ITO, Ward - 3(4), Purulia V. Suman S. Sarawgi, Purulia

ITA 1632/KOL/2009

• Counselvise Citation: 163223514 RSA 2009
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 13-07-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 18-09-2009
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: SUBASH AGARWAL
• Keywords: Gift; Opportunity of being heard
• Section: 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , ,, , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / ITA NO . 1632/KOL/2009 %& '(/ ASSESSMENT YEAR : 2006-07 (*+ / APPELLANT ) I.T.O., WARD-3(4), PURULIA. - % - - VERSUS - . (-.*+/ RESPONDENT ) SUMAN S.SWARAWGI (PAN: ATWPS 3427 N) *+ / 0 '/ FOR THE APPELLANT: SHRI S.K.ROY -.*+ / 0 '/ FOR THE RESPONDENT: SHRI SUBASH AGARWAL 1%2 / !# /DATE OF HEARING : 25.01.2012. 3' / !# /DATE OF PRONOUNCEMENT : 25.01.2012. '4 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY REVENUE AGAINST THE ORDER DATED 07.07.2009 OF THE LD. CIT(A)-ASANSOL PERTAINING TO A.YR. 2006-07. 2. THE ONLY ISSUE RAISED BY THE REVENUE IS RELATIN G TO DELETION OF ADDITION OF RS.12,05,000/- MADE U/S 68 OF THE I.T.ACT. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT WHILE DO ING THE SCRUTINY ASSESSMENT THE ASSESSING OFFICER OBSERVED THAT DURING THE PREVIOUS YEAR THE ASSESSEE HAD RECEIVED GIFTS FROM SHRI SATYA PRAKASH PODDAR TOTAL AMOUNTING TO RS.12,05,000/- AND CREDIT ED IN HER BANK ACCOUNT NO.1602016976 ON 16/04/2005 RS.1,00,000/- ON 16/05/ 2005 RS.75,000/- ON 10/08/2005 RS.30,000/-, ON 13/10/2005 RS.5,00,000/- AND ON 31/10/205 RS/5,00,000/- . TO VERIFY THE IDENTITY, GENUINENESS OF TRANSACTIO N AND CREDITWORTHINESS OF THE DONOR 2 THE A/R WAS REQUESTED TO PRODUCE SHRI SATYA PRAKASH PODDAR, THE ALLEGED DONOR, ALONG WITH THE STATEMENTS OF ALL THE BANK ACCOUNTS STANDI NG IN HIS NAME INCLUDING THE BANK ACCOUNT THROUGH WHICH THE TRANSACTION OF ALLEGED GI FT TOOK PLACE, FOR THE FINANCIAL YEARS 2003-04 TO 2005-06 AND BALANCE SHEETS AS ON 3 1-03-2004, 31-032005 AND 31- 03-2006 WITHIN FIFTEEN DAYS FORM 05-09-2008, BUT HE FAILED TO DO SO. THEREAFTER, ON 24-09-2008 ANOTHER TWENTY DAYS TIME WAS GIVEN, TO C OMPLY BUT ON 16-10-2008 THE A/R STATED THAT NOTHING COULD BE PRODUCED. 3.1. IN ORDER TO ASCERTAIN THE GENUINENESS, CREDITW ORTHINESS AS WELL AS IDENTITY OF THE DONORS HE HAS GIVEN SEVERAL OPPORTUNITIES AS DISCUS SED IN PAGES 2,3 AND 4OF THE ASSESSMENT ORDER AND HE FINALLY CONCLUDED THAT AFTER CAREFUL CONSIDERATION OF THE ABOVE FACTS AND CIRCUMSTANCES, I HOLD THAT ALLEGED GIFT AMOUNTS RECEIVED FORM SHRI SATYA PRAKASH PODDA R WAS HER UNDISCLOSED INCOME INTRODUCED IN HER BOOKS IN THE GUISE OF GIFT AND HE NCE HAVE DECIDED TO ADD THE CREDITS IN HER SB ACCOUNT NUMBER 1602016976 AT ORIENTAL BAN K OF COMMERCE, KOLKATA, ON 16/04/2005 RS.1,00,000/-, ON 16/05/2005 RS.75,000/- , ON 10/08/2005 RS.30,000/-, ON 13/10/2005 RS.5,00,000/- AND ON 31/10/2005 RS.5,00, 000/- TOTAL AMOUNTING RS.12,05,000/-, TO THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 68 OF I.T.ACT, 1961. PENALTY US 271(1)(C) HAS BEEN INITIATED SEPARATELY. 3.2. ON APPEAL THE LD. CIT(A), AFTER TAKING INTO CO NSIDERATION OF THE VARIOUS CASE LAWS, DELETED THE SAME BYOBSERVING AS UNDER :-` IN THE PRESENT CASE ALSO IT APPEARS THAT THE GIFT WAS GENUINE ON THE BASIS OF VARIOUS DOCUMENTARY EVIDENCES FURNISHED BY THE APPELLANT. H ENCE A.O. WAS NOT JUSTIFIED IN HIS ACTION AS PER THE DECISION OF HONBLE M.P. HIGH COURT. IN MY CONSIDERED VIEW THE APPELLANT SUCCEEDED TO EX PLAIN EVEN THE SOURCE OF SOURCE I.E. OF THE DONOR IN QUESTION WHO WAS THE FA THER OF THE APPELLANT AND THE A. 0. HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SUGGEST T HAT THE AMOUNT OF GIFT ORIGINATED FROM THE APPELLANT. I AM ALSO AGREEABLE TO THE APPELLANT THAT THE GENUI NENESS OF GIFT IS NOT IN DOUBT AS THE TRANSACTIONS ARE THROUGH BANKS AND CANNOT BE FALSE AND THE DONOR HAS ALSO FILED THE AFFIDAVIT, DECLARATION OF GIFT AND VARIOUS EVID ENCES TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF GIFT TRANSACTIO N AS DISCUSSED BY ME IN MY EARLIER PARAGRAPH. TAKING THE TOTAL FACTS & CIRCUMSTANCES OF THE CASE, IN MY CONSIDERED VIEW, THE A. 0. IN LAW WAS ALSO NOT JUSTIFIED IN MAKING THE A DDITION OF THE GIFT AMOUNTING TO RS. 12,05,000/- AS UNDISCLOSED INCOME OF THE APPELLANT. 3.3. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEF ORE US. 4. AT THE TIME OF HEARING BEFORE US, THE LD. DR APP EARING ON BEHALF OF THE REVENUE HAS REITERATED THE OBSERVATIONS MADE BY AO IN THE A SSESSMENT ORDER AND FURTHER COMMENTED ON THE CERTIFICATES ISSUED BY THE BANKERS REGARDING CREDITWORTHINESS OF THE 3 DONORS WHICH WAS PLACED AT PAGES 47 AND 48 OF THE P APER BOOK AND CONTENDED THAT BOTH THESE BANK CERTIFICATES HAVE CERTIFIED THAT SH RI SATYA PRAKASH PODDAR AND MRS.MOHINI DEVI PODDAR ARE VALUABLE CLIENTS AND AVA ILING THE CREDIT FACILITIES FROM THE SAID BANKERS. THIS DOES NOT ESTABLISH THE CREDITWOR THINESS OF THE DONORS. THEREFORE HE REQUESTED TO SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THAT OF AO. 5. ON THE OTHER HAND, THE LD. COUNSEL APPEARING ON BEHALF OF ASSESSEE HAS RELIED ON THE ORDERS OF THE LD. CIT(A) AND FURTHER CONTENDED THAT SINCE THE BANKERS HAS CERTIFIED THAT BOTH THE DONORS ARE CONSIDERED TO BE FINANCIAL LY SOUND AND ENJOY A GOOD REPUTATION IN THE MARKET. THIS WILL PROVE THE CREDI TWORTHINESS OF THE DONORS. 5.1. WHEN THE BENCH ASKED SPECIFICALLY THE BANK ACC OUNT OF THE DONORS THE LD. COUNSEL FOR ASSESSEE WAS UNABLE TO PRODUCE THE SAME . HOWEVER, HE REQUESTED THAT IF THE MATTER MAY BE SET ASIDE TO THE FILE OF AO HE WI LL CONVINCE THE CREDITWORTHINESS OF THE DONORS BEFORE AO. 5.2. IN THE REBUTTAL THE LD. DR FOR THE REVENUE COU LD NOT OBJECT FOR THE SAID REQUEST OF THE LD. COUNSEL FOR ASSESSEE. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF AO TO DE CIDE THE SAME AS PER LAW AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE . 7. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. 5 6 789 :#/ ;<' ' => ? 9 @ A '4 '4 '4 '4 #1' #1' #1' #1' B 1% 9 C !# B 1% 9 C !# B 1% 9 C !# B 1% 9 C !# 25.01.2012. ORDER PRONOUNCED IN THE OPEN COURT ON 25.01.2012. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , , , , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 25.01.2012. R.G.(.P.S.) 4 '4 / -7 D'7'6- COPY OF THE ORDER FORWARDED TO: 1. SUMAN S.SARAWGI, C/O M/S. VANDANA MAIN ROAD, P.O. & DIST.PURULIA, PIN- 7232101. 2 THE I.T.O., WARD-3(4), PURULIA. 3. THE CIT, 4. THE CIT(A)-ASANSOL. 5. DR, KOLKATA BENCHES, KOLKATA .7 -/ TRUE COPY, '4%1/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES