10/ 2016 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A) - 1, BHUBANESWAR, DATED 28.2.2014 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LD CIT(A) HAS COMMITTED SERIOUS ERROR IN NOT DELETING THE ADDITION MADE BY THE AO AND FOR WHICH THE ENTIRE ADDITION IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND HAS BEEN PASSED IN GROSS VIOLATION TO THE PROVISIONS OF THE ACT AND IS LIABLE TO BE DELETED. 2. THAT THE LD CIT(A) HAS COMMITTED SERIOUS ERROR IN CONFIRMING THE ADDITION OF RS.18,98,800/ - AS UNEXPLAINED MONEY WHICH IS GIFT RECEIVED BY THE APPELLANT AT THE TIME OF MARRIAGE AND FOR WHICH SAME IS LIABLE TO BE QUASHED AND/OR ANNULLED. 2 ITA NO. 163/CTK/2014 ASSESSMENT YEAR :2010 - 2011 3. THE LD CIT(A) HAS COMMITTED SERIOUS ERROR IN CONFIRMING THE ADDITION OF RS.10 ,00,000/ - UNDER THE HEAD PURCHASE OF MUTUAL FUND AND SAME IS LIABLE TO BE DELETED. 4. THAT THE LD CIT(A) HAS COMMITTED SERIOUS ERROR IN NOT ACCEPTING THE EVIDENCE BY CITING RULE 46A OF THE I.T.RULES BEING AN ADDITIONAL EVIDENCE WHICH IS CONTRARY TO THE FA CTS AND CIRCUMSTANCES OF THE CASE AND FOR WHICH SAME IS LIABLE TO BE ACCEPTED. 5. THAT, THE APPELLANT MAY ADD, ALTER, DELETE OR MODIFY ANY OF THE GROUNDS WITH THE LEAVE OF THE HONBLE ITAT AT THE TIME OF HEARING OF THE MATTER. 3. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE APPEAL FILED BY THE ASSESSE BEFORE THE LD CIT(A) WAS DISMISSED BY HIM WITHOUT CONSIDERING THE ADDITIONAL EVIDENCES IN THE FORM OF AFFIDAVITS OF THE PERSONS WHO HAD GIVEN GIFTS IN CASH TO THE ASSESSEE AT THE MARRIA GE RECEPTION HELD ON 12.5.2009 AND 13.5.2009, WHERE THE ASSESSEE RECEIVED GIFTS OF RS.18,50,000/ - ON THE GROUND THAT SAID AFFIDAVITS WERE NOT FILED BEFORE THE ASSESSING OFFICER. IT WAS HIS PRAYER THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE LD CIT(A) TO RE - ADJUDICATE THE ISSUE OF ADDITION OF RS.18,98,800/ - AS UNEXPLAINED GIFTS RECEIVED AT THE TIME OF MARRIAGE AND ADDITION OF RS.10,00,000/ - UNDER THE HEAD PURCHASE OF MUTUAL FUNDS. 4. ON THE OTHER HAND, LD D.R. RELIED ON THE ORDERS OF LOWER A UTHORITIES AND SUBMITTED THAT IN SPITE OF SUFFICIENT OPPORTUNITIES GIVEN TO THE ASSESSEE, THE ASSESSEE FAILED TO PRODUCE EVIDENCES IN SUPPORT OF THE GIFTS RECEIVED ON THE OCCASION OF HER MARRIAGE BEFORE THE AO AND HENCE, THE LD CIT(A) IS JUSTIFIED IN NOT C ONSIDERING THE AFFIDAVITS OF THE DONORS WHO HAD GIVEN GIFTS TO THE ASSESSEE AND DISMISSING THE APPEAL OF THE ASSESSEE. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE AO FOUND THAT THE ASSESSEE HAD MADE CASH DEPOSIT OF RS.18,98,800/ - IN THE SAVING BANK ACCOUNT BUT COULD NOT PRODUCE ANY MATERIAL EVIDENCE TO SHOW THAT THEY WERE ON ACCOUNT OF GIFTS RECEIVED DURING HER MARRIAGE RECEPTION . THE AO A LSO FOUND THAT THE ASSESSEE HAD INVESTED RS.22,50,000/ - IN PURCHASE OF MUTUAL FUNDS COMPRISING OF BIRLA SUN LIFE MUTUAL FUND OF RS.5,00,000/ - , IN PURCHASE OF FIDELITY MUTUAL FUND OF RS.5,00,00 0 / - AND IN PURCHASE OF SUNDERAM BNP PARIBAS 3 ITA NO. 163/CTK/2014 ASSESSMENT YEAR :2010 - 2011 MUTUAL FUND OF RS .7,50000/ - AND COULD NOT EXPLAIN THE SOURCE OF THE SAME. HE, THEREFORE, ADDED RS.18,98,800/ - AND RS.22,50,000/ - TO THE INCOME OF THE ASSESSEE. 6. ON APPEAL, LD CIT(A) CONFIRMED THE ADDITION OF RS.18,98,800/ - ON ACCOUNT OF CASH DEPOSIT IN THE SAVING BANK ACCOUNT OF THE ASSESSEE BUT REDUCED THE ADDITION ON ACCOUNT OF INVESTMENT IN MUTUAL FUNDS TO RS.10,00,000/ - . 7. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 8. THE ONLY ARGUMENT OF THE LD A.R. OF THE ASSESSEE IS THAT THE LD CIT(A) DID NO T ACCEPT THE ADDITIONAL EVIDENCE IN THE FORM OF AFFIDAVITS OF THE GIVERS OF THE GIFTS FILED BEFORE HIM ON THE GROUND THAT THEY WERE ADDITIONAL EVIDENCE S AND COULD NOT BE ACCEPTED UNDER RULE 46A OF THE I.T.RULES AS THEY WERE NOT FILED BEFORE THE AO DURING T HE COURSE OF ASSESSMENT PROCEEDINGS. IT IS , THEREFORE, THE PRAYER OF THE ASSESSEE THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE LD CIT(A) TO CONSIDER THE AFFIDAVITS OF THE DONOR OF THE GIFTS AND THEREAFTER TO ADJUDICATE THE ISSUE OF ADDITION OF RS.18,98,800/ - AND RS.10,00,000/ - AFRESH. LD D.R. HAS SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 9. IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED VIEW THAT IN ORDER TO RENDER SUBSTANTIAL JUSTICE, THE ISSUE SHOULD BE REMANDED BACK TO THE FILE OF THE LD CIT (A) TO EXAMINE THE GIVERS OF THE GIFTS, WHO HAVE FILED AFFIDAVITS IN SUPPORT OF THE GIFTS GIVEN TO THE ASSESSEE ON ACCOUNT OF HER MARRIAGE AND THERE AFTER SHOULD RE - ADJUDICATE THE ISSUE AFRESH AS PER LAW AFTER ALLOWING REASONA BLE OPPORTUNITIES OF HEARING TO BOTH THE PARTIES. THUS, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 /10/2016 IN THE PRESENCE OF PARTIES. SD/ - ( N. S SAINI) A CCOUNTANT MEMBER 4 ITA NO. 163/CTK/2014 ASSESSMENT YEAR :2010 - 2011 CUTTACK; DATED 5 /10 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : SUBHASHREE SUNDARAY, PLOT NO.171 (P), BAPUJI NAGAR, JANAPATH, BHUBANESWAR - 751009 2. THE RESPONDENT. ITO, WARD - 1(2), BHUBANESWAR 3. THE CIT(A) - 1, , BHUBANESWAR. 4. CIT , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//