B.Kaliammal, CHENNAI V. ITO, Coimbatore

ITA 269/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8134 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 27-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2016
• Court: TRIBUNAL
• Department Lawyers: JAIRAM RAIPURA
• Assessee Lawyers: S SRIDHAR
• Keywords: Gift; Assessment record
• Section: 143(3); 142(1); 131; 148; 263; 63

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 2 6 9 /MDS/2016 / ASSESSMENT YEAR :20 0 9 - 1 0 SMT. B. KALIAMMAL, 116A, PALATHURAI STREET, THIRUMALAYAMPALAYAM, MADUKKARAI, COIMBATORE 641 105 . [PAN: BOUPK7593D ] VS. THE INCOME TAX OFFICER , SALARY WARD 1( 4 ) C OIMBATORE . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI S. SRIDHAR , A DVOCATE / RESPONDENT BY : S HRI JAIRAM RAIPURA , CIT / DATE OF HEARING : 27 . 12 .201 6 / DATE OF P RONOUNCEMENT : 06 . 0 1 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH I S APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX - 3 , C OIMBATORE DATED 0 9 . 12 .201 5 RELEVANT TO THE ASSESSMENT YEAR 20 09 - 1 0 . THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. PCIT ERRED IN PASSING ORDER UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] SETTING ASIDE THE ASSESSMENT ORDER PASSED UN DER SECTION 143(3) R.W.S. 147 OF THE ACT. I.T.A. NO . 2 6 9 / M/ 1 6 2 2. THE ASSESSEE IS AN INDIVIDUAL AND HAS NOT FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 - 10. THE ASSESSING OFFICER HAS NOTICED THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPE ASSESSMENT DUE TO THE AIR TRA NSACTIONS REPORTED IN THE INDIVIDUAL TRANSACTION STATEMENT. HENCE, A NOTICE UNDER SECTION 148 OF THE ACT DATED 01.06.2012 WAS ISSUED AND SERVED ON THE ASSESSEE. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 10.07.2012 ADMITTING TOTAL AG RICULTURAL INCOME OF .2,35,000/ - . SUBSEQUENTLY, A NOTICE UNDER SECTION 142 ( 1) OF THE ACT DATED 18.06.2013 WAS ISSUED TO THE ASSESSEE CALLING FOR DETAILS. A NOTICE UNDER SECTION 142(1) OF THE ACT DATED 03.01.2014 WAS ALSO ISSUED AND SERVED ON THE ASSESSEE. AS PER ITS REPORT TH ROUGH AIR, THE ASSESSEE S BANK DEPOSIT IN INDIAN OVERSEAS BANK SHOWED A CASH DEPOSIT OF .66,55,500/ - . DETAILS REGARDING SOURCE OF CASH DEPOSIT WERE CALLED FOR FROM THE ASSESSEE. THE ASSESSEE FILED ALL DETAILS INCLUDING CONFIRMATION LETTERS FROM HER HUSBAN D, BROTHER, DAUGHTER AS WELL AS JEWELS PURCHASED BY VARIOUS PARTIES FROM THE ASSESSEE. THUS, THE ASSESSING OFFICER HAS HELD THAT THE OVERALL SOURCES FOR . 66,55,500/ - HAS BEEN EXPLAINED BY THE ASSESSEE'S REPRESENTATIVE ( . 20,00,000/ - GIFT FROM HUSBAND, . 15,00,000/ - GIFT FROM BROTHER, RS.5,00,000/ - GIFT FROM DAUGHTER AND . 26,00,000/ - SALE OF JEWELLERY AND . 5,500/ - OUT OF HER OWN SAVINGS) AND ACCORDINGLY, ASSESSMENT WAS CONCLUDED BY ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT .4,31,400/ - . I.T.A. NO . 2 6 9 / M/ 1 6 3 3. AGAIN ST THE ABOVE ASSESSMENT ORDER, AFTER VERIFICATION OF ASSESSMENT RECORDS, THE LD. PCIT FOUND CERTAIN OMISSION/ERRORS WITH REFERENCE TO FAILURE TO CROSS VERIFY THE GENUINENESS OF THE CLAIMS MADE BY THE ASSESSEE, PARTICULARLY, THE GENUINENESS OF GIFT RECEIVED , SALE OF JEWELS, SOURCES FOR THE BANK TRANSACTION AND THEIR UTILIZATION. HE ALSO OBSERVED THAT THE CREDIT - WORTHINESS OF DONORS, SOURCE OF CREDITS IN BANK ACCOUNT, ETC. WERE NOT CROSS VERIFIED INDEPENDENTLY. THEREFORE, THE LD. PCIT, IN PRIMA FACIE, WAS OF THE OPINION THAT THE ASSESSMENT ORDER 29.01.2014 PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE . ACCORDINGLY, A LETTER DATED 06.11.2015 WAS ISSUED TO THE ASSESSEE UNDER SECTION 263 OF THE ACT . AFTER CONSIDERING THE WRITTEN SUBMISSIONS DATED 02.12.2015 FILED BY THE ASSESSEE AND ON VERIFICATION OF RECORDS, THE LD. PCIT HAS OBSERVED THAT THE ASSESSING OFFICER HAS NOT VERIFIED THE FOLLOWING ASPECTS: (A) SOURCE FOR THE BANK TRANSACTIONS AND THE GENUINENESS OF TRANSACTION WITH PURCHASER AND ASSESSEE S HUSBAND,. (B) CREDIT WORTHINESS OF DONORS OF GIFTS AND (C) GENUINENESS OF JEWELLERY SALE. ACCORDINGLY, THE LD. PCIT HAS DIRECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT UNDER SECTION 263 OF THE ACT. 4. AGAINST THE AB OVE ORDER OF THE LD. PCIT, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS STRONGLY I.T.A. NO . 2 6 9 / M/ 1 6 4 CONTENDED THAT THE LD. PCIT HAS ERRED IN PASSING THE ORDER UNDER SECTION 263 OF THE ACT WITHOUT APPRECIATING THE FACT THAT AFTER VERIFIC ATION OF ALL THE RECORDS, CONFIRMATION LETTERS FILED BY VARIOUS PARTIES, THE ASSESSING OFFICER HAS CONCLUDED THE ASSESSMENT AND THEREFORE, IT CANNOT BE SAID THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVE NUE AND PLEADED THAT THE 263 ORDER PASSED BY THE LD. PCIT SHOULD BE QUASHED. 5. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDER PASSED UNDER SECTION 263 OF THE ACT. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AS REQUIRED BY THE ASSESSING OFFICER, THE ASSESSEE'S REPRESENTATIVE FILED BANK ACCOUNT STATEMENT (SAVING B ANK A/C) OF SMT KALIAMMAL OF INDIAN OVERSEAS BANK, THIRUMAL AYAM PALAYAM, COIMBATORE. THIS ACCOUNT SHOWS AN AMOUNT OF CASH DEPOSIT OF . 66,55,500/ - . TO CONFIRM THE SAME, THE ASSESSING OFFICER ISSUED A LETTER DATED 14.11.2013 TO THE BRANCH MANAGER, INDIAN OVERSEAS BANK, MADUKKARI, ASKING FOR THE COPY OF THE SAVINGS BANK ACCOUNT OF SMT KALIAMMAL. THE SENIOR BRANCH MANAGER , INDIAN OVERSEAS BANK, THIRUMAIAYAMPALAYAM, M ADUKKARI VIDE HIS LETTER DATED 23.11.2013 HAS FURNISHED THE COPY OF THE SAVINGS BANK ACCOUNT MAINTAINED BY SMT I.T.A. NO . 2 6 9 / M/ 1 6 5 KALIAMMAL AND ALSO THE FIXED DEPOSIT DETAILS. THUS IT IS CONFIRMED THAT THE ASSESSEE'S SAVINGS BANK ACCOUNT SHOWED C ASH DEPOSIT OF RS 66,55,500/ - . 6.1 FURTHER, THE ASSESSING OFFICER HAS CALLED FOR SOURCES FOR THE DEPOSIT OF . 66,55,500/ - FROM THE ASSESSEE. THE ASSESSEE'S REPRESENTATIVE VIDE HER LETTER DATED 20 .0 1 . 2014 HAS STATED THAT DURING THE YEAR THE ASSESSEE HAS RECEIVED GIFT OF . 20,00,000/ - FROM ASSESSEE'S HUSBAND OUT OF HIS AGRICULTURAL ACTIVITIES FOR THE PAST 40 YEAR S TILL THE DATE OF SALE OF AGRICULTURAL LAND IN THE YEAR 2008. NECESSARY SALE DEED COPY FILED. AGAINST THE SUMMON U NDER S ECTION 131 OF THE ACT ISSUED ON 23.1.2014 , SHRI S BALASUBRAMANIAM HAS CONFIRMED IN THE SWORN STATEMENT THAT HE WAS DOING AGRICULTURAL A CTIVITIES TILL THE SALE OF JOINT PROPERTY OF AGRICULTURAL LAND ON 20.11.2008 AND EARNED MONEY EACH YEAR NEARING RUPEES SEVENTY FIVE THOUSAND TO ONE LAKH. SHRI S B ALASUBRAMANIAM HAS KEPT THE AGRICULTURAL INCOME IN HAND AND USED TO ACCUMULATE THE AMOUNT FROM YEAR TO YEAR AND OUT OF THIS HE HAS MADE A GIFT OF . 20 , 00,000/ - TO HIS WIFE. CONSIDERING THE SWORN STATEMENT AND CONFIRMATION FILED, THE ASSESSING OFFICER HAS ACCEPTED THE SOURCES FOR D EPOSIT OF . 20,00,000/ - AGAINST THE CASH DEPOSIT OF . 66,55,500/ - . HOWEVER, WE FIND THAT NO DETAILS WITH REGARD TO THE SALE OF AGRICULTURAL LAND BY ASSESSEE S HUSBAND WERE BROUGHT ON RECORD. MOREOVER, SAVINGS HELD BY THE ASSESSEE S HUSBAND WAS NOT FOUND TO HAVE BEEN VERIFIED BY THE ASSESSING OFFICER. I.T.A. NO . 2 6 9 / M/ 1 6 6 6.2 THE ASSESSEE'S R EPRESENTATIVE HAS STATED THAT . 15 , 00 , 000/ - HAS BEEN RECEIVED FROM THE ASSESSEE'S BROTHER SHRI R MARIMUTHU BY WAY OF SALE PROCEEDS OF HER FATHER'S PROPERTY AFTER THE DEATH OF THE ASSESSEE'S FATHER SHRI RAMA SUNDARAM CHETTIAR. NECESSARY LAND DOCUMENTS OF HER FATHER, DEATH CERTIFICATE ET C., FILED. AGAINST THE S UMMON U NDER SECTION 131 OF THE ACT, SHRI R MARIMUTHU, THE BROTHER OF THE ASSESSEE HAS CONFIRMED IN THE SWORN STATEMENT RECORDED ON 23.1.2014 THAT SHRI MARIMUTHU HAS GIVEN . 15 , 00 , 000/ - TO HER SISTER, SMT KALIAMMAL OUT OF THE SALE O F THE PROPERTY HELD BY HER FATHER AS SHE HAS GOT RIGHTS IN THE PROPERTY OF HER FATHER. SHRI MARIMUTHU HAS ALSO CONFIRMED THAT HE HAS GIVEN . 15,00, 000/ - BY CASH TO HER SISTER IN THE SWORN STATEMENT RECORDED. CONSIDERING THE CON FIR MATION LETTER FILED AND AL SO THE SWORN STATEMENT RECORDED , THE ASSESSING OFFICER HAS ACCEPTED THE SOURCE FOR . 1 5 , 00 , 0 00/ - . HOWEVER, WE FIND THAT NO DETAILS WITH REGARD TO THE SALE OF AGRICULTURAL LAND BY ASSESSEE S HUSBAND WERE BROUGHT ON RECORD. IF IT IS TRUE THAT THE ASSESSEE S BROTHER HAS SOLD THE PROPERTY, WHEREIN THE ASSESSEE HAS ALSO GOT RIGHTS, THE ASSESSEE SHOULD HAVE RECEIVED HER RIGHTFUL SHARE THAN BY MEANS OF GIFT. NO DETAILS WITH REGARD TO THE SHARE HOLDERS, AMOUNT SOLD, SHARE HELD BY THE ASSESSEE WERE BROUGHT ON RECOR D. THEREFORE, MERE CONFIRMATION CANNOT BE ACCEPTED AS VALID DOCUMENT FOR A GIFT OF .15,00,000/ - . I.T.A. NO . 2 6 9 / M/ 1 6 7 6.3 SMT S KALPANA, DAUGHTER OF THE ASSESSEE SMT KALIAMMAL HAS CONFIRMED THAT SHE HAS MADE A C ASH GIFT OF . 5, 00 , 000/ - TO H ER MOTHER ON THE OCCASION OF HER M ARRIAGE TOOK P L ACE ON 30.7.2008 BY WAY OF GIFT RECEIVED BY KALPANA DURING THE OCCASION, THIS IS ALSO IS ACCEPTED FOR THE SOU RCE TO THE EXTENT RS 5,00,000/ - . WITHOUT VERIFICATION OF ANY DETAILS, THE ASSESSING OFFICER HAS SIMPLY ACCEPTED THE STATEMENT OF DAU GHTER OF THE ASSESSEE. 6.4 IT IS ALSO STATED THAT THE ASSESSEE HAS SOLD JEWEL TO THE TUNE OF RS 26,00,000/ - WHICH SHE HAS INHERITED FROM HER MOTHER IN LAW AND HER OLD JEWELLERY TO THE 21 PERSONS, INCLUDING RELATIVES AND FRIENDS. NECESSARY CONFIRMATION LE TTERS FILED FROM THE PERSONS WHO HAVE PURCHASED THE OLD JEWELS. THE ASSESSEE'S REPRESENTATIVE HAS ALSO STATED THAT THE PERSONS WHO HAVE PURCHASED THE JEWELS ARE A GRICULTURISTS WHO HAVE GOT THE SOURCE OF MONEY FOR THE PURCHASE MADE. NOTHING WAS AVAILABLE IN THE ASSESSMENT ORDER AS TO WHETHER THE ASSESSING OFFICER HAS VERIFIED WITH THE PURCHASER, WHO HAVE PURCHASED OLD JEWELS, THEIR SOURCE FOR THE SAID PURCHASE, ETC. 6.5 UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT IN TOTAL ITY, THE ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S.147 OF THE ACT DATED 29.01.2014 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGLY, THE LD. PCIT HAS RIGHTLY PASSED THE ORDER UNDER SECTION 263 OF THE ACT AND WE FIND NO INFIRMITY IN TH E ORDER PASSED BY THE LD. PCIT DIRECTING THE ASSESSING OFFICER TO REDO THE ASSESSMENT. THUS, WE I.T.A. NO . 2 6 9 / M/ 1 6 8 CONFIRM THE ORDER PASSED UNDER SECTION 263 OF THE ACT. THEREFORE, THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. 7 . IN THE RESULT, THE APPEAL FILED BY THE A SSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 06 TH JANUARY , 201 7 AT CHENNAI. SD/ - SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 06 . 0 1 .201 7 VM/ - / COPY TO: 1. / APPEL LANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.