Lila Agarwala., Malda V. I.T.O Wd - 2,Malda., Malda

ITA 1855/KOL/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0478 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 17-12-2012
• Court: TRIBUNAL
• Department Lawyers: KAHIYA LAL KANAK
• Keywords: Gift
• Section: 144; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HON BLE SRI P.K.BANSAL , A M & HON BLE SRI MAHAVIR SINGH , J M] ITA NO. 185 5 /KOL/2012 ASSESSMENT YEAR : 2006 - 07 ( A PPELLANT ) - (RESPONDENT) SMT. LILA AG ARWALA I.T.O., WARD - 2, MALDA - VERSUS - MALDA (PAN: ACNPA 6895 N) FOR THE APPELLANT : SHRI SUBASH AGARWAL,ADVOCATE FOR THE RESPONDENT : SHRI KAHIYA LAL KANAK ,SR.DR DATE OF HEARING : 27 .05 .2015 DATE OF PRONOUNCEMENT : 08.06.2015. ORDER PER S HRI P.K.BANSAL, AM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD . CIT(A) - JALPAIGURI DATED 03.09.2012 FOR A.YR. 2006 - 07 . 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO THE SUSTENANCE OF ADDITION OF RS.9,65,000/ - U/S 68 OF TH E I.T.ACT IN RESPECT OF GIFT RECEIVED BY THE ASSESSEE FROM HER SISTER SMT. SHILA AGARWAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ORIGINAL ASSESSMENT ORDER WAS PASSED U/S 144 OF THE ACT ON 30.12.2008 AGAINST WHICH THE ASSESSEE WENT IN APPEAL BEFORE C IT(A). CIT(A) VIDE ORDER DATED 17.06.2009 CONFIRMED THE ORDER OF AO BUT THE MATTER CAME BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ORDER DATED 18.02.2010 IN ITA NO.1609/KOL/2009 SET ASIDE THE ORDER OF THE REVENUE AUTHORITIES AND RESTORED BACK THE ISSUE TO TH E AO FOR VERIFYING THE DOCUMENTS SUBMITTED BY THE ASSESSEE AND DIRECTED THE AO TO RE - DECIDE THE ISSUE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. THE AO AGAIN SUSTAINED THE ADDITION. WHEN THE MATTER WENT BEFORE CIT(A), CIT(A) SUSTAINED THE ADDITION. ITA NO. 1855/KOL/2012 LILA AGARWALA A.YR. 2006 - 07 2 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE MATERIALS AVAILABLE ON RECORD ALONG WITH ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THAT THE ASSESSEE HAS RECEIVED A GIFT OF RS.20,000 US$ FROM HER SISTER SMT. SHILA AGARWAL. THE DONOR IS A SCHOOL TEACHER IN EMIRATES AND DRAWING A SALARY OF RS.2,650 US $ PER MONTH. THE ASSESSEE HAS SUBMITTED BEFORE THE AUTHORITIES BELOW AS WELL AS BEFORE US THE COPY OF HER SALARY CERTIFICATE, COPY OF DEMAND DRAFT THROUGH WHICH GIFTS WERE MADE T O THE ASSESSEE. THE GIFT IS IN THE FORM OF DEMAND DRAFT NO.6570884 DATED 18.08.2005 FOR RS.4,80,000/ - AND DD NO.6570927 DATED 17.08.2005 FOR RS.4,85,000/ - . THE ASSESSEE HAS SUBMITTED COPY OF THE PASSPORT OF SMT. SHILA AGARWAL, SISTER OF THE ASSESSE, WHO IS THE DONOR AND COPY OF THE BANK ACCOUNT WHICH IS MAINTAINED IN DUBAI, UAE BY SMT.SHILA AGARWAL ALONG WITH HER HUSBAND SHRI MANOJ KUMAR AGARWALA. A CERTIFICATE FROM EMIRATES INDIA INTERNATIONAL EXCHANGE CERTIFYING THAT THEY HAVE ISSUED THE AFORESAID TWO DRA FTS OF RS.4,80,000/ - AND RS.4,85,000/ - AT THE REQUEST OF SHRI MANOJ KUMAR AGARWALA, HUSBAND OF SMT. SHILA AGARWAL. SMT. SILA AGARWAL HAS DULY ISSUED A CONFIRMATION WHICH IS AVAILABLE AT PAGE 11 OF THE PAPER BOOK DATED 13 TH OCTOBER, 2009 WHEREIN SHE HAS EX PLAINED THAT SHE IS LIVING IN DUBAI AND WORKING AS A TEACHER AND DRAWING A SALARY OF RS.,2650 US$. SHE HAS GIFTED US$ 20,000/ - TO HER SISTER SMT.LILA AGARWALA, THE ASSESSEE OUT OF HER PAST SAVINGS FOR WHICH THE DRAFTS HAVE BEEN PURCHASED FORM EMIRATES IND IA INTERNATIONAL EXCHANGE IN DUBAI. A COPY OF THE PASSPORT OF SHRI MANOJ KR.AGARWALA WAS ALSO SUBMITTED ALONG WITH HIS WIFE WHO IS DRAWING A SALARY OF 10,000US$. WE NOTED THAT AO WAS NOT SATISFIED WITH THESE EVIDENCES. AS THE DRAFT WAS PAID IN CASH THE AO ASSUMED THAT WHATEVER MONEY THE DONOR RECEIVED BY HER HUSBAND WAS KEPT IN HER HOUSE WITHOUT DEPOSITING IT IN HER BANK ACCOUNT. THESE DRAFTS CANNOT GIVE ANY INDICATION THAT THOSE WERE PRODUCED BY THE DONOR DEPOSITING HER OWN INCOME IN THE BANK. EVEN THE AO DOUBTED THE SIGNATURE OF THE DONOR. IN OUR OPINION SECTION 68 OF THE ACT LAID DOWN A RULE OF EVIDENCE WHICH STATES THAT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABO UT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM WHICH IS NOT SATISFACTORY THE SUM SO CREDITED MAY BE CHARGED TO TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THE ONUS IS ON THE ASSESSEE TO PROVE THE IDENTITY AND CREDITWORTHINE SS OF THE DONOR AS WELL AS ITA NO. 1855/KOL/2012 LILA AGARWALA A.YR. 2006 - 07 3 GENUINENESS OF THE TRANSACTIONS WHICH IS NOT DENIED BY THE REVENUE THAT SMT. S H ILA AGARWAL, SISTER OF THE ASSESSEE WHO IS RESIDING IN UAE AND DRAWING A SALARY OF US$ 2650/ - PER MONTH. THE DRAFT HAS BEEN PURCHASED BY HER WHICH IS APPARENT FROM THE CERTIFICATE ISSUED BY EMIRATES INDIA INTERNATIONAL EXCHANGE, A COPY OF WHICH IS AVAILABLE AT PAGE 10 OF THE PAPER BOOK IN FAVOUR OF THE ASSESSEE. AO DOUBTED THE SIGNATURE OF THE DONOR. THE CERTIFICATE ISSUED BY EMIRATES INDIA INTERNATIONA L EXCHANGE CANNOT BE REGARDED TO BE BOGUS AND COPY OF THE BANK STATEMENT WHICH IS AVAILABLE AT PAGE 9 IS NOT BOGUS. ONCE THE REVENUE DOUBTED THE DOCUMENTS, IN OUR OPINION, THE ONUS IS ON THE REVENUE TO PROVE THAT THE DOCUMENTS FURNISHED BY THE ASSESSEE ARE NOT GENUINE ONE. IF THE AO DOUBTED THE SIGNATURE OF SMT. SHILA AGARWAL HE COULD HAVE VERY WELL SENT BOTH THE SIGNATURES TO THE SIGNATORY EXPERTS AND WHEREVER THE SIGNATURE SIGNED BY SMT. SHILA AGARWAL ARE THE SAME AS ON THE PASSPORT. WE HAVE ALSO LOOKED I NTO THE SIGNATURES WHICH IS AVAILABLE ON THE CERTIFICATE ISSUED AS WELL AS PASSPORT. WE DO NOT FIND ANY DIFFERENCE APPARENT ON BOTH THE SIGNATURES. THE IDENTITY OF SMT. SHILA AGARWAL, HER CREDITWORTHINESS AND GENUINENESS, IN OUR OPINION, IS DULY PROVED. UN DER THE I.T.ACT THERE IS NO PROVISION WHICH BARS THE ASSESSEE NOT TO KEEP HER SALARY IN CASH AT HOME . THE CREDITWORTHINESS ITSELF WILL PROVE WHEN THE DONOR S HUSBAND WAS ALSO DRAWING A SALARY OF 10000 US$ AT A TIME WHEN THE GIFT WAS GIVEN BY THE DONOR TO H ER SISTER. IT IS A GIFT WHICH HAS BEEN GIVEN BY THE SISTER TO THE ASSESSEE. WE DO NOT AGREE WITH THE AUTHORITIES BELOW THAT THE ASSESSEE FAILED TO PROVE THE CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF THE TRANSACTION. WE, THEREFORE, SET ASIDE THE ORDE R OF CIT(A) AND DELETE THE ADDITION MADE BY AO. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 0 8.06.2015. SD/ - SD/ - [MAHAVIR SINGH ] [P.K.BANSAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 08.06.2015. R.G.(.P.S.) ITA NO. 1855/KOL/2012 LILA AGARWALA A.YR. 2006 - 07 4 COPY OF THE ORDER FORWARDED TO: 1 . LILA AGARWALA, C/O MALDA MEDICAL CENTRE MOKDUMPUR, MALDA - 732103. 2 I.T.O., WARD - 2, MALDA. 3 . C IT KO LKATA 4. CIT(A) - JALPAIGURI. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES