AMEETA P. GUPTA, MUMBAI V. ITO 23(2)(1), MUMBAI

ITA 2024/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2756 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 27-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A DYANI
• Keywords: Unexplained cash credit; Gift
• Section: 68; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI , , BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.2024/MUM/2012 ASSESSMENT YEAR 2005-06 MRS. AMEETA P. GUPTA, A-39, RASHTRASARATHI CHS LTD., DINDAYAL NAGAR, MULUND (EAST), MUMBAI 400 081 PAN: AEKPG6992F (APPELLANT ) VS. THE ITO 23(2)(1), BANDRA KURLA COMPLEX, BANDRA (EAST) MUMBAI. (RESPONDENT) APPELLANT BY : SHRI DEVE NDRA JAIN RESPONDENT BY : SHRI R.A.D YANI DATE OF HEARING 29/10/2015 DATE OF PRONOUNCEMENT 29/10/2015 ORDER PER BEENA PILLAI, J.M: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY LD. CIT(A)-11, MUMBAI VIDE ORDER DATED 24/01/2012 F OR ASSESSMENT YEAR 2005-06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF A PPEAL:- 1. THE CIT(A) HAS ERRED IN RETAINING THE ADDITION OF RS.3,31,500/- AS UNEXPLAINED CASH CREDIT UNDER SECTION68. THE SAME MAY PLEASE BE DEL ETED. 2. THE BRIEF FACTS OF THE CASE AS RECORDED BY THE L D.AO ARE AS UNDER. ITA NO.2024/MUM/2012 ASSESSMENT YEAR 2005-06 2 THE ASSESSEE IS AN INDIVIDUAL AND HAS FILED HER RET URN OF INCOME, DECLARING TOTAL INCOME OF RS.35,086/- ON 3/2/2006. THE CASE WAS RE OPENED UNDER SECTION 148 OF THE INCOME TAX ACT, 1961(IN SHORT THE ACT) AND NOT ICES UNDER SECTION 143(2) & 142(1), WERE ISSUED AND DULY SERVED UPON THE ASSESS EE. THE ASSESSEE DERIVED INCOME FROM PARTNERSHIP FIRM, M/S.PRASAD ENTERPRISE S AND INCOME FROM OTHER SOURCES. DURING THE RELEVANT YEAR IT WAS NOTICED B Y THE LD. AO THAT, THE ASSESSEE HAD INTRODUCED CAPITAL IN THE PARTNERSHIP FIRM. TH E ASSESSEE FILED ALL THE RELEVANT DETAILS AS CALLED BY THE LD. AO. ON VERIFICATION OF THE DOCUMENTS FILED, THE ASSESSING OFFICER OBSERVED THAT AN AMOUNT OF RS.11, 36,000/- WAS RECEIVED BY THE ASSESSEE BY WAY OF GIFTS FROM RELATIVES AND HER BRO THER. THE ASSESSING OFFICER CALLED FOR THE DETAILS IN RESPECT OF THE GIFTS RECE IVED. THE ASSESSEE WAS ALSO ASKED TO FILE BANK STATEMENT, RETURN OF INCOME AND CAPACI TY OF THE DONOR TO MAKE SUCH GIFTS. THE LD. AO OBSERVED FROM THE DETAILS FILED THAT, ASSESSEE WAS TAKING SHELTER OF WITHDRAWALS OF THE ASSESSMENT YEAR 2002-03, 200 3-04 AND 2004-05 TO PROVE THAT THE SAME ARE GIFTS RECEIVED. THE ASSESSEE HAD RECEIVED PAYMENTS FROM SHRI SUDHIR KUMAR GUPTA, BEING THE BROTHER OF THE ASSESS EE, WHO HAD MADE GIFTS ON VARIOUS DATES. THE ASSESSING OFFICER HELD THAT, AS THE ASSESSEE COULD NOT EXPLAIN THE CASH CREDIT, WHICH WAS DEPOSITED IN THE PARTNER SHIP FIRM, WHICH HAS TAKEN GUISE OF THE GIFTS. AN AMOUNT OF RS.10.78 LACS WAS TAXE D AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT.. 2.1 THE ASSESSING OFFICER FURTHER OBSERVED THAT, TH E ASSESSEE HAD INTRODUCED RS.25.90 LACS IN THE PARTNERSHIP FIRM BUT SINCE THE ASSESSEE FAILED TO EXPLAIN THE INTRODUCTION OF RS.3,31,500/- OUT OF RS.25.90 LACS, THE LD. AO MADE AN ADDITION UNDER SECTION 68 OF THE ACT, BEING UNEXPLAINED CASH CREDIT. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER TH E ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). ITA NO.2024/MUM/2012 ASSESSMENT YEAR 2005-06 3 3. THE LD. CIT(A) HELD AS UNDER:- 2.5 CONSIDERING THE SUBMISSION OF THE LD. AR AND T HE FACTS OF THE CASE, IT IS HEREBY HELD THAT IDENTITY OF DONOR, RELATIONSHIP BETWEEN APPELL ANT AND DONOR AND CREDITWORTHINESS OF THE DONOR CANNOT BE DISPUTED. THE DONOR IS BROTHER OF THE APPELLANT WHO IS EMPLOYEE ABROAD AND WHOSE INCOME IS NOT TAXABLE IN INDIA. IN VIEW OF THE SUBMISSION OF DONOR AS WELL AS DONE APPELLANT BOTH THAT FIT HAS BEEN PAID OUT OF CASH WITHDRAWALS FROM THE BANK ACCOUNTS OF DONOR BY HIS FATHER ON THE INSTRUCTION OF DONOR AND GIVEN TO THE APPELLANT AS GIFT ON THE INSTRUCTION AND ALSO ON THE DECLARATION OF THE DONOR TO THIS EFFECT, EVEN GENUINENESS OF TRANSACTIONS CANNOT BE DISPUTED. TH EREFORE, IT IS HEREBY HELD THAT THE APPELLANT HAS RECEIVED GIFT OF RS.10.78 LACS FROM H IS BROTHER OUT OF NATURAL LOVE AND AFFECTION AND ACCORDINGLY, THE ADDITION OF RS.10.78 LAKHS MADE ON THIS ACCOUNT IS DELETED. THIS GROUND IS ALLOWED. ON THE ADDITION IN RESPECT OF UNEXPLAINED CASH CRED IT UNDER SECTION 68 OF THE ACT TO THE EXTENT OF RS.3,31,500/-, THE CIT(A) HELD AS UND ER: 3.3 HOWEVER, IN THE SUBMISSION, THE LD.AR COULD N OT SHOW THAT RS.3,31,500/- WAS INTRODUCED IN THE FIRM OUT OF OPENING BALANCE OR TH IS SUM WAS OPENING CREDIT BALANCE IN THE ACCOUNT OF THE APPELLANT IN THE BOOKS OF THE FI RM. HENCE, THE ORDER OF THE ASSESSING OFFICER ON THIS ACCOUNT IS HEREBY UPHELD. THIS GRO UND IS DISMISSED. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE AS SESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE PAPER BOOK FILED BY LD. REPRESENTATIVE FOR THE ASSE SSEE. THE ISSUE BEFORE US IS IN RESPECT OF RS.3,31,500/- CONFIRMED BY LD. CIT(A) BE ING DIFFERENCE BETWEEN THE GROSS INVESTMENT AND THE CASH DEPOSITED BY THE ASSE SSEE, INTO THE PARTNERSHIP ACCOUNT. THE ASSESSEE HAD INTRODUCED RS.25.90 LACS AS CAPITAL INTO THE FIRM OF WHICH SHE IS A PARTNER. ON PERUSAL OF THE SUMMARY O F THE BANK ACCOUNT NO. OD- DEP-68 WITH JANKALYAN BANK, MULUND(E)(PAGE 4 OF THE PAPER BOOK), HELD BY THE ASSESSEE, IT IS OBSERVED THAT CASH AMOUNTING TO RS .22,22,500/- HAS BEEN DEPOSITED INTO THE SAID ACCOUNT BY THE ASSESSEE. OUT OF THE TOTAL CASH DEPOSITED RS.10,78,000/- AMOUNTED TO GIFT, THE ADDITION OF W HICH HAS BEEN DELETED BY THE ITA NO.2024/MUM/2012 ASSESSMENT YEAR 2005-06 4 LD.CIT(A). THERE IS ALSO AT THE SAME TIME CAPITAL A MOUNTING TO RS.11,16,000/- WAS WITHDRAWN AND DEPOSITED TO THE 6. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT TH E SAID AMOUNT OF RS.3,31,000/- STANDS EXPLAINED AS THE SAME IS AN IN CLUSIVE PART OF RS.14,74,000/-. THE ASSESSEES APPEAL IS ACCORDINGLY ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/10/20 15 29/10/2015 SD/- SD/- ( , /RAJENDRA ) ( /BEENA PILLAI) /ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; #$ DATED 29/10/2015 !' #$ / COPY OF THE ORDER FORWARDED TO : 1. %&'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. +, ( %& ) / THE CIT(A)- 4. +, / CIT 5. -. ),$/0 , %&1 %/0 , / DR, ITAT, MUMBAI 6. 2 / GUARD FILE. / BY ORDER, *-&, ), //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . $ . ./ VM , SR. PS