Mr Sunil Kr. Saha, Kolkata V. ITO, WD-55(1), KOLKATA, Lucknow

ITA 327/KOL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100232 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 01-04-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: K M ROY
• Keywords: Reopening of assessment; Gift; Fair market value; Reason to believe
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SHRI MAHAVIR SINGH, JM] I.T.A NO.327/KOL/2015 ASSESSMENT YEAR: 2004-05 MR. SUNIL KR. SAHA VS. INCOME-TAX OFFICER, WD- 55(1), KOLKATA (ALKPS7564E) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 11.12.2015 DATE OF PRONOUNCEMENT: 11.12.2015 FOR THE APPELLANT: SHRI K. M. ROY, FCA FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT, SR. DR ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXVI, KOLKATA VIDE APPEAL NO. 447/CIT(A)-XXXVI/KOL/ITO,WD-55(1)/11-12 DATED 14.03.2014. ASSESSMENT WAS FRAMED BY ITO, WARD-55(1), KOLKATA U /S. 143(3)/147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FO R ASSESSMENT YEAR 2004-05 VIDE HIS ORDER DATED 20.12.2011. 2. AT THE OUTSET, IT IS NOTICED THAT THIS APPEAL BY ASSESSEE IS TIME BARRED BY 299 DAYS AND ASSESSEE HAS FILED CONDONATION PETITION STATING THE REASON ILLNESS SUPPORTING MEDICAL CERTIFICATE. LD. SR. DR LEFT THE ISSUE AT THE DISC RETION OF THE BENCH. I FEEL THAT IN THE STATED REASONS THE APPEAL SHOULD BE ADMITTED AND DE LAY SHOULD BE CONDONED. ACCORDINGLY, I CONDONE THE DELAY AND ADMIT THE APPE AL. 3. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS A GAINST THE ORDER OF CIT(A) CONFIRMING THE REOPENING OF ASSESSMENT U/S. 147 OF THE ACT. B RIEFLY STATED FACTS ARE THAT THE RETURN OF INCOME BY THE ASSESSEE FOR AY 2004-05 WAS FILED AND RETURN WAS PROCESSED U/S. 143(1) OF THE ACT. SUBSEQUENTLY, THE AO NOTICED FR OM THE ACCOUNTS OF THE ASSESSEE THAT IT HAD SHOWN A GIFT OF RS.1,35,000/- AND LOAN OF RS .3.5 LACS BUT NO DETAILS WERE FURNISHED AND ACCORDINGLY, HE HAS REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND, THEREFORE, INITIATED PROCEEDING U/S . 147 OF THE ACT. FOR THIS, THE AO RECORDED THE FOLLOWING REASONS ON 10.12.2010: FROM THE BALANCE SHEET AS ON 31.3.2004, IT WAS FO UND THAT THE ASSESSEE HAD SHOWN GIFT RECEIVED OF RS.1,35,000/- AND LOAN OF RS.3,50,000/- BUT NO DETAILS WERE FURNISHED. 2 ITA NO.327/K/2015 SUNIL KR. SAHA AY 2004-05 MOREOVER, FROM DISCRETE ENQUIRY IT WAS FOUND THAT T HE ASSESSEE OWNS A FLAT OF AREA 1500 SQ. FT. ON THE FOURTH FLOOR OF 7A DESHAPRIYA PARK W EST, KOL-26 BY INVESTING RS.2,50,000/- DURING THE YEAR WHICH SEEMS UNREASONABLE AND FAR BE LOW THE FAIR MARKET VALUE. IN VIEW OF ABOVE, I HAVE REASONS TO BELIEVE THAT IN COME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND PROCEEDING U/S. 147 OF THE I. T. ACT , 1961 MAY BE INITIATED. PUT UP FOR YOUR PERUSAL AND KIND APPROVAL. THE ASSESSEE CHALLENGED THE REOPENING BEFORE CIT(A) BUT HE CONFIRMED THE ACTION OF AO. AGGRIEVED, ASSESSEE IS IN SECOND APPEAL BEFORE TRIBUNAL. 4. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. I FIND THAT THE AO HAS MERELY RECORDED THE R EASON THAT HE IS NOTICED FROM THE ACCOUNT THAT THE ASSESSEE HAS RECEIVED A GIFT OF RS .1.35 LACS AND LOAN OF RS.3.5 LACS BUT NO DETAILS WERE FURNISHED ALONG WITH THE RETURN OF INCOME. SUBSEQUENTLY, WHILE COMPLETING ASSESSMENT U/S. 147 READ WITH SECTION 14 3(3) OF THE ACT, THE AO HAS MADE ADDITION OF RS.1.35 LAC BEING GIFT AS UNEXPLAINED. THE ASSESSEE CLAIMED THAT THESE GIFTS WERE SMALL GIFTS RECEIVED FROM DIFFERENT RELATIVES DURING BIRTH DAY AND THEIR MARRIAGE ANNIVERSARY AND NOT A SINGLE GIFT EXCEEDING RS.10,0 00/- IN EACH CASE. LD. COUNSEL FOR THE ASSESSEE BEFORE US STATED THAT THE VERY REASONS RECORDED ARE FALLACIOUS AND AO HAS NOT FOUND ANY REASONABLE BELIEVE FOR REOPENING THE ASSESSMENT. I FIND THAT THE ARGUMENT OF LD. COUNSEL FOR THE ASSESSEE IS CONVINCING THAT THE REASONS RECORDED ARE BASED ON THE ASSESSEES ACCOUNTS ONLY AND THAT ALSO ACCORDING TO AO ARE WITHOUT ANY DETAILS REGARDING GIFTS. I FIND THAT THE ASSESSEE HAS DISCLOSED THES E GIFTS IN THE BALANCE SHEET AND WHAT TYPE OF EVIDENCE ARE TO BE FILED WITH THE RETURN OF INCOME IT IS NOT KNOWN. THE ASSESSEE HAS MADE COMPLETE DISCLOSURE OF GIFT IN THE RETURN OF INCOME AND THERE IS NO EXTERIOR INFORMATION OR ANY EVIDENCE WITH THE REVENUE WHICH PROVOKED THEM TO REOPEN THE ASSESSMENT. ACCORDINGLY, I QUASH THE REASSESSMENT PROCEEDING AND ALLOW THE APPEAL OF ASSESSEE. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 11.12.2 015 SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 11TH DECEMBER, 2015 JD.(SR.P.S.) 3 ITA NO.327/K/2015 SUNIL KR. SAHA AY 2004-05 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI SUNIL KUMAR SAHA, 7A, DESHAPRI YA PARK (WEST), KOLKATA-26.. 2 RESPONDENT ITO, WD-55(1), KOLKATA. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .