SUMITRADEVI K BANKA, MUMBAI V. ITO 20(3)(2), MUMBAI

ITA 1977/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3160 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 24-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY MODIDR
• Assessee Lawyers: C M GABHAWALA
• Keywords: Gift; Additional evidence
• Section: 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI . . , , , , BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI RAMLAL NEGI, JUDICIAL MEMBER, ITA NO.1977/MUM/2014 ASSESSMENT YEAR: 2009-10 SMT. SUMITRADEVI K. BANKA, 4B/164 KALPATARU ESTATE, JOGESHWARI VIKHROLI LIND ROAD, POONAM NAGAR, JOGESHWARI (E), MUMBAI -400060 / VS. INCOME TAX OFFICER-20(3)(2), PIRAMAL CHAMBERS, 6 TH FLOOR, LALBAUG, PAREL, MUMBAI-400012 ( ! /ASSESSEE) ( '# / REVENUE) P.A. NO. AAHPB7814D ! / ASSESSEE BY) SHRI C.M.GABHAWALA '# / REVENUE BY : SHRI AJAY MODI-DR $ # % !& / DATE OF HEARING 14/09/2015 % !& / DATE OF ORDER : 30/09/2015 / O R D E R PER N.K.BILLAIYA (ACCOUNTANT MEMBER) : THIS APPEAL IS BY THE ASSESSEE PREFERRED AGAINST TH E ORDER OF THE ASSESSING OFFICER 31, MUMBAI, DATED 28/02/2014, PER TAINING TO A.Y. 2009-10. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.22, 8 8,200/- MADE BY THE AO U/S 68 OF THE ACT. SMT. SUMITRADEVI K BANKA ITA NO.1977/MUM/2014 2 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE IS INDIVIDUAL AND A SENIOR CITIZEN WHOSE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS SELECTED FOR SCRUTINY ASSESSMENT PURSUANT TO AIR IN FORMATION, WHICH RELATED TO THE DEPOSIT OF CASH OF RS.22,86,200/- IN HER SAV ING BANK ACCOUNT IN STATE BANK OF BIKANER AND JAIPUR, ANDHERI EAST BRANCH. 4. DURING THE COURSE OF THE ASSESSMENT PROCEEDING, THE AO CONFRONTED THE AIR INFORMATION AND ASKED THE ASSESSEE TO EXPLA IN THE SOURCE OF THE CASH DEPOSITED IN HER SAVING BANK ACCOUNT. IN HER REPLY , THE ASSESSEE STATED THAT SHE HAS BEEN RECEIVING CASH GIFTS SINCE 1966, THE S AME WAS ACCUMULATED AND IS DEPOSITED DURING THE YEAR UNDER CONSIDERATION. THIS EXPLANATION OF THE ASSESSEE WAS RUBBISHED BY THE AO WHO WENT ON TO TRE AT THE DEPOSIT OF CASH OF RS.22,88,200/- AS INCOME OF THE ASSESSEE U/S 68 OF THE ACT. 5. AGGRIEVED BY THE THIS, THE ASSESSEE CARRIED THE MATTER BEFORE CIT(A) AND TOOK ALL TOGETHER NEW PLEA THAT THE CASH DEPOSI TS WERE MADE OUT OF GIFT RECEIVED BY THE ASSESSEE FROM HER MOTHER, SMT. GINN I DEVI BAJRANGLAL AGARWAL. IT WAS EXPLAINED TO THE LD. CIT(A) THAT TH IS EXPLANATION WAS NOT GIVEN DURING THE COURSE OF THE ASSESSMENT PROCEEDIN G JUST TO AVOID UNNECESSARY FAMILY TENSION AMONGST THE FAMILY MEMBE RS. IN SUPPORT OF HER NEW EXPLANATION, THE ASSESSEE FILED COPY OF BANK ST ATEMENT, CASH BOOK, AND LEDGER ACCOUNT. THE LD. CIT(A) TREATED THE EVIDENCE S FILED BY THE ASSESSEE AS ADDITIONAL EVIDENCES AND REFERRED THE SAME FOR VERI FICATION, ENQUIRY AND COMMENTS FROM THE AO. 6. THE AO SUBMITTED REMAND REPORT ON 23/12/2013, TH E SAME WAS FORWARDED TO THE ASSESSEE FOR THE COMMENTS. AFTER RECEIVING THE REPLY OF THE ASSESSEE AND AFTER CONSIDERING THE CONTENTS OF THE REMAND REPORT, THE LD. CIT(A) WAS CONVINCED THAT THE EXPLANATION OF TH E ASSESSEE, REGARDING THE SMT. SUMITRADEVI K BANKA ITA NO.1977/MUM/2014 3 SOURCE OF THE CASH DEPOSITS IS NOT ACCEPTABLE. THE ADDITION OF RS.22,88,200/- WAS CONFIRMED. 7. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. TH E COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. THE LD. COUNSEL ALSO SUBMITTED ALL THE RELEVANT DOCUMEN TARY EVIDENCES IN SUPPORT OF HIS CLAIM IN THE FORM OF A PAPER BOOK. 8. PER CONTRA, THE LD. DR, STRONGLY SUPPORTED THE F INDINGS OF THE REVENUE AUTHORITIES. WE HAVE GIVEN A THOUGHTFUL CONSIDERATI ON TO THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO CONSIDERED CAREFULL Y, THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD BEFORE US. 9. UNDISPUTEDLY, AT THE TIME OF THE ASSESSMENT PROC EEDINGS, THE EXPLANATION OF THE ASSESSEE WAS THAT SHE HAS BEEN R ECEIVING GIFT SINCE 1966. IT IS ALSO AN UNDISPUTED FACT THAT BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE CLAIMED THAT SHE HAS RECEIVED GIFT FROM HE R MOTHER. WHEN SHE WAS ASKED TO EXPLAIN, WHY THIS EXPLANATION WAS NOT GIVE N EARLIER, SHE CLAIMED THAT IT WAS NOT GIVEN TO AVOID UNNECESSARY FAMILY T ENSION AS SHE WAS HAVING ESTRANGED RELATIONSHIP WITH HER SON WITH WHOM SHE I S LIVING. THE REVENUE AUTHORITIES HAVE DISBELIEVED THIS EXPLANATION. HOW EVER, WE DO NOT FIND ANY REASON TO DISBELIEVE THIS EXPLANATION FOR THE SIMPL E REASON THAT IT IS NOT UNCOMMON IN JOINT FAMILIES, TO HAVE DIFFERENCES AMO NGST FAMILY MEMBERS. SECONDLY, IT IS NOT UNCOMMON FOR AN AGED MOTHER TO GIVE CASH GIFT TO HER DAUGHTER. ALL THAT WE HAVE TO SEE IS WHETHER THE T RANSACTIONS ARE SUPPORTED BY THE DOCUMENTARY EVIDENCES OR NOT. A PERUSAL OF THE BANK STATEMENT OF THE MOTHER OF THE ASSESSEE SHOW THAT THERE ARE CONS TANT WITHDRAWALS OF CASH AND IF SUCH WITHDRAWALS ARE COMPARED WITH THE DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE, THEY MATCH. SMT. SUMITRADEVI K BANKA ITA NO.1977/MUM/2014 4 10. THE SECOND AND THE MOST IMPORTANT REASON FOR DI SBELIEVING THE SUBMISSION OF THE ASSESSEE WAS THAT THE GIFT DEED W AS MADE ON 17/07/2012, WHEREAS, THE IMPUGNED TRANSACTIONS HAVE TAKEN PLACE IN FINANCIAL YEAR 2008- 09. IT APPEARS THAT THE REVENUE AUTHORITIES HAVE N OT APPRECIATED THE FACT PROPERLY, WHAT THEY ARE REFERRING IS NOT A GIFT DEE D BUT A DECLARATION FILED AT THE BEHEST OF THE ASSESSING OFFICER DURING THE COUR SE OF THE ASSESSMENT PROCEEDINGS. IT IS NOT EXPECTED FROM A SENIOR CITI ZEN OLD LADY TO MAKE A GIFT DEED ON EACH OCCASION, WHEN SHE IS MAKING THE GIFT TO HER DAUGHTER. 11. EVEN IN HIS REMAND REPORT DATED 23/12/2013, WHI CH IS PLACED AT PAGES 22 TO 25 OF THE PAPER BOOK, THE ASSESSING OFFICER I NSTEAD OF VERIFYING THE DOCUMENTARY EVIDENCES TRANSMITTED BY THE LD. CIT(A) FOR VERIFICATION, PROCEEDED BY DISMISSING THE CLAIM BY MAKING GENERAL OBSERVATIONS. THE AO DID NOT EVEN CARE TO VERIFY THE CONTENTS OF THE AFF IDAVITS FILED BY THE MOTHER SMT. GINNI DEVI AGARWAL, WHICH IS AGAINST THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF MEHTA PARIKH & COMPANY 30 ITR 181. 12. CONSIDERING THE FACT OF WITHDRAWAL OF CASH FRO M THE BANK ACCOUNTS OF THE DONOR (MOTHER) AND FINDING THE SAME DEPOSITED I N THE BANK ACCOUNT OF THE ASSESSEE, IN OUR CONSIDERED OPINION, PRIMA FACI E, THE ASSESSEE HAS EXPLAINED THE SOURCE OF CASH DEPOSITED IN HER SAVIN G BANK ACCOUNT, THEREBY DISCHARGING THE ONUS CAST UPON HER BY PROVISION OF SECTION 68 OF THE ACT, WHICH ARE NAMELY:- I. IDENTITY OF THE CREDITOR (DONOR) II. GENUINENESS OF THE TRANSACTION, PRIMA FACIE AND III. CAPACITY OF THE LENDER (DONOR), PRIMA FACIE 13. AS MENTIONED ABOVE, THE ASSESSEE HAS EXPLAINED THE TRANSACTIONS PRIMA FACIE, THE REVENUE AUTHORITIES HAVE NOT BROUG HT ANY EVIDENCE WHICH SMT. SUMITRADEVI K BANKA ITA NO.1977/MUM/2014 5 COULD SUGGEST THAT THE ASSESSEE WAS DOING SOME BUSI NESS OR SHE IS INVOLVED IN THE SOME ACTIVITIES WHICH COULD LEAD TO THE GENE RATION OF UNACCOUNTED MONEY, WHICH ACCORDING TO THE REVENUE AUTHORITIES H AVE BEEN DEPOSITED IN HER BANK ACCOUNT IN THE DISGUISE OF GIFT. 14. IN OUR UNDERSTANDING OF THE FACTS, THE REVENUE AUTHORITIES HAVE NOT DISCHARGED THE ONUS; THEREFORE, THE IMPUGNED ADDITI ON DESERVES TO BE DELETED. WE ACCORDINGLY SET ASIDE THE FINDINGS OF THE CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION OF RS.22,88,200/-. 15. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. SD/- (RAMLAL NEGI) '# / JUDICIAL MEMBER SD/- (N.K.BILLAIYA) $# / ACCOUNTANT MEMBER $ MUMBAI; ( DATED : 30/09/2015 F{X~{T? P.S/. .. %'&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )* +, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / $ 0! ( )* ) / THE CIT, MUMBAI. 4. / / $ 0! / CIT(A)- , MUMBAI 5. 2#3 -!4 , / )* & )45 , $ / DR, ITAT, MUMBAI 6. 6 7 / GUARD FILE. / BY ORDER, .2*! -! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI