Maqsood Ali, CHENNAI V. ITO, CHENNAI

ITA 1638/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8198 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 01-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 02-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Keywords: Gift
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

, C/SMC , IN THE INCOME TAX APPELLATE TRIBUNAL C/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ./ I.T.A.NO.1638/MDS/2016 ( / ASSESSMENT YEAR :2008-09) MR.MIR MAQSOOD ALI, FLAT NO.B-408, A.K.S.SERENITY, NO.83, ISHWARYA NAGAR, KEEL AYANAMBAKKAM, CHENNAI-600 095. VS. THE INCOME TAX OFFICER, NON-CORPORATE WARD 21(2), CHENNAI-600 034. PAN:AFZPM 0276 N ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MR. S. SEETHARAMAN , CA / RESPONDENT BY : MR. SHIVA SRINIVAS , JCIT ! ' #$ / DATE OF HEARING : 0 1 . 1 2 .201 6 %& #$ /DATE OF PRONOUNCEMENT : 09 . 0 1 .201 7 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED B Y THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-9, CHENNA I, DATED ITA NO.1638/MDS/2016 :-2-: 21.03.2016 IN ITA NO.18/CIT(A)-9/2011-12 PASSED U/S .143(3) OF THE ACT. 2. THE GRIEVANCE OF THE ASSESSEE IS WITH REGARD TO SUSTAINING ADDITION OF ` 10,26,000/- TOWARDS UNEXPLAINED DEPOSITS IN THE BAN K ACCOUNT. 3. THE LD.A.R SUBMITTED THAT THE ASSESSEE SOLD ONE SANTRO CAR FOR AN AMOUNT OF ` 3.24 LAKHS AND ALSO RECEIVED GIFT OF ` 3 LAKHS FROM MOTHER-IN-LAW AND OF ` 3.5 LAKHS FROM BROTHER-IN-LAW. FURTHER, IT WAS SUBMITTED THAT THE ASSESSEE FILED AFFIDAVITS FROM T HESE TWO PARTIES FURNISHING GIFT TO THE ASSESSEES WIFE. THE AO MADE AN ADDITION OF ` 10,26,000/-AS UNEXPLAINED. AGGRIEVED, THE ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). 3.1 ON APPEAL, THE ASSESSEE SUBMITTED WRITTEN SUBM ISSIONS AND DOCUMENTS, WHICH WERE FORWARDED TO AO FOR HIS COMME NTS. HOWEVER, THE DEPARTMENT DISBELIEVED THE ASSESSEES SUBMISSION AND OBSERVING THAT:- (A) THE AO DURING THE REMAND PROCEEDINGS CALLED FOR PAN, COPY OF RETURN OF INCOME, COPY OF BANK ACCOUNTS AND COPY OF PROPERTY ITA NO.1638/MDS/2016 :-3-: DOCUMENTS INCLUDING PATTA NO. 1075, 536 AND JOINT P ATTA 302, ETC. OF THE ASSESSEES WIFE, ASSESSES WIFES MOTHER AN D ASSESSEES WIFES BROTHERS TO VERIFY THE DETAILS FURNISHED BY THE AR IN. THE WRITTEN SUBMISSION. INSPITE OF SEVERAL OPPORTUNITIE S GIVEN, THE AR HAS NOT PRODUCED THEM. (B) THERE IS NO PROOF THAT THE ASSESSEE WAS LIVING IN JOINT FAMILY. (C) THERE IS NO PROOF FOR CASH WITHDRAWALS IN EARLI ER PERIOD, ITS SAFE CUSTODY AND ALLEGED REDEPOSIT. (D) GROSS INCOME IS ONLY FEW LAKHS. THE DEPOSITS DO NOT COMMENSURATE WITH HIS INCOME AND SO THEY REMAIN UNEXPLAINED. (E) DETAILS OF FAMILY EXPENSES HAVE NOT BEEN FURNIS HED. (F) SWORN AFFIDAVITS OF ASSESSEES WIFES MOTHER AN D BROTHER ARE NOT ACCEPTABLE AS DETAILS REGARDING THEIR CREDIT-WORTHI NESS HAVE NOT BEEN FURNISHED. (G) NO RELIABLE PROOF FOR THE SOURCE OF CASH ALLEGE D TO HAVE BEEN GIVEN BY WIFE PRODUCED. (H) ONUS IS ON THE ASSESSEE TO PROVE THE SOURCE FOR DEPOSITS. ASSESSEE HAS NOT DISCHARGED THIS ONUS. 3.2 ACCORDING TO LD.A.R, THE ASSESSEE DISCHARGED THE BURDEN CAUST UPON HIM. IF THE DEPARTMENT HAVE ANY DOUBT, IT WOULD HAVE VERIFIED FROM THE PARTIES. WITHOUT VERIFYING FROM T HE CONCERNED OWNER/PARTY, THE CIT(A) CONFIRMED THE ADDITION, WHI CH MAY BE DELETED. ITA NO.1638/MDS/2016 :-4-: 3.2.1 REGARDING SALE OF CAR, THE ASSESSEE HAS FU RNISHED COPY OF DELIVERY NOTE BY T.S.MAHALINGAM & SONS (CAR DEALER) DATED 05.06.2007 TO THE AO, WHICH WAS NOT PROPERLY CONSID ERED BY THE AO. HE SUBMITTED THAT THE ADDITION TO BE DELETED. 4. ON THE OTHER HAND, LD.D.R RELIED ON THE ORDER O F LOWER AUTHORITIES. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY IN THIS CASE THE ASSESSEE HAS FI LED AFFIDAVITS FROM THE DONOR CONFIRMING THE GIFT FROM THOSE PARTIES, W HICH IS AVAILABLE ON RECORD. THE LOWER AUTHORITIES WITHOUT EXAMINING TH E PARTIES CONCERNED SUSTAINED THE ADDITION, WHICH IS NOT PROP ER. IN OUR OPINION, THE ASSESSEE DISCHARGED THE PRIMARY BURDEN CAUST UPON HIM AND IF THEY HAVE DOUBT, IT SHOULD HAVE BEEN VERIFIE D. ACCORDINGLY, IN THE INTEREST OF JUSTICE, WE REMIT THE ISSUE TO THE FILE OF AO WITH A DIRECTION TO EXAMINE THE DONORS, WHO HAVE GIVEN THE GIFT TO THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE IN ACCORDA NCE WITH LAW. 5.1 REGARDING SALE OF CAR, THE ASSESSEE SHALL PROD UCE NECESSARY RTO DOCUMENTS AND PROOF OF RECEIPTS OF ` 3.25 LAKHS FROM THE ITA NO.1638/MDS/2016 :-5-: PURCHASER OF THE CAR. ACCORDINGLY, THIS ISSUE IS RE MITTED BACK TO THE FILE OF AO FOR FRESH CONSIDERATION. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH JANUARY, 2017 AT CHENNAI. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 09 TH JANUARY, 2017. K S SUNDARAM. ' #)* +*# / COPY TO: 1 . / APPELLANT 3. ! ,# () / CIT(A) 5. */0 #1 / DR 2. / RESPONDENT 4. ! ,# / CIT 6. 02 3' / GF