Sri Banwarilall Shah, Paschim Medinipur V. ITO, Ward - 39(4), Midnapore

ITA 2417/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2129 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-06-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 19-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHURY CIT SR DR R
• Assessee Lawyers: GOUTAM GHOSH
• Keywords: Gift; Source of fund; Onus to prove
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER] I.T.A. NO. 2417/KOL/2018 ASSESSMENT YEAR: 2008-09 SRI BANWARILALL SHAH...............APPELLANT BULBULCHATTI P.O.: KHARAGPUR DIST: PASCHIM MEDINIPUR PIN 721 301 (WB) [PAN : AMBPS 8280 K] INCOME TAX OFFICER, WARD 39(4), MIDNAPORE..........................................................RESPONDENT APPEARANCES BY: SHRI GOUTAM GHOSH, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI ROBIN CHOUDHURY, ADDL. CIT SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JUNE 10 TH , 2019 DATE OF PRONOUNCING THE ORDER : JUNE 19 TH , 2019 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 11, KOLKATA, (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 26/06/2018, FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM A PARTNERSHIP FIRM AND LOTTERY BUSINESS. HE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008- 09 ON 09/03/2009 DECLARING TOTAL INCOME OF RS.1,99,460/- WHICH INCLUDED AGRICULTURAL INCOME OF RS.25,000/-. THE ASSESSEE CLAIMED THAT HE HAS GIVEN AN AMOUNT OF RS.5,55,662/- AS GIFT TO HIS SON MR. MANOJ SHAH, WHICH WAS UTILISED BY HIS SON TO PURCHASE LAND. ON THE GROUND THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURCE FROM WHICH THE GIFT IN QUESTION WAS MADE, THE ASSESSING OFFICER MADE AN ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. THE MATTER TRAVELLED TO THE CIT(A) AND LATER TO ITAT. THIS BENCH OF THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION AFTER CONSIDERING THE CASH FLOW STATEMENT FURNISHED 2 I.T.A. NO. 2417/KOL/2018 ASSESSMENT YEAR: 2008-09 SRI BANWARILALL SHAH BY THE ASSESSEE. THE LD. CIT(A) CONSIDERED THE CASH FLOW STATEMENT AND THEREAFTER DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE EVIDENCE FILED BY THE ASSESSEE IS WEAK AND UNACCEPTABLE. 3. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE ME. 4. HEARD SHRI GAUTAM GHOSH, THE LD. COUNSEL FOR THE ASSESSEE AND SHRI ROBIN CHOUDHURY, ON BEHALF OF THE REVENUE. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, I HOLD AS FOLLOWS:- 5. THE EXPLANATION GIVEN BY THE ASSESSEE IS BROUGHT OUT BY THE LD. CIT(A) AT PAGE 10 OF HIS ORDER, WHICH IS EXTRACTED FOR READY REFERENCE :- 10. DURING THE APPELLATE PROCEEDINGS THE LD. AR SUBMITTED A CASH FLOW STATEMENT AND ALSO STATED THAT THE SOURCES FOR THIS GIFT WORTH RS.5,55,662 WERE OUT OF CASH AVAILABLE WITH THE BUSINESS OF THE APPELLANT. THE DETAILS OF SUCH SOURCES WERE PROVIDED AS UNDER:- OPENING BALANCE : RS.1,74,374 SURPLUS OUT OF LORRY SALES : RS.25,000 MISCELLANEOUS INCOME : RS.30,000 PROFITS FROM TRANSPORT BUSINESS : RS.81,400 OUTSTANDING CREDIT BILL BALANCES : RS.2,52,540 TOTAL : RS.5,63,314 5.1. THE ASSESSEE FILED A PAPER BOOK WHEREIN THIRD PARTY EVIDENCES WERE FILED IN SUPPORT OF EACH OF THESE SOURCES OF INCOME. COPY OF THE BALANCE SHEET WAS ALSO FILED. THE LD. CIT(A) HAS REJECTED THESE EXPLANATIONS OF THE ASSESSEE BY HOLDING THAT THE CONFIRMATION FROM TARA MA SERVICE STATION, DOES NOT CLARIFY AS TO WHETHER THE MONEY WAS PAID TO THE ASSESSEE DURING THE YEAR. THE LEDGER ACCOUNT COPY DEMONSTRATES THAT THIS AMOUNT WAS PAID DURING THE YEAR. IN MY VIEW, THE ASSESSEE HAS DISCHARGED THE BURDEN THAT LAY ON IT BY PRODUCING THIRD PARTY EVIDENCE IN SUPPORT OF THE SOURCES OF FUNDS USED FOR MAKING THE GIFT TO HIS SON. THE LD. CIT(A) WAS FACTUALLY INCORRECT IN STATING THAT THE ASSESSEE HAS EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE GIFT WAS MADE OUT OF WITHDRAWALS FROM ASSESSEES CAPITAL 3 I.T.A. NO. 2417/KOL/2018 ASSESSMENT YEAR: 2008-09 SRI BANWARILALL SHAH ACCOUNT WITH SURAJ SERVICE STATION. THIS WAS A DIFFERENT GIFT GIVEN BY THE ASSESSEE TO HIS SON AND IS NOT CONNECTED WITH THE GIFT WHICH WE ARE EXAMINING. SIMPLY REJECTING THE EXPLANATION AND EVIDENCE PRODUCED BY THE ASSESSEE WITHOUT ENQUIRY IS NOT CORRECT. THERE SHOULD BE SOME INVESTIGATION MADE BY THE REVENUE AUTHORITIES TO DISPROVE THE CLAIM OF THE ASSESSEE. AS THIS IS NOT DONE, THE ADDITION IN QUESTION IS DELETED ON THE GROUND THAT THE ASSESSEE HAS DISCHARGED THE BURDEN OF PROOF THAT LAY ON IT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 19 TH DAY OF JUNE, 2019. SD/- [ J. SUDHAKAR REDDY] ACCOUNTANT MEMBER DATED : 19.06.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. SRI BANWARILALL SHAH BULBULCHATTI P.O.: KHARAGPUR DIST: PASCHIM MEDINIPUR PIN 721 301 (WB) 2. INCOME TAX OFFICER, WARD 39(4), MIDNAPORE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES