Smt. Bapi Bose, Malda V. ITO, Ward - 1, Malda, Malda

ITA 2426/KOL/2005

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54732 (ITAT-KOLKATA)
• Duration Of Justice: 6 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2001-2002
• Appeal Filed On: 24-11-2005
• Court: TRIBUNAL
• Department Lawyers: R GUPTA
• Assessee Lawyers: N O N E
• Keywords: Gift; Income from undisclosed sources; Share purchase agreement

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA () BEFORE , ) [BEFORE SRI MAHAVIR SINGH, JM] / I.T.A NO. 2425/KOL/2005 !' !' !' !'/ // / ASSESSMENT YEAR: 2001-02 SRI SUMAN BOSE VS. INCOME-TAX OFFICER, WD-1, MAL DA (PAN-AEAPB 1232 R) ($% /APPELLANT ) (&'$%/ RESPONDENT ) & / I.T.A NO. 2426/KOL/2005 !' !' !' !'/ // / ASSESSMENT YEAR: 2001-02 SMT. BAPI BOSE VS. INCOME-TAX OFFICER, WD-1, MA LDA (PAN-ADSPB 1149 C) ($% /APPELLANT ) (&'$%/ RESPONDENT ) DATE OF HEARING: 08.12.2011 DATE OF PRONOUNCEMENT: 08.12.2011 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI R. GUPTA () / ORDER BOTH THESE APPEALS BY ASSESSEE ARE ARISING OUT OF S EPARATE ORDERS OF CIT(A), JALPAIGURI IN APPEAL NO.134/CIT(A)/JAL DATED 24.06.2005 AND NO . 135/MLD/CIT(A)/JAL DATED 23.06.2005. ASSESSMENTS, IN THESE CASES, WERE FRAME D BY ITO, WARD-1, MALDA U/S. 147/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) FOR ASSESSMENT YEAR 2001- 02 VIDE HIS SEPARATE ORDERS DATED 31.03.2004 AND 25 .03.2004. 2. AT THE OUTSET, I FIND THAT ADJOURNMENT PETITIONS HAVE BEEN PLACED IN FILE BY STATING THE REASON THAT THE COUNSEL SHRI S. B. PUTATUNDA, ADVOC ATE, WHO IS APPEARING FOR ASSESSEE WAS ADMITTED TO HOSPITAL FOR CERTAIN SERIOUS AILMENTS A ND STILL UNDER TREATMENT OF DR. AND UNABLE TO GO OUTSIDE AND APPEAR BEFORE TRIBUNAL. I FIND FROM THE CERTIFICATE OF MEDICAL OFFICER OF AMRI, WHICH STATES THE DISEASE AS UNDER: COMPLAINTS ON REPORTING: DYSPEPSIA AND CONSTIPATION FOR 6 DAYS. HE IS A KNOWN CASE OF HTN ON TAB FELODIPINE (5 MG ) 1 TAB OCE DAILY. FOR DYSPEPSIA TOOK H2 BLOCKERS. NOW COMPLAINTS OF GENERALIZED WE AKNESS. LOW GRADE FEVER (99 DEGREE F) FOR 1 TO 2 DAYS. THE DISEASE OF DYSPEPSIA AND CONSTIPATION THE ASSE SSEE SUFFERING FROM AND THAT ALSO ON 20 TH OCTOBER, 2011 AS PER CERTIFICATE, IS NOT A SERIOUS AILMENT WHICH PREVENTED THE ASSESSEES COUNSEL 2 ITA 2425 & 2426/K/2005 SHRI SUMAN BOSE & SMT. BAPI BOSE A.Y.01-02 FROM ATTENDING THE HEARING. HENCE, I DO NOT GRANT ADJOURNMENT AS THE MATTER IS VERY OLD AND IS ON BOARD FROM 30.03.2006 AND AT LEAST 40/50 TIMES T HIS WAS ADJOURNED AT THE INSTANCE OF ASSESSEES COUNSEL AND REASONS WERE MORE OR LESS TH E SAME. HENCE, AFTER REJECTING THE ADJOURNMENT PETITION, I ADJUDICATE THIS APPEAL ON M ERITS. 3. FURTHER, THESE APPEALS ARE TIME BARRED BY 58 DAY S AND AS PER CONDONATION PETITION FILED BY THESE ASSESSEES, THE REASON IS SAME, WHICH READS AS UNDER: 1. THE ASSESEE HAS FILED TODAY (23/11/05) AN APPEA L AGAINST THE ORDER OF LD. CIT(A) JALPAIGURI. THE ORDER OF THE CIT APPEAL OFFICER WA S RECEIVED BY THE ASSESSEE IN THE LAST WEEK OF JULY, 2005. THE APPEAL IS THUS DELAYED. 2. THE APPELLANT SUBMITS THAT THE DELAY IN FILING T HE APPEAL WAS DUE TO CIRCUMSTANCE BEYOND HIS CONTROL. ON RECEIPT OF THE ORDER THE AS SESSEE COULD NOT PROCEED THE CASE DUE TO HIS ILLNESS AND ALSO FOR HIS FATHERS SERIOUS IL LNESS. THE ASSESSEES FATHER IS ATTACKED BY PARALYSIS FOR LONG TIME AND TOTAL FAMILY WAS IN TURMOIL FOR THIS INCIDENCE. AFTER PASSING OF CRUCIAL TIME AND GETTING SOME FREE FROM ANXIETY THE ASSESSEE COULD MADE CONTRACT WITH HIS TAX ADVISOR WHO ADVISED THE APPEL LANT TO FILE AN APPEAL. THE LD. SR. DR SHRI R. GUPTA HAS NOT SERIOUSLY OBJE CTED THE CONTENTION. HENCE, I CONDONE THE DELAY AND ADMIT THESE APPEALS AS THERE IS REASONABL E CAUSE FOR ASSESSEE NOT TO FILE THESE APPEALS IN TIME. 4. THE FIRST COMMON ISSUE IN THESE TWO APPEALS OF A SSESSEES IS AS REGARDS TO ADDITION OF RS.50,000/- AND RS.1,18,000/- IN THE CASE OF SHRI S UMAN BOSE AND SMT. BAPI BOSE RESPECTIVELY ON ACCOUNT OF UNEXPLAINED GIFT RECEIVED BY ACCOUNT PAYEE CHEQUE. FOR THIS, ASSESSEES RAISED FOLLOWING GROUND NO. 1 IN RESPECT OF ITA NO. 2425/K /2005: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A), JAL WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE APPELLANT F OR THE GIFT OF RS.50,000/- RECEIVED BY THE ASSESSEE AS THE GIFT WAS MADE BY CROSSED CHEQUE AND WAS GENUINE. GROUND NO.1 IN RESPECT OF ITA NO.2426/K/2005: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A), JAL WAS NOT JUSTIFIED IN REJECTING THE RELIEF SOUGHT BY THE APP ELLANT FOR THE GIFT OF RS.1,18,000/- RECEIVED BY THE ASSESSEE. 5. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT SMT. BAP BOSE RECEIVED LOAN OF RS.1 LAC VIDE ACCOUNT PAYEE CHEQUE NO.027581 DRAWN ON UB I, NEAR MARKET BRANCH, MALDA FROM SAVINGS BANK ACCOUNT OF SHRI MRINAL BOSE, ACCOUNT N O.10924 DATED 24.03.1997. THIS AMOUNT BEARS INTEREST AND ACCUMULATED INTEREST OF RS.18,00 0/- WAS CREDITED IN THE FY 1999-2000 RELEVANT TO ASSESSMENT YEAR 2000-01 AND THE AMOUNT BECAME RS.1,18,000/-. 3 ITA 2425 & 2426/K/2005 SHRI SUMAN BOSE & SMT. BAPI BOSE A.Y.01-02 6. SIMILARLY, IN THE CASE OF SHRI SUMAN BOSE, AMOUN T OF RS.50,000/- WAS RECEIVED AS LOAN FROM SHRI MRINAL BOSE VIDE CHEQUE NO.027583 DRAWN O N UBI, NEAR MARKET BRANCH, MALDA FROM HIS SAVINGS BANK ACCOUNT NO.10924 DATED 25.03. 1997. THESE TWO AMOUNTS IN THE CASE OF SMT. BAPI BOSE AND SHRI SUMAN BOSE WERE OUTSTANDING TILL FY 2000-01 AND IN BOTH THE CASES THE AMOUNTS OF RS.1,18,000/- AND RS.50,000/- IN THE RESPECTIVE RETURNS OF THESE ASSESSEES WERE CREDITED IN THE CAPITAL ACCOUNT BY TREATING THE SAM E AS GIFT AND BY TAKING THE LOAN ACCOUNTS AS NIL. THE ASSESSING OFFICER DURING THE COURSE OF AS SESSMENT PROCEEDINGS ADDED THESE AMOUNTS AS UNEXPLAINED IN ASSESSMENT YEAR 2001-02 IN BOTH C ASES. AGGRIEVED, THESE ASSESSEES PREFERRED APPEALS BEFORE CIT(A), WHO ALSO CONFIRMED THESE GIFTS AS UNEXPLAINED WITHOUT GOING INTO MERITS OF THE CASE, WHETHER THE GIFTS ARE EXPL AINED OR UNEXPLAINED. I AM OF THE VIEW THAT ONCE THESE TWO AMOUNTS WERE RECEIVED BY THESE TWO A SSESSEES ON 24.03.1997 BY ACCOUNT PAYEE CHEQUE (PROOF QUA THIS WAS ENCLOSED BEFORE CIT(A), THE ADDITION OF UNEXPLAINED GIFT CANNOT BE MADE IN THIS ASSESSMENT YEAR I.E. 2001-02. HOWEVER , FOR FACTUAL VERIFICATION, WHETHER THESE TWO AMOUNTS WERE ADVANCED BY ACCOUNT PAYEE CHEQUE/DRAFT BY SHRI MRINAL BOSE ON 24.03.1997 DRAWN ON UBI, NEAR MARKET BRANCH, MALDA CAN BE VERI FIED BY ASSESSING OFFICER, HOWEVER, CIT(A) HAS ALREADY VERIFIED THIS. IN CASE, THIS IS TRUE THEN THIS ADDITION WILL BE DELETED BY ASSESSING OFFICER AND IF FACTUALLY THIS IS WRONG, T HE ADDITION WILL BE SUSTAINED. THIS ISSUE OF ASSESSEES APPEALS IS ALLOWED FOR STATISTICAL PURPO SES FOR LIMITED VERIFICATION. 7. THE NEXT COMMON ISSUE IN THESE TWO APPEALS IS AS REGARDS TO THE ADDITION CONFIRMED BY CIT(A) ON ACCOUNT OF VALUE OF SOME XEROX COPY OF SH ARE CERTIFICATES IN THE NAME OF SMT. BAPI BOSE AND SHRI SUMAN BOSE. FOR THIS, ASSESSEES RAIS ED FOLLOWING GROUND NO. 3 IN ITA NO. 2425/K/2005 AND GROUND NO. 2 IN ITA NO. 2426/K/2005 : GROUND NO. 3 IN ITA NO.2425/K/2005: THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, LD. CIT(A), JAL WAS NOT JUSTIFIED IN REJECTING THE RELIEF SOUGHT BY THE APPELLANT FOR T HE ADDITION OF RS.23,000/- JUST ON THE BASIS OF XEROX COPY OF SHARE CERTIFICATE OF OTHER PERSONS NAME FOUND IN HIS RESIDENCE. GROUND NO. 2 IN ITA NO. 2426/K/2005: THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A), JAL WAS NOT JUSTIFIED IN REJECTING THE APPEAL SOUGHT BY THE APPELLANT FOR AD DING THE VALUE OF XEROX COPY OF SHARE CERTIFICATE NOT IN THE NAME OF THE ASSESEE AND AGAI N THE SAME AMOUNT HAS ADDED TWICE BY THE LD. A.O. WITH THE INCOME OF THE ASSESSEES SON SRI SUMAN BOSE AND AGAINST WITH THE INCOME OF THE ASSESSEE ALSO. 8. THE BRIEF FACTS ARE THAT DURING THE COURSE OF SE ARCH BY CBI/AC B AT THE RESIDENCE OF SHRI SUMAN BOSE, XEROX COPIES OF SHARE CERTIFICATE VALUI NG RS.23,000/- WAS FOUND WHICH ARE AS UNDER: 4 ITA 2425 & 2426/K/2005 SHRI SUMAN BOSE & SMT. BAPI BOSE A.Y.01-02 PARTICULARS TOTAL NO. OF SHARES RATE VALUE OF SH ARES 1)WEBEL -SL ENERGY SYSTEMS LIMITED 2) SRG INFOTEC (INDIA) LIMITED 1000 1000 @ 12/- @ 11/- TOTAL : RS.12,000/- RS.11,000/- RS.23,000/- THE ASSESSING OFFICER IN THE CASE OF SMT. BAPI BOSE AND SHRI SUMAN BOSE MADE ADDITION ON ACCOUNT OF XEROX COPIES OF SAME SHARE CERTIFICATE A MOUNTING TO RS.23,000/-. CIT(A) ALSO CONFIRMED THE ACTION OF ASSESSING OFFICER. 9. AFTER HEARING LD. DR SHRI R. GUPTA I FIND THAT T HE ADDITION IS BASED ON XEROX COPIES OF SHARE CERTIFICATE AND IT IS NOT CLEAR FROM THE SHAR E CERTIFICATE IN WHOSE NAME THIS SHARE CERTIFICATE STANDS EVEN THE ASSESSING OFFICER HAS NOT GOT IT VE RIFIED FROM THE CONCERNED COMPANY IN WHOSE NAME THIS SHARE CERTIFICATE STANDS AND WHETHER THIS IS TRANSFERRED IN ASSESSEES NAME OR NOT. EVEN IT IS NOT CLEAR HOW THESE SHARES PERTAIN TO TH ESE TWO ASSESSEES. SINCE THESE ASSESSEE AS WELL AS ASSESSING OFFICER COULD NOT ESTABLISH THE A BOVE FACTS, I AM OF THE VIEW THAT LET THIS ISSUE BE DECIDED AFRESH AFTER VERIFICATION OF OWNERSHIP O F THESE SHARES. MERELY ON THE BASIS OF XEROX COPIES THE ADDITION CANNOT BE MADE AND IN ANY CASE NOT IN THE CASE OF BOTH THE ASSESSEES BUT ONLY IN ONE HAND ADDITION CAN BE MADE. ACCORDINGLY , THIS ISSUE IN BOTH THE APPEALS IS SET ASIDE TO THE FILE OF ASSESSING OFFICER. THIS GROUND OF A PPEALS OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10. THE NEXT ISSUE IN ITA NO.2425/K/2005 IS AS REGA RDS TO CONFIRMATION OF ADDITION OF UNEXPLAINED GIFT OF RS.80,000/-. FOR THIS, ASSESSE E RAISED FOLLOWING GROUND NO.2: 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A), JAL WAS NOT JUSTIFIED IN REJECTING THE RELIEF SOUGHT BY THE APP ELLANT FOR GIFT OF RS.80,000/- RECEIVED BY THE ASSESEE AS THE DONORS SUBMISSION ALSO NOT MISM ATCHED REGARDING THE GENUINITY OF THE GIFT. 11. I HAVE HEARD LD. DR SHRI R. GUPTA AND GONE THRO UGH FACTS AND CIRCUMSTANCES OF THE CASE. I FIND THAT THE ASSESSEE RECEIVED GIFT FROM SHRI PARTHA PAUL DURING THE YEAR UNDER CONSIDERATION. SHRI PARTHA PAUL APPEARED BEFORE AS SESSING OFFICER AND ADMITTED GIFT AS GENUINE BY PRODUCING EVIDENCES THAT THE SAID GIFT WAS REFLE CTED IN HIS ACCOUNTS AS WELL AS RETURN FILED WITH THE I. T. DEPTT. BUT THE ASSESSING OFFICER WAS OF THE VIEW THAT HE IS NOT RESIDING IN MALDA BUT RESIDING IN LILUAH, HOWRAH AND ACCORDING TO HIM THIS GIFT IS NOT GENUINE. THE CIT(A ALSO CONFIRMED THE ACTION OF ASSESSING OFFICER. I FIND THAT NONE OF THE AUTHORITIES BELOW HAVE GONE INTO THE ACCOUNTS OF SHRI PARTHA PAUL AND THE FACTU M THAT WHEN THE ASSESSEE IS BEING ASSESSED, WHETHER HE HAS DISCLOSED THIS GIFT GIVEN TO ASSESSE E IN THE RETURN OF INCOME, IN THE ABSENCE OF THESE FACTS, I AM UNABLE TO DECIDE THIS ISSUE. HEN CE, I SET ASIDE THIS ISSUE TO THE FILE OF 5 ITA 2425 & 2426/K/2005 SHRI SUMAN BOSE & SMT. BAPI BOSE A.Y.01-02 ASSESSING OFFICER TO RE-ADJUDICATE AFTER CONSIDERIN G SUBMISSIONS OF THE ASSESSEE AS PER LAW. THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. 12. NEXT ISSUE IN ITA NO. 2426/K/2005 IS AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF VALUE OF FIXED DEPOSIT OF RS.24,000/-. FOR THIS, ASSESSEE RAISED FOLLOWING GROUND NO.3: THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) JAL WAS NOT JUSTIFIED IN REJECTING THE APPEAL SOUGHT BY THE APPELLANT FOR ADDING THE VALUE OF RS.24,000/- AGAINST FIXED DEPOSIT. 13. I HAVE HEARD LD. DR SHRI R. GUPTA AND GONE THRO UGH FACTS AND CIRCUMSTANCES OF THE CASE. I FIND THAT THE ASSESSEE HAS PURCHASED FIXED DEPOSIT FROM ITC CLASSIC FINANCE LTD. ON 27.06.1995 VIDE RECEIPT NO. 02/199506/53666C/53667C /53702C AT RS.12,600/- (I.E.4200X3) AND THESE WERE MATURED IN JUNE, 2000 AMOUNTING TO R S.24,000/-. ACCORDING TO ASSESSING OFFICER, THIS WAS NOT DECLARED IN ACCOUNTS OF ASSES SEE. HENCE, HE CONSIDERED THIS AS INCOME FROM UNDISCLOSED SOURCES. THE CIT(A) ALSO CONFIRME D THE ACTION OF ASSESSING OFFICER. I FIND THAT PRIMA FACIE THIS ADDITION CANNOT BE SUSTAINED REASON BEING THE ASSESSEE HAS PURCHASED THESE FIXED DEPOSITS ON 27.6.1995 I.E. IN FY 1995-96 RELE VANT TO ASSESSMENT YEAR 1997-98. IF ANY ADDITION IS TO BE MADE IN RESPECT TO ORIGINAL INVES TMENT OF RS.12,600/- THAT CAN BE MADE IN ASSESSMENT YEAR 1997-98 AND NOT IN ASSESSMENT YEAR 2001-02. IN RESPECT TO ACCRUED INTEREST, IT IS NOT CLEAR WHETHER THE INTEREST IS RECEIVED BY ASSESSEE ON ACCRUAL BASIS OR ON RECEIPT BASIS. IF THE INTEREST RECEIVED ON ACCRUAL BASIS THE ADDITION QUA THIS YEAR INTEREST CAN BE MADE IN THIS YEAR AND NOT OF ENTIRE INTEREST. IN CASE, INTEREST IS R ECEIVED ON RECEIPT BASIS THE AMOUNT OF RS.24,000/- - RS.12,600/- CAN BE ADDED IN THIS YEAR . THIS FACT CAN BE VERIFIED BY THE ASSESSING OFFICER AFTER PROVIDING REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. HENCE, THIS ISSUE IS ALSO SET ASIDE TO ASSESSING OFFICER. THIS GROUN D OF APPEAL OF ASSESSEE IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 14. IN THE RESULT, APPEALS OF ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. 15. ORDER IS PRONOUNCED IN OPEN COURT. SD/- , (MAHAVIR SINGH) JUDICIAL M EMBER ( *+ *+ *+ *+) )) ) DATED : 8 TH DECEMBER, 2011 ,- ./ 0 JD.(SR.P.S.) 6 ITA 2425 & 2426/K/2005 SHRI SUMAN BOSE & SMT. BAPI BOSE A.Y.01-02 () 1 &2 3(2!4- COPY OF THE ORDER FORWARDED TO: 1 . $% / APPELLANT SMT. BAPI BOSE & SHRI SUMAN BOSE, MALAN CHA PALLY, MOKDUMPUR, MALDA -732 103 2 &'$% / RESPONDENT, ITO, WARD-1, MALDA 3 . ) ( )/ THE CIT(A), JALPAIGURI 4. ) / CIT, JALPAIGURI 5 . ;< & / DR, KOLKATA BENCHES, KOLKATA '2 &/ TRUE COPY, ()=/ BY ORDER, / /ASSTT. REGISTRAR .