Shri Rajendra Kumar Kaushik, Ghaziabad V. ITO, Ghaziabad

ITA 1999/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3710 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 07-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 13-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SRUJANI MOHANTY
• Keywords: Gift
• Section: 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER I.T.A NO. 1999/DEL/09 ASSTT. YEAR 2003-04 SHRI RAJENDRA KUMAR KAUSHIK, 46, SUCHITRA COMPLEX, AMBEDKAR ROAD, GHAZIABAD ADBPK4450K VS. ITO WARD-2(2) GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ANIL SHARMA, ADVOCATE RESPONDENT BY: SMT. SRUJANI MOHANTY, SR. DR ORDER PER RAJPAL YADAV, JM: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD. CIT(A) DATED 17 TH FEBRUARY, 2009 PASSED FOR ASSTT. YEAR 2003-04. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8 OF ITAT RULE. THEY ARE DESCRIPTIVE AND ARGUM ENTATIVE IN NATURE. IN THE FIRST GROUND OF APPEAL, ASSESSEE HAS PLEADED THAT LD. CIT(A) HAS ERRED IN UPHOLDING THE ASSTT. ORDER PASSED U/S 144 READ WITH SECTION 148 OF THE INCOME TAX ACT. THE ORDER HAS BEEN PASSED WI THOUT AFFORDING ANY ITA NO. 1999/DEL/09 ASSTT. YEAR 2003-04 2 OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE, IT IS NOT SUSTAINABLE. LD. COUNSEL FOR THE ASSESSEE, HOWEVER, DID NOT ADVA NCE ANY ARGUMENTS ON THIS ISSUE, HENCE IT IS REJECTED. 2. IN THE GROUND NO. 2, GRIEVANCE OF THE ASSESSEE I S THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF ` 10 LACS WHICH WAS ADDED BY THE AO WITH THE AID OF SECTION 68 OF THE INCOME TAX ACT . THE BRIEF FACTS OF THE CASE ARE THAT IN THE NOTE ANNEXED WITH THE RETU RN OF INCOME, ASSESSEE HAS DISCLOSED AN INVESTMENT OF ` 9,87,900/- TOWARDS PURCHASE OF A PLOT ON 17.12.2002 OUT OF THE GIFT RECEIVED BY HIM ON 15.12.2002 FROM HIS MOTHER, WHO MADE THE GIFT OUT OF SALE PRO CEED OF HOUSE NO. 102, NETAJI SUBHASH NAGAR, MODI NAGAR. AO HAS OBSER VED THAT STAMP DUTY HAS BEEN SHOWN BY THE ASSESSEE AT ` 30,700/- WHEREIN IN FACT THE STAMP DUTY OF ` 1,22,800/- HAS BEEN PAID FOR THE PURCHASE OF THE PL OT. THUS, THE TOTAL INVESTMENT MADE BY THE ASSESSEE IS OF ` 10,80,000/-. HE DID NOT ACCEPT THE THEORY OF ALLEGED GIFT ON THE GR OUND THAT NO GIFT DEED OR ANY OTHER DOCUMENTARY EVIDENCE I.E. COPY OF THE BANK ACCOUNT ETC. OF THE MOTHER WAS FILED. 3. APPEAL TO THE LD. CIT(A) DID NOT BRING ANY RELIE F TO THE ASSESSEE. 4. WITH THE ASSISTANCE OF LD. REPRESENTATIVE, WE HA VE GONE THROUGH THE RECORD CAREFULLY. THE MOTHER OF THE ASSESSEE W AS AN OLD LADY. THE ITA NO. 1999/DEL/09 ASSTT. YEAR 2003-04 3 FATHER SHRI SHYAM LAL KAUSHIK HAD RECEIVED THE PROP ERTY IN MODI NAGAR IN A FAMILY PARTITION PRIOR TO 1965. THE ASSESSEE A ND HIS YOUNGER BROTHER WERE LIVING IN THIS HOUSE UPTO 1995-96. THE MOTHER OF THE ASSESSEE HAS SOLD THE HOUSE AND RECEIVED THE CASH ON 17.10.2002. THE SALE WAS MADE IN TWO INSTALLMENTS ON THE SAME DATE.. THE TWO BROTHER OF THE ASSESSEE ARE LIVING AT MODI NAGAR IN PARENTAL HOUSE . THEREFORE, HIS MOTHER HAS GIVEN A SUM OF ` 10 LAC OUT OF THE SALE PROCEED TO THE ASSESSEE. HE COULD NOT PRODUCE THE MOTHER BECAUSE S HE EXPIRED IN THE MONTH OF MAY, 2003. THE ASSESSEE HAS PRODUCED COPY OF THE SALE DEED EXECUTED BY HIS MOTHER, BEFORE THE LD. FIRST APPELL ATE AUTHORITY. WE FIND THAT LD. FIRST APPELLATE AUTHORITY DID NOT ACCEPT T HE CONTENTION OF ASSESSEE ON THE GROUND THAT SALE PROCEED WAS NOT DE POSITED BY THE MOTHER IN ANY BANK ACCOUNT. ACCORDING TO THE LD. FI RST APPELLATE AUTHORITY, IT IS IMPROBABLE THAT AN OLD LADY WOULD KEEP THE CASH IN HOUSE FOR MORE THAN TWO MONTHS. IN OUR OPINION, THIS REAS ONING IS NOT SUFFICIENT TO REJECT THE EXPLANATION OF ASSESSEE. HE HAS DEMON STRATED THAT HIS MOTHER HAS SOLD THE PROPERTY. SHE WAS AN OLD LADY. SHE DIED AFTER 5-6 MONTHS. HIS BROTHERS WERE RESIDING IN PARENTAL HOUS E AT MODI NAGAR. THEREFORE, IN ORDER TO KEEP ALL THE BROTHERS AT PAR , SHE HAS GIVEN HIM A SUM OF ` 10 LAC. OUT OF SALE PROCEED AND HE HAS PURCHASED A PLOT OUT OF ITA NO. 1999/DEL/09 ASSTT. YEAR 2003-04 4 THAT MONEY. IN OUR VIEW, ALL THESE ACTIONS ARE IN T HE LINE OF NATURAL HUMAN BEHAVIOR. KEEPING THE CASH FOR A PERIOD OF TWO MON THS IS NOT SUCH CIRCUMSTANCE WHICH CAN NEGATE SALE DEED, PURCHASE D EED AND THE RELATIONSHIP OF MOTHER AND SON. IT IS NOT A GIFT FR OM ANY STRANGER. THEREFORE, CONSIDERING THE EVIDENCE ON RECORD, WE A RE OF THE VIEW THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION. WE ALLOW GROUND NO. 2 OF THE ASSESSEES APPEAL AND DELETE THE ADDITION. 5. IN THE NEXT GROUND OF APPEAL, ASSESSEE HAS PLEAD ED THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE CONCLUSION OF AO FOR ASSESSING THE INCOME FROM HOUSE PROPERTY AS INCOME UNDER THE HEAD FROM OTHER SOURCES. WITH THE ASSISTANCE OF LD. REPRESENTATIV E, WE HAVE GONE THROUGH THE RECORD CAREFULLY. THERE IS NO DISPUTE T HAT ASSESSEE HAD SHOWN RENTAL INCOME FROM SHOP NO. G-41 AND 46 G 42 AND 43. THE LD. CIT(A) HAS ACCEPTED THE RENTAL INCOME AT ` 60,000/- THOUGH THE LD. AO HAS ESTIMATED IT AT RS. 1,20,000/-. THE DEPARTMENT IS NOT IN APPEAL ON THIS ISSUE. THE AO HAS ASSESSED THIS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCE ON THE GROUND THAT SHOPS ARE NOT IN THE NAME OF ASSESSEE. AFTER GOING THROUGH THE RECORD WE FIND T HAT THIS ISSUE REQUIRED TO BE READJUDICATED AT THE LEVEL OF THE AO. IT TRAN SPIRES FROM THE RECORD THAT QUANTUM OF RENTAL INCOME IS NOT IN DISPUTE. TH E AO HAS TO DECIDE, WHETHER HOUSE PROPERTY HAS TO BE CONSTRUED AS TRANS FERRED IN THE NAME ITA NO. 1999/DEL/09 ASSTT. YEAR 2003-04 5 OF ASSESSEE WITHIN THE MEANING OF SECTION 2 (47) FO R THE PURPOSE OF THE INCOME TAX ACT ? THE ASSESSEE HAS TAKEN THE POSSES SION, MADE THE PAYMENT AND EARNED RENTAL INCOME FROM HOUSE PROPERT Y IF THAT BE SO, THEN HOW THE INCOME IS TO BE ASSESSED AS INCOME FRO M OTHER SOURCES. IT APPEARS THAT AO HAS TAKEN A VERY NARROW VIEW ON THE ISSUE. THEREFORE, WE SET ASIDE THE ORDERS OF LD. REVENUE AUTHORITY B ELOW AND REMIT THIS ISSUE TO THE FILE OF AO, HE WILL FIRST DECIDE TO WH OM OWNERSHIP OF THE PROPERTY LIES. THEREAFTER HE WOULD CONSIDER THE SOU RCE OF INCOME IN THE HANDS OF ASSESSEE. THIS GROUND OF APPEAL IS, THEREF ORE, ALLOWED FOR STATISTICAL PURPOSE. THE OBSERVATIONS MADE BY US WH ILE REMITTING THIS ISSUE TO THE FILE OF AO WOULD NOT IMPAIR OR INJURE THE CASE OF AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE / EXPLANATIO N OF THE ASSESSEE. WE FURTHER MAKE IT CLEAR THAT AO HAS TO DECIDE UNDE R WHICH HEAD THE INCOME OF ` 60,000/- ONLY WOULD BE ASSESSED I.E. WHETHER IT I S INCOME FROM OTHER SOURCES OR INCOME FROM HOUSE PROPERTY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 10.6.2011. SD/- SD/- [K.D. RANJAN] [RAJPAL YADAV] ITA NO. 1999/DEL/09 ASSTT. YEAR 2003-04 6 ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10.6.2011 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT