K.V.Indira, Salem V. ACIT, Salem

ITA 3023/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90586 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 11-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: R RAMPRASATH
• Keywords: Gift; Additional evidence
• Section: 69C; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . , ! # , $ & BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO . 3023/MDS/2014 ( / ASSESSMENT YEAR: 2007-08) MRS. K.V.INDIRA 108/1, ARAVANKADU, SALEM-636 007. VS INCOME TAX OFFICER, WARD-I(4) SALEM-7. PAN:AAJPI8212M ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. R.RAMPRASATH, C.A. /RESPONDENT BY : MR. P.RADHAKRISHNAN, JCIT /DATE OF HEARING : 18 TH MAY, 2015 /DATE OF PRONOUNCEMENT : 30 TH JUNE, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), SALEM DAT ED 30.09.2014 FOR THE ASSESSMENT YEAR 2007-08. 2. THE ASSESSEE IN HER APPEAL RAISED THE FOLLOWINGS GROUNDS OF APPEAL:- 1. THE APPELLANT FATHER IS AN OLD MAN AND LIVING IN A SMALL VILLAGE AND HE COULD NOT PRODUCE DOCUMENT RELEVANT TO GIFT AT THE TIME GRANTED BY THE ASSESSING OFFICER. HOWEVER, HE PRODUCED THE SAME AFTER THE DATE OF ORDER. HENCE ANOTHER OPPORTUNITY SOUGHT BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) WAS REJECTED. 2 ITA NO.3023 /MDS/2014 2. AS PER RULE 46A OF IT RULES, APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE ASSESSING OFFICER. 3. BEFORE THE ADMISSION OF EVIDENCE, THE COMMISSIONER OF INCOME TAX (APPEALS) HAS TO GIVE REASONABLE OPPORTUNITY TO THE ASSESSING OFFICER TO EITHER EXAMINE EVIDENCE OR FILE REBUTTAL TO THE EVIDENCE PRODUCED BY THE APPELLANT. IT WAS NOT DONE BY COMMISSIONER OF INCOME TAX (APPEALS). 3. BRIEF FACTS ARE THAT THE ASSESSEE IS A RETIRED B ANK EMPLOYEE FILED HER RETURN OF INCOME ON 11.10.2007 D ECLARING INCOME OF ` 1,68,430/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 144 OF THE ACT ON 15.10.2009, SINCE THE ASSESSEE DID NOT APPEAR IN RESPONSE TO SEVERAL NOTI CES AND OPPORTUNITIES GIVEN BY THE ASSESSING OFFICER. THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT MADE ADDITI ON OF ` 1,50,000/- DENYING THE GIFT RECEIVED BY THE ASSESS EE FROM HER FATHER OBSERVING THAT IN SPITE OF SEVERAL OPPOR TUNITIES THE ASSESSEE COULD NOT ESTABLISH THE GENUINENESS OF THE GIFT, IDENTITY OF THE PERSON, CREDITWORTHINESS OF THE DON OR. SIMILARLY, ASSESSING OFFICER ALSO DISALLOWED ` 1,00,000/- HOLDING THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF SHARES AND THE ASSESSEE HAS NOT BROUGHT INT O TRADING 3 ITA NO.3023 /MDS/2014 ACCOUNT, TRAVELLING AND TELEPHONE EXPENSES. THE AS SESSING OFFICER ALSO OBSERVED THAT THE ASSESSEE HAS SHOWN D RAWINGS OF ` 48,000/- ONLY FOR THE WHOLE YEAR. THEREFORE, HE A DDED ` 1,00,000/- UNDER SECTION 69C OF THE ACT BEING UNEX PLAINED EXPENDITURE. THE ASSESSEE PREFERRED AN APPEAL BEFOR E THE COMMISSIONER OF INCOME TAX (APPEALS) AND PRODUCED ADDITIONAL EVIDENCES BEFORE THE COMMISSIONER OF INC OME TAX (APPEALS) AND MADE DETAILED SUBMISSIONS EXPLAINING THE SOURCE FOR THE GIFT. THE COMMISSIONER OF INCOME TAX (APPEALS) CALLED FOR REMAND REPORT AND THE ASSESSIN G OFFICER IN THE REMAND REPORT STATED THAT THE ASSESSEE NEVER FURNISHED ANY EVIDENCE IN SPITE OF SEVERAL OPPORTUNITIES, THE REFORE ADDITIONAL EVIDENCES CANNOT BE ADMITTED. THE ASSESS ING OFFICER FURTHER IN HIS REMAND REPORT STATED THAT T HOUGH THE ASSESSEE FILED AFFIDAVIT FROM HER FATHER STATING TH AT ` 96,000/- WAS GIVEN TO THE ASSESSEE FROM HIS DRAWALS OF SAVI NGS BANK ACCOUNT HELD IN KUTTANELLUR SERVICE CO-OPERATIVE B ANK LTD., IT CANNOT BE SUBSTANTIATED THAT THE SAID AMOUNT WAS GIVEN BY HIM. IN RESPECT OF ` 54,000 AS GIFT GIVEN ON 25.06.2006, THE ASSESSING OFFICER STATED THAT THE ASSESSEES FATHER SOLD AGRICULTURAL LANDS IN MARCH, 2004 AND IT WAS STATED THAT GIFT 4 ITA NO.3023 /MDS/2014 WAS GIVEN IN JUNE, 2006 WHICH IS NOTHING BUT CREAT ING SOURCE FOR THE GIFT WHICH THE ASSESSEE COULD NOT PRODUCE D URING THE ASSESSMENT PROCEEDINGS. BASED ON THE REMAND REPORT , THE COMMISSIONER OF INCOME TAX (APPEALS) SUSTAINED THE ADDITION OF GIFT OF ` 1,50,000/- MADE BY THE ASSESSING OFFICER. 4. COUNSEL FOR THE ASSESSEE SUBMITS THAT ASSESSEE H AS EXPLAINED THE SOURCE OF GIFT AS FATHER OF THE ASSES SEE HAS GIVEN THE GIFT OUT OF HIS SAVINGS AND AN AFFIDAVIT WAS ALSO FILED BY HIS FATHER STATING THAT HE HAS GIVEN GIFT OF ` 96,000/- FROM HIS SAVINGS BANK ACCOUNT IN KUTTANELLUR SERVICE CO -OPERATIVE BANK LTD. AND ` 54,000/- OUT OF THE SALE PROCEEDS OF LANDS. COUNSEL FOR THE ASSESSEE REITERATED HIS SUBMISSIONS MADE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 5. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTS THE ORDERS OF LOWER AUTHORITIES. 6. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHOR ITIES. BEFORE THE ASSESSING OFFICER THE ASSESSEE DID NOT P RODUCE ANY EVIDENCE NOR RESPONDED TO THE NOTICES ISSUED BY THE 5 ITA NO.3023 /MDS/2014 ASSESSING OFFICER. THUS, THE ASSESSING OFFICER COMP LETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT TREATING TH E GIFT OF ` 1,50,000/- AS NOT GENUINE. THE COMMISSIONER OF INC OME TAX (APPEALS) SUSTAINED THE ADDITION AFTER OBTAININ G REMAND REPORT FROM THE ASSESSING OFFICER IN WHICH THE ASSE SSING OFFICER OBJECTED FOR ADMISSION OF ADDITIONAL EVIDEN CE AND SOURCE EXPLAINED BY THE ASSESSEE FOR RECEIVING GIFT . FROM THE REMAND REPORT, WE COULD SEE THAT THE ONLY OBJECTION OF THE ASSESSING OFFICER IN NOT ACCEPTING THE CASH OF ` 96,000/- SAID TO HAVE BEEN GIVEN BY ASSESSEES FATHER TO THE ASSE SSEE ON VARIOUS DATES IS THAT PAYMENT IS NOT SUBSTANTIATED. THE ASSESSEES FATHER FILED AN AFFIDAVIT STATING THAT H E HAS DRAWN ` 96,000/- ON VARIOUS DATES FROM HIS BANK ACCOUNT IN KUTTANELLUR SERVICE CO-OPERATIVE BANK LTD. AND HAS GIVEN TO THE ASSESSEE AS GIFT. THE ASSESSEES FATHER IN HIS AFFIDAVIT ALSO STATED THAT HE SOLD AGRICULTURAL LANDS ON 22.0 3.2004 FOR ` 2,51,200/- AND OUT OF THE BANK WITHDRAWALS AND SALE OF LAND, HE HAD GIVEN THE GIFT OF ` 1,50,000/- TO THE ASSESSEE. THE ASSESSEES FATHER IN HIS AFFIDAVIT ALSO STATED THAT HE HAS WITHDRAWN ` 59,500/- FROM HIS BANK ACCOUNT IN CANARA BANK AND WAS USED FOR HIS PERSONAL DRAWINGS. THE AVERMEN TS IN 6 ITA NO.3023 /MDS/2014 THE AFFIDAVIT HAVE NOT BEEN PROVED OTHERWISE AS FAL SE BY THE LOWER AUTHORITIES. THE COMMISSIONER OF INCOME TAX (APPEALS) SIMPLY SUSTAINED THE ADDITION ACCEPTING T HE VIEW OF THE ASSESSING OFFICER THAT ADDITIONAL EVIDENCE CANN OT BE ACCEPTED AS SEVERAL OPPORTUNITIES WERE GIVEN TO THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE VIEW OF THE ASSESSING OFFICER THAT THE ASSESSEE IS CREATING SOU RCE FOR THE GIFT WHICH COULD NOT PRODUCE DURING THE ASSESSMENT PROCEEDINGS IS AFFIRMED BY THE COMMISSIONER OF INC OME TAX (APPEALS) WITHOUT EXAMINING THE DETAILS FILED BY TH E ASSESSEE AND WITHOUT APPRECIATING THE SUBMISSIONS MADE THERE ON WITH REFERENCE TO THE AFFIDAVIT FILED BY THE FATHER OF T HE ASSESSEE. THE COMMISSIONER OF INCOME TAX (APPEALS) AND THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS HAVE NOT ESTABLISHED THAT THE AVERMENTS MENTIONED IN THE AF FIDAVIT ARE FALSE. THE LOWER AUTHORITIES ARE NOT DISPUTING THE AVERMENTS I.E. ASSESSEES FATHER HAS WITHDRAWN THE AMOUNT FRO M HIS BANK ACCOUNT, THAT ASSESSEES FATHER SOLD AGRICULTU RAL LANDS, THAT ASSESSEES FATHER HAS WITHDRAWN AMOUNT FROM CA NARA BANK AND USED FOR PERSONAL DRAWINGS. THE ONLY OBJEC TION OF THE ASSESSING OFFICER FOR REJECTING THE GIFT OF ` 96,000/- IS THAT 7 ITA NO.3023 /MDS/2014 ASSESSEE HAS NOT ESTABLISHED THAT SHE HAS RECEIVED THE GIFT. WHEN THE ASSESSEES FATHER HAS GIVEN AFFIDAVIT THAT HE HAS GIVEN GIFT OF ` 96,000/- FROM HIS SAVINGS AND SUCH AVERMENTS ARE PROVED OTHERWISE AS WRONG, IT HAS TO BE ACCEPTE D AS CORRECT. IN THE AFFIDAVIT, IT WAS ALSO STATED THAT AGRICULTURAL LAND WAS SOLD AND GIFT OF ` 54,000/- WAS GIVEN FROM OUT OF DRAWINGS AND SALE PROCEEDS. IT WAS ALSO STATED THAT HE HAS DRAWN ` 59,500/- ON VARIOUS DATES FROM CANARA BANK ACCOUNT. THIS IS ALSO NOT DISPUTED BY THE LOWER AUT HORITIES. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE GIFT SHOWN BY THE ASSESSEE FROM HER FATHER CANNOT BE DENIED. THUS , THE ADDITION MADE BY THE ASSESSING OFFICER TOWARDS GIFT IS DELETED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE, 2015. SD/- SD/- ( # ) ( & (# ) ( CHANDRA POOJARI ) ( CHALLA NAGENDRA PRASAD ) * / ACCOUNTANT MEMBER ( * / JUDICIAL MEMBER ( /CHENNAI, , /DATED 30 TH JUNE, 2015 SOMU ./ 0/ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. 1 () /CIT(A) 4. 1 /CIT 5. / 5 /DR 6. /GF .