ITO, WD-31(2), KOLKATA, Kolkata V. Smt. Rubi Chatterjee, Kolkata

ITA 1847/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9234 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 20-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 26-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITAL CHANDRA DAS J
• Keywords: Gift; Corroborative evidences; Valuation report
• Section: 131; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.1847/KOL/2014 ASSESSMENT YEAR:2009-10 ITO WARD-31(2), 10B, MIDDLETON ROW, 4 TH FLOOR, KOLKATA-71 / V/S . SMT. RUBI CHATTERJEE, 48/1C, DR. SURESH SARKAR ROAD, KOLKATA-14 [ PAN NO.AGNPC 3676 P ] /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SITAL CHANDRA DAS, JCIT-DR /BY RESPONDENT SHRI SOUMITRA CHOUDHURY, ADVOCATE /DATE OF HEARING 17-01-2017 /DATE OF PRONOUNCEMENT 10-03-2017 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XIX, KOLKATA DATED 01.07.2014. ASSESS MENT WAS FRAMED BY ITO WARD NO.31(2), KOLKATA U/S 144 OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 21. 12.2011 FOR ASSESSMENT YEAR 2009-10. SHRI SITAL CHANDRA DAS, LD. DEPARTMENTAL REPRESENTA TIVE REPRESENTED ON BEHALF OF REVENUE AND SHRI SOUMITRA CHOUDHURY, LD. ADVOCATE APPEARED ON BEHALF OF ASSESSEE. ITA NO.1847/KOL/2014 A.Y. 200 9-10 ITO WD-31(2) KOL. VS. SMT. RUBI CHATTERJEE PAGE 2 2. THE INTER-CONNECTED ISSUE RAISED BY THE REVENUE IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN ADMITTING THE ADDITIONAL EV IDENCE IN CONTRAVENTION TO THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 196 2. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND HAS FILED RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.2,2 1,200/-. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.36,55,675/- IN C ASH IN ITS BANK ACCOUNT MAINTAINED WITH AXIS BANK. ON QUESTIONED BY AO ABOU T THIS SOURCE OF CASH DEPOSIT THE ASSESSEE FAILED TO PROVIDE ANY RELIABLE INFORMATION. THEREFORE, THE SAME WAS TREATED AS INCOME OF THE ASSESSEE. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE LD . CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT SHE WAS M ARRIED IN DECEMBER, 1998 AND RECEIVED GIFTS OF JEWELLERY, ORNAMENTS MAD E OF GOLD AND DIAMOND FROM HER IN-LAWS AND PARENTAL SIDES. THE SAID JEWEL LERY WAS VALUED AS ON 13.12.1998 FROM A REGISTERED VALUER WHO HAS VALUED THE SAME AT RS.9,63,356/-. IN THE YEAR 2008 SHE AGAIN REVALUED THE SAME FROM THE REGISTERED VALUER WHO VALUED AT RS.14,35,570/-. SUB SEQUENTLY SHE SOLD THE ENTIRE JEWELLERY TO M/S. BHAVIN JEWELLERS LOCATED I N AHMEDABAD HAVING GST NO.24070701303 DATED 01.07.2002 & GST TIN NO.245707 01303 DATED 23.03.1992 FOR RS.17,10,535/-. BESIDES THE ABOVE, T HE ASSESSEE SUBMITTED THAT THE AO HAS TAKEN THE TOTAL DEPOSITS OF RS. 36, 55,675/- AS INCOME WITHOUT CONSIDERING THE WITHDRAWALS MADE IN CASH FROM SUCH BANK ACCOUNT. THE CASH WITHDRAWALS FROM THE BANK ARE OF RS.23,75,000/-. TH ERE WAS AN OPENING BALANCE OF CASH IN THE HANDS OF THE ASSESSEE AS ON 1 ST APRIL, 2008 FOR RS.7,46,000/- WHICH WAS WITHDRAWN FROM HER SB A/C N O.40256 MAINTAINED WITH AXIS BANK DATED 12 TH MARCH, 2008. THE ASSESSEE HAS ALSO RECEIVED LOAN FROM DIFFERENT PARTIES WHICH WAS REPAID DURING THE YEAR. ALL THE PARTIES FROM WHOM THE LOAN WAS TAKEN WERE HAVING VALID PAN CARD. THE ASSESSEE FOR THE YEAR FOR CONSIDERATION HAS ALSO DECLARED INCOME OF RS.3,21,197/- ITS INCOME TAX RETURN. ITA NO.1847/KOL/2014 A.Y. 200 9-10 ITO WD-31(2) KOL. VS. SMT. RUBI CHATTERJEE PAGE 3 THE ASSESSEE HAS ALSO TAKEN LOAN FROM HER HUSBAND F OR RS.4 LAKH AND THE PAN NO. OF HER HUSBAND AGMPC 3484E. THE MONEY WAS B ORROWED FOR THE PURPOSE OF A FLAT IN KOLKATA. IN VIEW OF THE ABOVE, THE LD. CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO WHO IN TURN SUBMITTED THA T THE PARTY M/S. BHAVIN JEWELLERS IS NOT TRACEABLE. SIMILARLY, PARTIES FROM WHOM THE ASSESSEE HAS TAKEN LOAN WERE ISSUED NOTICE U/S 131 OF THE ACT BU T NONE OF THEM PHYSICALLY APPEARED BEFORE THE AO. THEY HAD JUST SUBMITTED THE IR REPLY TO THE INCOME TAX DEPARTMENT. THE LD. CIT(A) AFTER CONSIDERING THE SU BMISSIONS OF THE ASSESSEE HAS DELETED THE ADDITION MADE BY THE AO BY OBSERVIN G AS UNDER : 3.5. I HAVE CONSIDERED THE ASSESSMENT ORDER AND TH E SUBMISSION OF THE AR OF THE APPELLANT ALONG WITH CASH FLOW STATEMENT AND SU PPORTING DOCUMENTS & EVIDENCES AND THE REMAND REPORT OF THE AO AND COMME NTS OF THE AR IN DECIDING THE ISSUE. THE RIVAL CONTENTIONS ON THE IS SUE HAVE BEEN ANALYZED WITH ALL THE MATERIAL FACTS ON RECORD FOR NECESSARY ADJU DICATION. THE AR OF THE APPELLANT HAS EXPLAINED BEFORE ME THE SOURCE OF CAS H DEPOSIT IN BANK A/CS WHICH IS CLEARLY AVAILABLE FROM THE DATE WISE CASH FLOW STATEMENT WITH SUPPORTING EVIDENCES. HE HAS SUBMITTED THAT THERE W AS CASH WITHDRAWAL FROM BANK ACCOUNTS DURING THE YEAR UNDER CONSIDERATION, OPENING CASH BALANCE WHICH WAS WITHDRAWN ON 12.3.2008 FROM SB A/C NO. 40 256 OF AXIS BANK, SALE OF JEWELLERY AND LOAN/ADVANCE TAKEN FROM NEAR RELATIVE S AND FRIENDS. HE HAS SUBMITTED THAT CASH DEPOSITS IN BANK A/CS ARE FULLY AND CLEARLY EXPLAINED AS MOST OF SUCH DEPOSITS ARE OUT OF WITHDRAWALS FROM B ANKS AND SALE OF JEWELLERY. I HAVE THOROUGHLY CHECKED AND VERIFIED THAT THE CASH DEPOSITS IN THE BANK A/CS AS ADDED BY THE AO WERE OUT OF THE WITHDRAWALS FROM BA NKS, ADVANCES/LOANS FROM RELATIVES/FRIENDS AND SALE OF JEWELLERY THE SOURCE OF WHICH HAS BEEN FULLY EXPLAINED AND VERIFIED BY ME WITH ALL THE RELEVANT EVIDENCES AND AS SUCH THE QUESTION OF ADDITION ON THE GROUND OF UNEXPLAINED C ASH DEPOSITS DOES NOT ARISE UNDER ANY CIRCUMSTANCES. I HAVE CAREFULLY CONSIDERE D THE CONTENTION AND THE CASH. FLOW STATEMENT WITH OTHER DOCUMENTARY EVIDENC ES AND I AM OF THE OPINION AND HOLD THAT CASH DEPOSITS IN BANK A/CS ARE FULLY COVERED AS EXPLAINED BY THE. AR OF THE APPELLANT AND VERIFIED BY ME. MOREOVER, T HE ADVANCES RECEIVED FROM RELATIVES AND FRIENDS WERE FROM THE PERSONS WHO ARE HAVING THEIR IDENTITY AND I.T. PANS AND WHO HAVE DULY CONFIRMED THE TRANSACTI ONS STATING THE SOURCE IN COMPLIANCE TO NOTICES SENT BY SPEED POST WHICH WERE ALL SERVED ON THEM. IT IS EVIDENT THAT RS.7,46,000/- WAS WITHDRAWN FROM AXIS BANK, CIT ROAD BRANCH, S.B. ACCOUNT NO. 40256 ON 12.3.2008 WHICH REMAINED CASH AVAILABLE WITH THE APPELLANT ON 01.04.2008. AS REGARDS SOURCE OF SALE OF JEWELLERY OF RS.17,10,535/- WHICH WAS POSSESSED BY THE APPELLANT AS STRIDHAN, IT IS EVIDENT FROM THE VALUATION REPORTS DATED 13.12.1998 AND 07. 04.2008 GIVEN BY KIRIT H. KOTHARI HAVING REGISTRATION NUMBER WB CAT VIII/14(T ) OF 1988 THAT THE SAID JEWELLERY WAS SOLD AS THE APPELLANT THOUGHT OF INVE STING THE SAME IN MUTUAL FUNDS ETC. IN WHICH PROFITS COULD BE EARNED AND THE EVIDENCE OF SALE WAS DULY PRODUCED CONFIRMING THE SALE AT ~17, 10,535/-. THER E IS NO ADVERSE REMARK FROM AO THAT THE FIRM M/S. BHAVIN JEWELLERS TO WHOM THE JEWELLERY WAS SOLD WAS NOT ITA NO.1847/KOL/2014 A.Y. 200 9-10 ITO WD-31(2) KOL. VS. SMT. RUBI CHATTERJEE PAGE 4 IN EXISTENCE IN THE YEAR 2008-09 AND AS SUCH THE SA LE OF JEWELLERY CANNOT BE DENIED. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTAN CES OF THE CASE, I HOLD THAT RS.36,55,675/- ADDED AS UNEXPLAINED CASH DEPOSITS I N BANK A/CS IS NOT JUSTIFIED AS CAN BE SEEN FROM THE FINDINGS IN THE FOREGOING PARAS. THE SAME IS DIRECTED TO BE DELETED. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A) THE REVE NUE IS IN APPEAL BEFORE US. 5. THE LD. AR BEFORE US REITERATED THE SUBMISSIONS AS MADE BEFORE THE LD. CIT(A) AND HE RELIED ON THE ORDER OF LD. CIT(A). ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDER OF AO. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSU E IN THE INSTANT CASE RELATES TO THE DISALLOWANCE MADE BY THE AO ON ACCOU NT OF THE CASH DEPOSIT IN THE BANK. IT WAS OBSERVED THAT THE ASSESSEE FAILED TO FURNISH THE NECESSARY DETAILS TO THE AO AT THE TIME OF ASSESSMENT WITH RE GARD TO THE SOURCE OF CASH, THEREFORE THE ADDITION WAS MADE. HOWEVER AT THE TIM E OF APPELLATE STAGE WE FIND THAT SUFFICIENT INFORMATION WITH REGARD TO THE SOURCE OF CASH DEPOSITED WITH THE BANK WAS EXPLAINED BY THE ASSESSEE AS DETAILED UNDER : 1. THERE WAS AN OPENING BALANCE OF RS.7.46 LACS AS ON 1 ST APRIL 2008 WHICH WAS WITHDRAWN FROM THE SAVING BANK NO. 40256 MAINTAINED WITH AXIS BANK OF THE ASSESSEE DATED 12.3.2008. 2. ASSESSEE DURING THE YEAR HAS ALSO SOLD JEWELLERI ES AND SUBMITTED NECESSARY DETAILS IN SUPPORT OF SALE OF THE JEWELLE RIES. 3. ASSESSEE DURING THE YEAR HAS ALSO TAKE LOAN FROM VARIOUS PARTIES AND IN SUPPORT OF HIS CLAIM HE HAS FURNISHED THE CO PIES OF THE PAN & OTHER DETAILS. THESE PARTIES ARE THE CLOSE RELATIVE S AND FRIENDS OF THE ASSESSEE. THEY ALSO CONFIRMED THE TRANSACTIONS FROM THE ASSESSEE. 4. THE ASSESSEE HAS ALSO TAKEN LOAN FROM HER HUSBAN D DURING THE YEAR. 5. THE ASSESSEE ALSO SUBMITTED THAT SHE HAS EARNED AN INCOME OF RS. 2,21,200.00 IN THE YEAR UNDER CONSIDERATION. 6. THERE WERE CASH WITHDRAWALS FROM BANK ACCOUNT OF THE ASSESSEE WHICH HAS NOT BEEN CONSIDERED BY THE AO. THE ASSESS EE HAS ALSO SUBMITTED CASH FLOW STATEMENT IN SUPPORT OF HER CLA IM. ITA NO.1847/KOL/2014 A.Y. 200 9-10 ITO WD-31(2) KOL. VS. SMT. RUBI CHATTERJEE PAGE 5 HOWEVER, WE ALSO FIND THAT THE AO IN THE REMAND REP ORT HAS CLEARLY STATED THE JEWELER TO WHOM THE ASSESSEE HAS SOLD HER JEWELLERI ES WAS NOT TRACEABLE. SIMILARLY, THE PARTIES WHO HAVE GIVEN LOAN TO THE A SSESSEE FAILED TO APPEAR BEFORE THE AO. BUT IN OUR VIEW SUFFICIENT DETAILS W ERE FURNISHED BY THE ASSESSEE WITH REGARD TO THE JEWELER AS IT WAS REGIS TERED WITH THE SALES TAX DEPARTMENT AND NO VERIFICATION WITH THE SALES TAX D EPARTMENT WAS CARRIED OUT. BUT THE LOWER AUTHORITIES HAD NOT BROUGHT ANYTHING ON RECORD THAT THE JEWELER WAS NOT IN EXISTENCE AT THE RELEVANT TIME WHEN THE JEWELLERY WAS SOLD. SIMILARLY, IN OUR VIEW CONSIDERED VIEW THAT THE ADD ITIONS CANNOT BE SUSTAINED IN THE HANDS OF THE ASSESSEE JUST THE PARTIES FAILE D TO APPEAR BEFORE THE AO. THUS IN VIEW OF ABOVE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT- A. HENCE THIS GROUND OF APPEAL OF THE REVENUE IS DI SMISSED. 7. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 10/03/2017 SD/- SD/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S ! - 10/03/2017 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-31(2), 10B, MIDDLETON ROW, 4 TH FLOOR, KOL-71 2. /RESPONDENT-SMT. RUBI CHATTERJEE, 48/1C, DR. SURESH SARKAR RD. KOLKATA-14 3. '# % / CONCERNED CIT 4. % - / CIT (A) 5. &'( ))'# , '# / DR, ITAT, KOLKATA 6. (*+ / GUARD FILE. BY ORDER/ , /TRUE COPY/ / '#,