Smt. Lataben B. Salunke, Baroda V. The Income Tax Officer, Ward-4(1)(1), Baroda

ITA 2879/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7163 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-01-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 19-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DILIPKUMAR S
• Assessee Lawyers: MUKUN BAKSHI
• Keywords: Sale consideration of property below Jantri Value; Source of fund
• Section: 50C; 69

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT ./ ITA NO. 1200/AHD/2017 AND ITA NO.2879/AHD/2017 / ASSESSMENT YEAR: 2012-13 AND 2011-12 LATABEN B. SALUNKE SHRADDHA DEEP MARIMATA LANE RAJMAHAL ROAD BARODA 390 001 PAN : ADOPS 9996 G VS ITO, WARD-4(1)(1) BARODA. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI MUKUN BAKSHI, AR REVENUE BY : SHRI DILIPKUMAR S.DR / DATE OF HEARING : 29/01/2020 /DATE OF PRONOUNCEMENT : 04/02/2020 O R D E R PRESENT TWO APPEALS ARE DIRECTED AGAINST ORDERS OF THE LD.CIT(A)-4, BARODA DATED 17.1.2017 AND 8.9.2017 PASSED IN THE A SSTT.YEARS 2012-13 AND 2011-12 RESPECTIVELY. SINCE ISSUES IN BOTH THE ASSESSMENT YEARS ARE COMMON, THEREFORE, WE HEARD THEM TOGETHER AND DEEM IT APPROPRIATE TO DISPOSE OF BOTH THESE APPEALS BY THIS COMMON ORDER. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.5,00,000/- IN THE ASS TT.YEAR 2011-12 AND RS.27,50,000/- IN THE ASSTT.YEAR 2012-13 RESPECTIVE LY. ITA NO.1200 AND 2879/AHD/2017 - 2 - 3. BRIEF COMMON FACTS RELATING TO THIS ISSUE IN BOT H THE YEARS ARE THAT SHRI BHAGWANT A SALUNKE, LATE HUSBAND OF THE ASSESS EE HAD MADE A WILL ON 20.8.2009 WHEREBY HE HAS PROVIDED THAT A CASH OF RS.35 LAKHS WAS LYING IN HIS TIJORI WHICH HE BEQUEATHED TO WIFE, SMT. LATABEN SALUNKE. OUT OF THAT CASH, RS.27 LAKHS BEEN DEPOSITED IN THE SAVING BANK ACCOUNT WITH BANK OF INDIA DURING THE ACCOUNTING YEAR RELEV ANT TO THE ASSESSMENT YEAR 2012-13 AND RS.5.00 LAKHS IN THE AC COUNTING YEAR RELEVANT TO THE ASSTT.YEAR 2011-12. WHEN SOURCE OF THESE CASH DEPOSITS IN THE BANK WAS INQUIRED, THEN THE ASSESSEE DEPOSED THAT IT WAS INHERITED FROM HER HUSBAND. IN ORDER TO PROVE HER CASE, SHE HAS PRODUCED A COPY OF THE WILL AND WITNESSES WHO ATTESTED THE WILL. T HE AO HAS RECORDED THEIR STATEMENT, BUT WAS NOT SATISFIED WITH VERSION OF THE ASSESSEE. HE DISBELIEVED THE EXPLANATION OF THE ASSESSEE, AND MA DE ADDITION OF RS.27,50,000/- IN THE ASSTT.YEAR 2012-13 AND RS.5,0 0,000/- IN THE ASSTT.YEAR 2011-12. APPEAL TO THE CIT(A) DID NOT B RING ANY RELIEF TO THE ASSESSEE. 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. BEFORE ADVERTING TO THE FACT S, I WOULD LIKE TO NOTE OF SECTION 69A, WHICH READS AS UNDER: WHERE IN ANY YEAR THE TAXPAYER IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE AND SU CH MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE IS NOT RECORDED IN TH E BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME, AN D THE TAXPAYER OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUI SITION OF THE MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE, OR TH E EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER , SATISFACTORY, THAN THE MONEY AND THE VALUE OF THE BULLION, JEWELLERY OR OT HER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME OF THE TAXPAYER FOR SUCH YEAR. ITA NO.1200 AND 2879/AHD/2017 - 3 - 5. IN VIEW OF THE ABOVE PROVISION, LET ME DISCUSS T HE FACTS OF THE PRESENT CASE. THE ASSESSEE HAS EXPLAINED HOW THE MO NEY CAME TO THE POSSESSION OF THE ASSESSEE. THE STAND OF THE ASSES SEE IS THAT HER HUSBAND WAS RUNNING A COACHING CLASS AND PROVIDING TUITION TO THE STUDENTS. HE DIED ON 27.9.2010 AND BEFORE HIS DEATH ON 20.8.2009 , HE MADE A WILL. ACCORDING TO THIS WILL THERE WERE TWO RESIDENTIAL H OUSE ONE AT SHRADEEP AND OTHER AT SUHAS CO-OP. HOUSING SOCIETY. AS FAR AS RESIDENTIAL HOUSES ARE CONCERNED, THESE WERE BEQUEATHED AMONGST LEGAL HEIRS ACCORDING TO THE MUTUALLY UNDERSTANDING AFTER HIS DEATH. HE HAS ALSO DECLARED THAT A SUM OF RS.35 LAKHS WAS EARNED OUT OF HIS PROFESSION AL FEES INCOME OVER A PERIOD OF TIME LYING IN HIS TIJORI AND THIS WOULD BE GIVEN TO HIS WIFE SMT.LATABEN. TWO WITNESSES ATTESTED THIS WILL, GAV E THEIR AFFIDAVITS AND ALSO APPEARED BEFORE THE AO. THEIR STATEMENTS HAVE ALSO BEEN TAKEN. THE VERSION OF THE ASSESSEE HAS BEEN BELIED BY BOTH THE REVENUE AUTHORITIES ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE VIZ. IN THIS DAY-TO-DAY WORLD NOBODY WOULD KEEP CASH AMOUNT AT HOME WHERE B ANK FACILITY IS AVAILABLE. THE LD.CIT(A) DOUBTED THE GENUINENESS O F THE WILL ON THE GROUND IT WAS NOT REGISTERED. THE LD.CIT(A) ALSO O BSERVED THAT A PROPER PROBATE WAS NOT TAKEN BY THE SUCCESSOR UNDER THE WI LL. TO MY MIND, THIS OBJECTION LOOSES THEIR IMPORTANCE, THE MOVEMEN T TWO INDEPENDENT WITNESSES WHO HAVE ATTESTED THE WILL CAME FORWARD A ND SUPPORTED THE VERSION OF THE ASSESSEE. I HAVE GONE THROUGH THE C ROSS-EXAMINATION DONE BY THE AO, AND A PERUSAL OF THAT WOULD REVEAL THAT NOTHING INCRIMINATING COULD BE UNEARTHED FROM THESE WITNESS ES. THEY HAVE SUPPORTED THE STORY AND DEPOSED THAT THE WILL WAS S IGNED IN THEIR PRESENCE. THEY HAVE DISCLOSED THAT THE CASH WAS NO T COUNTED BEFORE THEM, BUT DEPONENTS WERE APPRAISED ABOUT THIS IN TH E WILL. AS FAR AS ITA NO.1200 AND 2879/AHD/2017 - 4 - NON-REGISTRATION OF THE WILL IS CONCERNED, A WILL W OULD NOT BECOME INVALID ON ITS NON-REGISTRATION. IT WILL NOT LOSE ITS EVIDENTIARY VALUE. HAD IT BEEN REGISTERED THEN THERE COULD NOT ANY SUS PICION OVER IT. THAT WAS ONE OF THE CORROBORATIVE CIRCUMSTANCES IN FAVOU R OF THE GENUINE DOCUMENTS. THE AO FURTHER OUGHT TO HAVE APPRECIATE D THAT THERE WERE NO OTHER SOURCES OF INCOME TO THE ASSESSEE, FROM WH ERE IT COULD BE CONSTRUED THAT HE ASSESSEE HAS INTRODUCED HER ESCAP ED INCOME FROM TAXES, IN THIS FORM. HE HAS MADE REFERENCE TO THE SALE OF A HOUSE AND SALE PROCEEDS, BUT THEN HE HAS NOWHERE INVESTIGATED THAT THE ASSESSEE HAS RECEIVED SOMETHING MORE IN THE SHAPE OF CASH, THAN THE ONE DISCLOSED BY HER IN THE SALE OR DEEMED UNDER SECTION 50C OF THE INCOME TAX ACT. THEREFORE, TO MY MIND, NO ADDITION DESERVES TO BE MADE UNDER SECTION 69 OF THE ACT. THE ASSESSEE HAS EXPLAINED THE SOUR CE OF DEPOSIT. ACCORDINGLY, I ALLOW BOTH THE APPEALS AND DELETE AD DITION OF RS.27,50,000/- AND RS.5,00,000/- IN THE ASSTT.YEAR 2012-13 AND 2011-12 RESPECTIVELY. 6. IN THE RESULT, ALL BOTH THE APPEALS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 4 TH FEBRUARY, 2020. SD/- (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED, 04/02/2020