KAMALA P. YADAV, MUMBAI V. I.T.O. WD.23(1)(3), MUMBAI

ITA 2618/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8416 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 05-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 18-04-2012
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Keywords: Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI D. KARUNAKARA RAO, ACCOUNTAT MEMBER I.T.A.NO. 2 6 1 8/M/2012 (AY: 2008 - 2009 ) KAMALA P. YADAV, A/1107, MAHAVIR UNIVERSE, OPP. JAIN TEMPLE, LBS MARG, BHANDUP (W), MUMBAI 400 078. PAN: AANPY3253A VS. ITO, WARD 23(1)(3), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI ASGHAR ZAIN DATE OF HEARING: 5.11.2014 DATE OF ORDER: 21 .11.2014 O R D E R PER D. KARUNAKARA RAO, AM : THIS APPEAL FILED BY THE ASSESSEE ON 18.4.2012 IS AGAINST THE ORDER OF THE CIT (A) - 36, MUMBAI DATED 9.2.2012 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING EFFECTIVE GROUND WHICH READS AS UNDER: LD CIT (A) HAS ERRED IN CONFIRMING ADDITION OF CASH GIFT RECEIVED APPELLANT FROM HER AGRICULTURIST BROTHERS AND NOT CONSIDERING INCOME CERTIFICATE ISSUED BY TAHSILDAR REGARDING INCOME OF DONORS. 3. BRIEFLY STATED RE LEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF MANUFACTURE OF PRINTED CARRY BAGS AND PRECISION MACHINING LABOUR JOBS. ASSESSEE FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 5,37,770/ - . ASSESSMEN T WAS COMPLETED U/S 143(3) OF THE ACT AND THE ASSESSED INCOME WAS DETERMINED AT RS. 12,65,205/ - . IN THE ASSESSMENT, AO NOTICED THAT THE ASSESSE E PURCHASED THE FLAT WITH THE CASH GIFTS RECEIVED FROM HER BROTHERS WHO ARE AGRICULTURISTS. AO MADE ADDITION OF RS. 6.8 LAKHS ON ACCOUNT OF SUCH CASH GIFTS. DETAILS OF THE ASSESSEES BROTHERS AND THE AMOUNT OF CASH GIFTS ARE AS UNDER: 1. MR. JAGDHARI H YADAV 14.11.2007 RS. 1.15 LAKHS 2 2. MR. JAGDHARI H YADAV 25.09.2007 RS. 1 LAKH 3. MR. RAMDHAR H YADAV 28.05.2007 RS. 4 .65 LAKHS 4. DURING THE SCRUTINY PROCEEDINGS, ASSESSEE SUBMITTED THAT THE BROTHERS HAVE GIVEN SUCH CASH GIFTS OUT OF LOVE AND AFFECTION TOWARDS HER . IN SUPPORT OF THE SAME, THEY NOT ONLY FILED 7/12 EXTRACTS, EVIDENCING THE A GRICULTURAL HOLDINGS, BUT ALSO INCOME CERTIFICATE FROM THE CONCERNED OFFICIALS FROM TAHASILDAR OFFICE. THE INCOME CERTIFICATE SHOWS THAT THESE BROTHERS HAVE A MONTHLY INCOME OF RS. 21,499/ - (MR. R.H. YADAV); RS. 14,612/ - (MR. J.H. YADAV) OUT OF AGRICULTURAL ACTIVITIES . AO CONSIDERED TH E SAME AND REJE CTED THE CLAIM OF THE ASSESSEE. AO PROPOSED TO MAKE THE WHOLE OF SUCH CASH GIFTS AMOUNTING TO RS. 6.8 LAKHS AS THE INCOME OF THE ASSESSEE. AO MENTIONED THAT THE ASSESSEES B ROTHERS ARE NOT ASSESSED TO TAX, THEY DO NOT HAVE PANS AND THEY HA VE NOT EXPLAINED THE MODE OF TRANSFER OF CASH TO THE ASSESSEE (SISTER). HOWEVER, AO FAILED TO CONDUCT ENQUIRIES BY SUMMON ING THE BROTHERS. AO ALSO FAILED TO ENQUIRE WITH THE SAID TAHASILDAR OFFICE REGARDING THE GENUINENESS OF THE INCOME CERTIFICATE ISSUE D BY THEM AND CONTENTS THEREIN . AGGRIEVED WITH THE ORDER OF THE AO, ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). 5. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, ASSESSEE FILED WRITTEN SUBMISSIONS QUESTIO NING THE ASSESSMENT MADE BY THE AO. THE CONTENTS OF THE SUBMISSIONS ARE GIVEN IN PARA 5.3 OF THE IMPUGNED ORDER. CIT (A) CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND REASONED THAT THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE ABOUT THE SAID CASH GIFTS. EVENTUALLY, CIT (A) CONFIRMED THE ORD ER OF THE AO AND THE CONTENTS OF PARA 5.4 ARE RELEVANT IN THIS REGARD. AGGRIEVED WITH THE SAME, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 6. DURING THE PROCEEDINGS BEFORE US, THERE WAS NONE APPEARED TO REPRESENT THE CASE OF THE ASSESSEE. CONSIDERING THE FACTS AVAILABLE ON RECORD AND SMALLNESS OF THE ADDITIONS INVOLVED, WE PROCEED TO ADJUDICATE THIS ISSUE IN THE ABSENCE OF THE ASSESSEE. 7. ON THE OTHER HAND, LD DR BROUGHT OUT THE ABOVE REFERRED FACTS OF THE ASSESSEE AND RELIED HEAVILY ON THE ORDERS OF THE REVENUE AUTHORITIES. 3 8. WE HAVE HEARD LD DR AND PERUSED THE FACTS OF THE CASE AS WELL AS THE PAPER BOOK (CONTAINING 19 PAGES) FILED BEFORE US. CONSIDERING THE SMALLNESS OF THE ISSUE AND THE EVIDENCES FURNISHED BY THE ASSESSEE, WE PROCEED TO ADJUDICATE THE APPEAL WITHOUT THE PRESENCE OF THE ASSESSEE. ON PERUSAL OF ORDER OF THE ASSESSMENT ORDER, WE FIND THE AO HAS NOT DONE HIS JOB MEANINGFULLY AND CONCLUSIVELY . WE HAVE PERUSED THE EVIDENCES OF THE DONORS PLACED AT PAG ES 5,6,7 AND 8 OF THE PAPER BOOK. THEY CONFIRMED THE PAYMENT OF CASH GIFTS TO THEIR SISTER OUT OF NATURAL LOVE AND AFFECTION. THEIR POSTAL ADDRESS IS CLEARLY MENTIONED. WE HAVE ALSO PERUSED THE 7/12 EXTRACTS OF THE BROTHERS WHICH ARE AVAILABLE ON PAGES 9 AND 10 OF THE PAPER BOOK. FURTHER, WE FIND THE AO HAS NOT FOUND ANY MISTAKE IN THE SAID DIRECT EVIDENCES FURNISHED BY THE ASSESSEE. AO HAS NOT EXAMINED THE BROTHERS AND THE CONCERNED OFFICIALS OF THE REVENUE AUTHORITIES WHO ISSUED THE INCOME CERTIFICAT E. UNDER THESE CIRCUMSTANCES, AO HAS MERELY DOUBTED THE TRANSACTIONS WHICH IS NOT PERMISSIBLE IN MATTERS OF ASSESSMENT. AO HAS NOT BROUGHT OUT ANY INCRIMINATING MATERIAL TO PROVE THAT THE CLAIM OF THE ASSESSEE IS NOT A BONA F IDE . IN OUR OPINION, SSESSEE HAS DISCHARGED THE ONUS IN FURNISHING THE REQUISITE PRELIMINARY INFORMATION ABOUT THE IDENTITY, SOURCES, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS AND THE ONUS IS NOW SHIFTED TO AO . IT IS THE AO WHO FAILED TO DISCHARGE THE ONUS . UNDER THESE C IRCUMSTANCES, WE ARE OF THE OPINION THAT THE ORDER OF THE CIT (A) IS REQUIRED TO BE REVERSED. ACCORDINGLY, GROUND RAISED BY THE ASSESSEE IS ALLOWED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOU NCED IN THE OPEN COURT ON 2 1 S T NOVEMBER, 2014. S D / - S D / - (H.L. KARWA) (D. KARUNAKARA RAO) PRESIDENT ACCOUNTANT MEMBER DATE: 2 1 .11.2014. AT :MUMBAI OKK COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR A, BENCH, ITAT, MUMBAI. 4 6. GUARD FILE. // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI