Sri Hrusikesh Das, Bhubaneswar V. ITO, Ward-2(3), Bhubaneswar, Bhubaneswar

ITA 166/CTK/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77552 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 13-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: HRUSIKESH DAS
• Keywords: Gift; Salary income; Question of law
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 166 /CTK/2013 (ASSESSMENT YEAR - 2009 - 10 ) SRI HRUSIKESH DAS, MIG - 6 BRIT COLONY, LAXMI SAGAR, BHUBANESWAR, PIN - 751006 PAN:AAACE8969R (APPELLANT) VS. THE INCOME TAX OFFICER, WARD - 2(3), BHUBANESWAR (RESPONDENT) APPELLANT BY : SH RI HRUSIKESH DAS, ASSESSEE RESPONDENT BY : SHRI S.C. MOHA N TY , D R DATE OF HEARING : 01/05/2014 DATE OF PRONOUNCEMENT : 13 /06/2014 O R D E R PER: D.T. GARASIA THIS APPEAL HAS BEEN FILED BY T HE DEPARTMENT AGAINST THE ORDER OF CIT(A) - BHUBANESWAR, DATED 21.01.2013 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE FOLLOWING GROUNDS ARE RAISED IN THIS APPEAL AS UNDER. 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II IS NOT JUSTIFIED IN CO NFIRMING THE ADDITION OF RS.26,50, 000/ - MADE BY A.O. 2. THAT THE LD. C.I.T(APPEALS) - II HAS ERRED IN LAW AND ON FACTS IN NOT ACCEPTING THE CASH DEPOSITS IN THE FORM OF GIFTS RECEIVED FROM MOTHER OF THE APPELLANT AS THE ONUS IS DISCHARGED BY THE APPELLANT IN FURNISHING CONFIRMATION LETTER AS WELL AS AFFIDAVIT. 3.THAT THE LD. C.I.T(APPEALS) - II IS NOT JUSTIFIED IN DISBELIE VING THE APPELLANTS SUBMISSION WITH DOCUMENTARY EVIDENCE BEFORE THE A.O. AND THE ONUS IS ON THE DEPARTMENT TO PROVE THAT THE GIFTS MADE BY THE MOTHER OF THE APPELLANT ARE NOT GENUINE ON THE FACTS OF THE CASE. 4.THAT THE LD. C.I.T(APPALS) - II SHOULD HAVE G IVEN AN OPPORTUNITY TO CROSS EXAMINE THE POSTMASTERS CONCERNED REGARDING NOT POSSESSING KISAN VIKASH PATRA AND PERSONS CONCERNED REGARDING NON EXISTENCE OF BUSINESS WITH AGRICULTURAL ACTIVITY OF THE APPELLANT AT BETNOTI AREA AS REPORTED BY THE INSPECTOR IN HIS REPORT. 2 . ITA NO. 166/CTK/2013 (A.Y.2009 - 10) SRI HRUSIKESH DAS VS. ITO 5.THAT THE LD. C.I.T(APPEALS) - II SHOULD HAVE BEEN ACCEPTED THE DEPOSITIONS RECORDED BY THE A.O. U/S. 131 OF THE I.T .ACT, 1961 FROM APPELLANTS MO THER AND ACCOR DINGLY, THE ONUS IS SHIFTED TO THE DEPARTMENT TO PROVE THAT THE GIFTS ARE NOT GENUIN E. 2.1 THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME SHOWING AN INCOME OF RS.1,61,649/ - AND TAX PAYABLE AT RS. 1248/ - AND THE ASSESSMENT WAS REOPENED U/S. 143(3). ACCORDING TO THE ITS DETAILS OF AIR TRANSACTIONS FILED BY THE BANK OF RAJASTHAN, ASHOK NAGAR, BHUBANESWAR, WHEREIN IT WAS SHOWN THAT ASSESSEE HAS MADE AGGREGATE CASH DEPOSITS OF RS. 26,50,000/ - IN S.B. ACCOUNT WITH THAT BANK DURING THE F.Y. 2008 - 09 RELEVANT TO A.Y.2009 - 10. THE ASSESSEE IS A DIRECTOR OF THE COMPANY M/S CRECENT ARTIMES (P) LTD., SHOWING SALARY AS DIRECTOR, INCOME FROM HOUSE PROPERTY AND INTEREST UNDER THE HEAD INCOME FROM OTHER SOURCES. THE ASSESSEE HAS PRODUCED ALL THE DETAILS AND SHOWN THAT THE ASSESSEE HAS MADE THIS DEPOSIT IN SB ACCOUNT TO BE HOUSE RENT AND SALARY INCOME. THE ASSESSEE H AS CONTENDED THAT HE HAS RECEIVED RS. 26.50 LAKHS AS GIFT FROM HIS MOTHER SMT. KAUSALYAMANI DAS, IN THE PREVIOUS YEAR. THE MOTHER WAS DOING BUSINESS IN SABAI ROPES, SABAI GRASS & EARNED ALSO FROM SALE PROCEEDS OF AGR ICULTURAL LAND , IT CANNOT BE VALID, THE REFORE, THE ASSESSING OFFICER HAS ADDED THE INCOME OF RS. 26.50 AS UNEXPLAINED INCOME FROM OTHER SOURCES. 2.2. THE MATTER CARRIED TO CIT(A) AND CIT(A) HAS CONFIRMED THE SAME. 2.3. THE LEARNED AR SUBMITTED THAT A SUM OF RS. 26.50 LAKHS WAS RECEIVED BY THE ASSESSEE FROM HIS MOTHER SMT. KAUSALYAMA NI DAS WHICH IS PERMISSIBLE AS T AX F REE GIFT I.T. ACT, 1961, AS BECAUSE, SHE IS OF 81 YEARS OLD AND TRUSTED ME TO STAY WITH ME FOR UNKEEP OF HEALTH AND DAY TO DAY MAINTENANCE. THE MOTHER HAS GIFTED THIS AMOUNT OUT O F SALE OF AGRICULTURAL LANDED PROPERTY OF AC. 5.48 DEC IN THE MONTH OF NOVEMBER, 1992 AND OUT OF AGRICULTURE INCOME ACCRUED FROM THE BALANCE AGRICULTURAL LANDS OF AC.4.83 DEC UP TO 2008. THE ASSESSEE HAS SUBMITTED THE SUPPORT OF THE CLAIM AS CERTIFICAT E FROM REGISTERING OFFICE. THE 3 . ITA NO. 166/CTK/2013 (A.Y.2009 - 10) SRI HRUSIKESH DAS VS. ITO SALE PROCEEDS IN THE MAYURBHANJ CENTRAL COOPERATIVE BANK LTD; BETNOTI BRANCH & IN SAVING BANK ACCOUNT IN THE UNITED BANK OF INDIA, BETONI BRANCH, OUT OF WHICH THE DETAILS ARE BEING PRODUCED VIDE AN AFFIDAVIT BY MOTHER. THE RE ASON THE ASSESSEE COULD NOT PRODUCED BANK DETAILS BECAUSE BANK REFUSED TO GIVE STATEMENT OF ACCOUNTS OF SUCH OLD PERIOD WHICH IS 1972 TO 2008 BECAUSE OF SUBSEQUENT COMPUTERIZATION. T HE ASSESSEE COULD NOT PRODUCE THE EVIDENCE BECAUSE THE POST OFFICE OF BETN OTI ALSO REFUSED TO GIVE ANY CONFIRMATION OF K.V.P. AND N.S.C., BECAUSE AFTER THE MATURITY OF N.S.C & K.V.P AND RELEVANT DOCUMENTS WERE BEING SEND TO , G.O.O. AS PER NORMAL PRACTICE OF THEIR RULE, THEREFORE, IT MAY BE ALLOWED. 2.4. THE LEARNED DR RELIED UP ON THE ORDER OF REVENUE AUTHORITIES. 3 . WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS RECEIVED THE AMOUNT OF RS. 26.50 LAKHS FROM OLD MOTHER AND THE MOTHER HAS FILED THE AFFIDAVIT BEFORE AUTHORITIES THAT SHE WAS HAVING THE AMOUNT IN MAYURBHANJ CENTRAL COOPERATIVE BANK LTD; BETNOTI BRANCH AND ALL THE MONEY WERE DEPOSITED IN THE SAID CENT RAL COOPERATIVE BANK WHICH READ AS UNDER: (A) THE MAURBHANJ CENTRAL CREDIT COOPERATIVE BANK LTD., BETNOTI BRANCH F.D. - (1) A/C NO. 2579 VIDE LEDGER FOLIO NO. 146/12 DTD. 9.6.1999 OF RS. 66,000/ - (2) A/C NO. 2595 VIDE L.F. NO. 162/12 OF RS. 45,000/ - DTD. 17.06.1999. ( 3) A/C. NO. 2952 VIDE LEDGER FOLIO NO. 159/12, DT. 16.6.1999 OF RS. 55,500/ - (4) 2 NOS. OF M.I.S. OF RS. 96,000/ - @ INTEREST OF 10% PER ANNUM. THE ASSESSEE HAS ALSO GIVEN THE FOLLOWING EVIDENCE TO THE REVENUE AUTHORITIES WHICH READ AS UNDER: (B) (1) SUB POST OFFICE , BETNOTI BRANCH KVP A/C NO. 59CC & 4426 & FOLIO NO. 937567,68,69 & 70 AMOUNTING OF RS. 40,000/ - IN TOTAL DTD ON 03.06.1999. (2) KVP AND NSC VIDE A/C NO. 546 & 547 OF RS. 20,000/ - VIDE DT. 14.06.1999. (3) KVP VIDE FOLIO NO. 96662 75 & 276 OF RS. 10,000/ - & 15,000/ - RESPECTIVELY VIDE FOLIO NO. 66254, & A/C NO. 56BB. (C)(I) THAT THE SUB - POST MASTER ALSO REFU SE D TO GIVE REFERENCE ON THIS DOCUMENTS AS THEY HAD DESPATCHED TO GPO AFTER MATURITY. 4 . ITA NO. 166/CTK/2013 (A.Y.2009 - 10) SRI HRUSIKESH DAS VS. ITO THE ASSESSING OFFICER HAS GIVEN THE DET AILS TO THE ASSESSING OFFICER REGARDING THE SOURCE OF MONEY FROM WHERE SHE BROUGHT THE MONEY. WHEN SHE HAS GIVEN THE NAME AND ADDRESS OF THE ALLEGED CREDITORS, IT IS THE DUTY OF THE ASSESSING OFFICER TO ISSUE NOTICE U/S. 131 BUT THE REVENUE DID NOT PURSUE THE MATTER. THE REVENUE DID NOT EXAMINE THE SOURCE OF THE INCOME OF SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CRE DITWORTHY. THERE WAS NO EFFORT MADE TO PURSUE THE SO - CALLED AND ALLEGED CREDITOR S. IN THOSE CIRCUMSTANCES , ASSESSEE COULD NOT DO ANY FURTHER . THEREFORE, WE ARE OF THE VIEW THAT WHEN 81 YEARS LADY HAS EXPLAINED THE SOURCE OF THE MONEY IT HAS TO BE ACCEPTED. WE FIND THAT THE ASSES SEE HAS RECEIVED RS.26.50 LAKHS FROM HIS MOTHER AS CASH GIFT WHICH IS PERMISSIBLE AS A TAX FREE GIFT UNDER I.T. ACT, 1961, AS , BECAUSE SHE IS OF 81 YEARS OL D AND TRUSTED ME TO STAY WITH ASSESSEE FOR UP KEEP OF HEALTH AND DAY TO DAY MAINTENANCE. THE ASSESSEE HAS ALSO EXPLAINED THE SALE OF AGRICULTURAL LANDED PROPERTY OF AC.5.48 DEC IN THE MONTH OF NOVEMBER, 1992, SHE HAS EXPLAINED THE SOURCE. THEREFORE, WE ARE OF THE VIEW AS PER THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT , ORISSA VS. ORISSA CORPO RATION P. LTD. 159 ITR 78 (SC). WHEREIN THE SUPREME COURT HELD AS UNDER : HELD, THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME - TAX ASS ESSE E . THEIR INDEX NUMBERS WERE IN THE FILED OF THE REVENUE. THE REVENUE, APART FROM ISSUING NOTICES SECTION 131 AT THE INSTANCE OF THE RESPONDENT, DI D NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CREDITWORTHY. THERE WAS NO EFFORT MADE TO PURSUE THE SO - CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE RESPONDENT COULD NOT DO ANYTHING FURTHER . IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE RESPONDENT HAD DISCHARGED THE BURDEN THAT LAY ON IT, THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. IF THE CONCLUSION WAS BASED ON SOME EVIDENCE ON WHICH A CONCLUSION COULD BE ARRIVED AT, N O QUESTION OF LAW AS SUCH AROSE . THE HIGH COURT WAS RIGHT IN REFUSING TO STATE A CASE. JUDGMENT OF THE ORISSA HIGH COURT AFFIRMED WE RESPECTFULLY FOLLOWING THE DECISION OF HONBLE SUPREME COURT, WE ARE OF THE VIEW THAT CIT(A) IS NOT JUSTIFIED IN TREATIN G THIS INCOME AS INCOME FROM OTHER S OURCES . THEREFORE, WE ALLOW THE APPEAL OF THE ASSESSEE. 5 . ITA NO. 166/CTK/2013 (A.Y.2009 - 10) SRI HRUSIKESH DAS VS. ITO 4 . IN THE RESULT , APPEAL FILED BY THE ASSESSEE IS ALLOWED . 5 . ORDER PRONOUNCED IN PURSUANCE OF RULE 34(4) OF ITAT RULES, 1963 BY PUTTING ON NOTICE BOARD OF THE BENCH AT CUTTA K IN THE OPEN COURT ON 13.6 .2014 . SD/ - SD/ - ( P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 13 .6.2014 P.S. - *PK* COPY TO : ( 1 ) APPELLANT ( 2 ) RESPONDENT ( 3 ) CIT CONCERNED ( 4 ) CIT(A) ( 5 ) D.R ( 6 ) GUARD FILE TRUE COPY, BY ORDER