RVR Rao, V. ITO, Rayagada

ITA 300/CTK/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52415 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 09-11-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 26-05-2011
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: J M PATTNAIKAR
• Keywords: Gift; Reassessment proceedings

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, (SMC) BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, ACCOUNTANT MEMBER. ITA NO. 300/CTK/2011 (ASSESSMENT YEAR 2004 - 05) SHRI R.V.R.RAO , S/O. LATE R.SATAYANARTAYANA, SAI MANDIR ROAD, NEW COLONY, P.O./DIST.RAYAGADA PAN: AL ZPR 3349 F VERSUS INCOME - TAX OFFICER, RAYAGADA WARD, RAYAGADA. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI J.M.PATTNAIK,AR FOR THE RESPONDENT SHRI S.C.MOHANTY, DR DATE OF HEARING : 09.11.2011 DATE OF PRONOUNCEMENT : 16.11.2011 ORDER SHRI K.K.GUPTA, AM : THE ASSESSEE HAS FILED THIS APPEAL AGAINST ORDER DT.22.02.2011 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) CONFIRMING THE ADDITION OF 2,00,000 ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT MADE IN THE ASSESSMENT U/SS.147/143(3) OF TH E INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEAR 2004 - 05. 2. THE RELEVANT FACTS ARE THAT THE ASSESSEE IS A SALARIED EMPLOYEE IN LIFT IRRIGATION DEPARTMENT OF GOVT. OF ORISSA. IN THE ASSESSMENT PROCEEDINGS IN THE CASE OF SMT. R.SAILAJA, DAUGHTER OF THE ASSESSE E FOR THE ASSESSMENT YEAR 2005 - 06 THE ASSESSING OFFICER NOTICED THAT SHE HAD DEPOSITED A SUM OF 32,88,234 IN ACCOUNT NO.14314 MAINTAINED AT INDIAN BANK OF INDIA, RAYAGADA. IN THIS CONNECTION, THE ASSESSEE HAD FURNISHED A WRITTEN EXPLANATION ON 28.8.2007 S TATING THAT ALL THE TRANSACTIONS OF THE SAID ACCOUNT ARE RELATED TO HIM ONLY AND HAS BEEN HANDLED BY HIM FOR THE SAKE OF HIS DAUGHTERS EDUCATION ABROAD AND OBTAINING VISA. IN COURSE OF REASSESSMENT PROCEEDINGS U/S.147 IN THE CASE OF THE ASSESSEE FOR THE A SSESSMENT YEAR UNDER CONSIDERATION, ON OBTAINING CASH FLOW STATEMENT FILED BY THE ASSESSEE THE ASSESSING OFFICER NOTICE D THAT THE ASSESSEES SPOUSE HAD DEPOSITED A 2 SUM OF 2,00,000 IN THE SAID ACCOUNT. THE ASSESSEE STATED T HE SAID DEPOSIT WAS OUT OF STRE EDHANA (PAST SAVINGS) OF HIS WIFE. THE ASSESSING OFFICER BELIEVE D THIS AS AN AFTERTHOUGHT SINCE THE ASSESSEES MARRIAGE WAS SOLEMNIZED 30 YEARS BACK. ACCORDINGLY, HE TREATED THIS DEPOSIT OF 2,00,000 AS UNEXPLAINED CASH DEPOSITS AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED THE ASSESSEE APPEALED BEFORE THE CIT(A) WHO CONFIRMED THE SAME AND HENCE, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. SHRI J.M.PATNAIK, LEARNED AR OF THE ASSESSEE CONTENDED THAT THE AMOUNT OF 2,00,000 WAS THE PAST SAVINGS OF SMT.R.USHA DEVI, WIFE OF THE ASSESSEE, WHO HAD CONTRIBUTED FOR HER DAUGHTER S STUDIES. HE SUBMITTED THAT THE ASSESSING OFFICER INSTEAD OF EXAMINING THE LADY WHO WAS 52 YEARS OLD TO ENQUIRE ABOUT THE SOURCE OF THE FUND SOUGHT FOR EVIDENCE RE GARDING THE STREEDHANA SOURCES FROM THE ASSESSEE. HE FURTHER CONTENDED THAT THE ASSESSEE NEVER CLAIMED THAT THE SAID STREEDHANA WAS RECEIVED IN CASH AT THE TIME OF THE ASSESSEES MARRIAGE SOLEMNIZED 30 YEARS BACK. THEREFORE, THE PRESUMPTION OF THE A UTHORITIES BELOW THAT STREEDHANA RELATES ONLY TO THE AMOUNT RECEIVED AT THE TIME OF MARRIAGE OF A LADY IS NOT PROPER. THE AUTHORITIES HAVE NOT EXAMINED SMT. R.USHA DEVI, WIFE OF THE ASSESSEE BY ISSUING SUMMONS IN ORDER TO TEST THE VERACITY OF THE STATE MENT OF THE ASSESSEE THAT THE SAID AMOUNT OF 2,00,000 RELATES TO STREEDHANA DEPOSITED IN THE SAID BANK ACCOUNT. THUS, THERE BEING NO MATERIAL ON RECORD TO DISBELIEVE THE CONTENTION OF THE ASSESSEE IN REGARD TO THE DEPOSIT OF 2,00,000 AS OUT OF STREE DHANA OF HIS WIFE, THE ADDITION OF THE SAID AMOUNT IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED CASH DEPOSIT IS NOT PROPER AND ACCORDINGLY, THE LEARNED AR SOUGHT FOR DELETION OF THE SAID ADDITION. 4. MR. S.C.MOHANTY, LEARNED DR, ON THE OTHER HAND, SUPPORT ED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ASSESSEE 3 HAVING NOT ESTABLISHED THE CLAIM OF DEPOSIT OF 2,00,000 TO HAVE BEEN MADE OUT OF STREEDHANA, THE IMPUGNED ADDITION MADE IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED CASH DEPOSITS IS VERY MUCH JUSTIFIED AND AS SUCH, THE SAME NEEDS NO INTERFERENCE. 5. HAVING HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES, THE UNDISPUTED FACTS ARE THAT THE ASSESSEE WHILE EXPLAINING THE DEPOSIT OF 2,00,000 IN THE BANK ACCOUNT, CATEGORICALLY STATED THAT THE SAID AMOUNT WAS DEPOSITED OUT OF PAST SAVINGS OF HIS WIFE SMT.R.USHA DEVI, WHO HAD CONTRIBUTED THE SAME FOR HER DAUGHTER S STUDIES ABROAD . T HE ASSESSEE HAD EXPLAINED THE SOURCE OF DEPOSIT IN THE BANK WHICH THE ASSESSING OFFICER DID NOT BELIEVE SUCH EXPLANATION ON THE GROUND THAT SUCH HUGE AMOUNT COULD NOT HAVE BEEN KEPT FOR SUCH A LONG PERIOD WITH HIM A S THE ASSESSEES MARRIAGE WAS SOLEMNIZED 30 YEARS BACK, WHICH INDICATES THAT THE ASSESSING OFFICER UNDERSTOOD THE TERM STREEDHANA IN A MICRO SENSE WHICH ACCORDING TO HIM CONSTITUTES THE AMOUNT RECEIVED ONLY AT THE TIME OF MARRIAGE . STREEDHANA IS AN W IDER TERM . WHATEVER IS GIVEN TO THE WIFE AS GIFT AT THE TIME OF MARRIAGE AND EVEN AFTER THE MARRIAGE BY EITHER FAMILIES BECOMES AND HELD AS STREEDHANA . IN MY CONSIDERED VIEW, IN ORDER TO TEST THE VERACITY OF THE CLAIM OF THE ASSESSEE THAT THE AMOUNT OF 2,00,000 RELATES TO AMOUNTS OUT OF STREEDHANA OR OTHERWISE OF HIS WIFE COULD HAVE BEEN ASCERTAINED FROM THE WIFE OF THE ASSESSEE ITSELF. THE ONUS TO ESTABLISH IDENTITY, GENUINENESS AND CREDITWORTHINESS LIES ON THE ASSESSEE NOT TO BE ASSUMED BY ASSESSI NG OFFICER ON HIS OWN DISCARDING THE ASSESSEES EXPLANATION. HAVING ACCEPTED ABOUT 30 LAKHS DEPOSITS, IT WAS NOT THE CASE OF THE ASSESSEE TO NOT ABLE TO EXPLAIN 2 LAKHS. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, I CONSIDER IT PROPER TO SET ASIDE THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW ON THIS COUNT AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER ENQUIRE THE MATTER FROM 4 SMT. R.USHA DEVI ON ISSUING SUMMON S U/S.131 AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFFORDING PROPER OPP ORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/ - (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 16 TH NOVEMBER,2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: SHRI R.V.R.RAO , S/O. LATE R.SATAYANARTAYANA, SAI MANDIR ROAD, NEW COLONY, P.O./DIST.RAYAGADA 2. THE RESPONDENT: INCOME - TAX OFFICER, RAYAGADA WARD, RAYAGADA. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.