The Income-tax Officer, Amritsar. V. Sh Rajesh Kumar kalia, Amritsar.

ITA 357/ASR/2011

• Counselvise Citation: 35720914 RSA 2011
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-03-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 09-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHE P N AURORA
• Keywords: Gift

Judgement Text

ITA NO.357(ASR)/2011 ASSESSMENT YEAR 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.357(ASR)/2011 ASSESSMENT YEAR:2008-09 PAN: AFLPK8919C THE INCOME TAX OFFICER, VS. SH. RAJESH KUMAR KALIA , WARD 4(3), C/O KALIA HOSPITAL, AMRITSAR. VALLAH, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH.TARSEM LAL, DR RESPONDENT BY: SHE. P.N. AURORA, ADV. DATE OF HEARING: 12.03.2012 DATE OF PRONOUNCEMENT:13.03.2012 ORDER PERBENCH; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT (A), AMRITSAR, DATED 06.05.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND WITHOUT APPRECIATING THE FACTS OF THE CASE, LD. CIT (A), HAS ERRED IN DELETING THE ADDITION OF RS.6,50,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT OF ASSESSEES WIFE AND TREATING THESE DEPOSITS BEING AN UNDISCLOSED INCOME OF THE ASSESSE E. ITA NO.357(ASR)/2011 ASSESSMENT YEAR: 2008-09 2 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND WITHOUT APPRECIATING THE FACTS OF THE CASE, LD. CIT (A), HAS ERRED IN DELETING THE ADDITION OF RS.5,75,000/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED DEPOSITS IN T HE BANK ACCOUNT OF THE ASSESSEE AND TREATING THESE DEP OSITS BEING AN UNDISCLOSED INCOME OF THE ASSESSEE. 3. IT IS PRAYED THAT THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE A.O. BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUND OF APPEAL BEFORE THE APPEAL IS HEARD AND DIS POSED OF. 3. THE BRIEF FACTS IN THE GROUNDS OF APPEAL OF THE REVENUE ARE THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY WITH THE AIR INFORMATION TO THE EFFECT OF CASH DEPOSITS OF RS.14,05,000/- IN TH E JOINT SB ACCOUNT NO.01512010029370 (OLD NO.7660) IN THE NAME OF THE ASSESSEE AND HIS WIFE, SMT. UMAR KALIA WITH OBC, VALLAHA ROAD BRANCH, AMRI TSAR, THE ASSESSEE ATTEMPTED TO EXPLAIN THESE BANK CASH DEPOSITS PARTL Y THROUGH HIS OWN CASH FLOW STATEMENT AND PARTLY THROUGH CASH FLOW STATEME NT FILED IN THE HANDS OF HIS WIFE, SMT. UMAR DEEPAK KALIA. AFTER EXAMINATION AND DISCUSSIONS, THE AO HAS MADE TWO ADDITIONS OF RS.6,50,000/- AND RS.5 ,75,000/- ATTRIBUTED TO UNEXPLAINED CASH DEPOSITS FOUND LYING IN THE ASSESS ES JOINT ACCOUNT NO.7660 WITH OBC, VALLAHA TREATING THE SAME AS ASSESSEES O WN UNDISCLOSED INCOME FROM UNEXPLAINED SOURCES. FOR THIS PURPOSE, HE HAS EXAMINED THE CASH FLOW STATEMENTS OF THE ASSESSEE AND THAT OF HIS WIFE, SM T. UMAR DEEPAK KALIA, ASSESSEES STATEMENT RECORDED ON 14.12.2010, SMT. U MAR DEEPAK KALIA, ITA NO.357(ASR)/2011 ASSESSMENT YEAR: 2008-09 3 (PAN:AFLPD8871L) ASSESSEES WIFES STATEMENT WAS AL SO RECORDED ON 21.12.2010, STATEMENT DATED 24.12.2010 OF THE ALLEG ED PURCHASER, SH. IQBAL SINGH WAS ALSO RECORDED, STATEMENT DT. 13.12.2010 O F SH. MADHU RAKESHWAR (PURELY AN AGRICULTURIST HAVING LAND HOLDINGS OF 7. 5 ACRES OF AGRI. LAND IN VILLAGE MAHAL, APPELLANTS BROTHER-IN-LAW WAS ALSO RECORDED. THE A.O. MADE ADDITIONS OF RS.6,50,000/- (COMPRISING OF RS.4,90,0 00 + 1,00,000 + 6,000 CASH DEPOSITS MADE BY THE ASSESSEES WISE) TREATING IT ASSESSEES UNDISCLOSED INCOME AND ANOTHER ADDITION OF RS.5,75,000/- (RS.5, 00,000/- + 75,000) CASH DEPOSIT DT. 21.03.2008) TREATING IT ASSESSEES BANK DEPOSITS FROM UNDISCLOSED SOURCES. 4. THE LD. CIT(A) ACCEPTED THE EXPLANATION OF THE A SSESSEE AND DELETED THE ADDITIONS FOR THE REASONS MENTIONED IN HIS ORDE R VIDE PARA 6.2. TO 6.3.3. 5. THE LD. DR, APPEARING FOR THE REVENUE HEAVILY RE LIED UPON THE ORDER OF THE A.O. AND ARGUED THAT THE ASSESSEE COULD NOT PROVE AVAILABILITY OF CASH FOR THE DEPOSITS IN THE SAVING BANK ACCOUNT AND, TH EREFORE, THE ORDER OF THE LD. CIT(A) DESERVES TO BE REVERSED. 6. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE, SH. P.N. ARORA, ADV. HEAVILY RELIED UPON THE ORDER OF THE LD. CIT(A ) AND THE EXPLANATION GIVEN BEFORE BOTH THE AUTHORITIES BELOW. IT WAS ARG UED WITH REGARD TO ASSESSEES WIFE SMT. UMAR KALIA, WHO IS ASSESSED TO TAX REGULARLY WAS HAVING OPENING BALANCE FOR RS.4,50,000/- IS A MATTE R OF RECORD. APART FROM ITA NO.357(ASR)/2011 ASSESSMENT YEAR: 2008-09 4 THAT TWO GIFTS OF RS.1,10,000/- AND RS.1,00,000/- W ERE RECEIVED FROM ASSESSEES BROTHER-IN-LAW WHO IS AGRICULTURIST AND HOLDING 7.5 ACRES OF LAND IN VILLAGE MAHAL. THE STATEMENT OF ASSESSEES WIFE WAS RECORDED BY THE AO ON 21.12.2010 WHERE ASSESSEES WIFE HAD ADMITTED AN D EXPLAINED OF THE AVAILABILITY OF THE CASH. APART, THE ASSESSEE HAD S UBMITTED TWO GIFT CERTIFICATES DULY SIGNED AND CONFIRMED BY BROTHER-I N-LAW OF THE ASSESSEE SH. MADHU RAKESHWAR RESIDENT OF VILLAGE, AMRITSAR. THE STATEMENT OF SH. MADHU RAKESHWAR WAS ALSO RECORDED ON 13.12.2010 WHE RE HE HAD CONFIRMED OF HAVING GIVEN THE GIFT TO THE ASSESSEE S WIFE AND HAS SUBMITTED HIS SOURCE OF GIFT. THE JOINT ACCOUNT OF ASSESSEES WIFE WITH THE ASSESSEE ALONGWITH CASH FLOW STATEMENT WAS SUBMITTED, WHICH IS SELF-EXPLANATORY AND IS AVAILABLE AT PAGE NOS. 13 & 14 OF THE PAPER BOOK . THEREFORE, THE ADDITION OF RS.6,50,000/- HAS RIGHTLY BEEN DELETED BY THE LD . CIT(A) SINCE THE ASSESSEE HAD SUBMITTED THE EXPLANATION BEFORE THE A O AS WELL AS BEFORE THE LD. CIT(A). AS REGARDS THE ADDITION OF RS.5,75,000/ - I.E. DEPOSIT OF RS.5,00,000/- AND RS.75,000/-, THE ASSESSEE HAD SUB MITTED THE CASH FLOW STATEMENT, WHICH IS AVAILABLE AT PAGE NOS. 13 & 14 OF THE PAPER BOOK. THE EXPLANATION OF AVAILABILITY OF CASH WAS THAT THE AS SESSEE HAD ENTERED INTO AN AGREEMENT WITH ONE MR. IQBAL SINGH FOR SELLING THE HOUSE, WHICH ULTIMATELY GOT CANCELLED. THE ASSESSEE HAD RECEIVED AN ADVANCE OF RS.5,00,000/- WHICH IS A MATTER OF RECORD. THE STATEMENT OF MR. IQBAL S INGH WAS ALSO RECORDED ON ITA NO.357(ASR)/2011 ASSESSMENT YEAR: 2008-09 5 24.12.2010 THOUGH AT THE BACK OF THE ASSESSEE WHERE MR. IQBAL SINGH HAD CONFIRMED OF HAVING GIVEN THE ADVANCE IN LIEU OF AG REEMENT TO SELL (IKRARNAMA) AND SUBMITTED THE EXPLANATION FOR AVAIL ABILITY OF CASH WITH HIM. COPY OF IKRARNAMA IS ALSO ON RECORD IN THE PAPER BO OK. THE SAID AMOUNT HAS BEEN REFUNDED BACK ON 15.01.2009, AS PER RECEIPT OF MR. IQBAL SIGH, WHICH IS ALSO A MATTER OF RECORD AND IS NOT UNDER DISPUTE. R S.75,000/- HAD BEEN ACCUMULATED BY THE ASSESSEE FROM THE EARLIER BANK W ITHDRAWAL AND FROM PAST SAVINGS AS IS EVIDENT FROM THE CASH FLOW STATEMENT. THEREFORE, THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSES SEE, SH. P.N. ARORA, ADV. APPEARS TO BE CONVINCING THAT THERE WAS AVAILA BILITY OF CASH OF RS.4,50,000/- AS AN OPENING BALANCE WITH THE ASSESS EES WIFE AND THE ASSESSEES WIFE HAD RECEIVED TWO CASH GIFTS FROM TH E ASSESSEES BROTHER-IN- LAW MR. MADHU RAKESHWAR SHARMA, WHO HAD CONFIRMED O F HAVING GIVEN THE GIFTS. NO CONTRARY EVIDENCE HAS BEEN BROUGHT ON REC ORD BY THE REVENUE WITH REGARD TO THE OPENING BALANCE OF CASH AND THE CASH GIFTS GIVEN BY SH. MADHU RAKESHWAR SHARMA TO THE ASSESSEES WIFE THEREFORE, IN THE CIRCUMSTANCES AND THE FACTS OF THE CASE AND MATERIAL AVAILABLE O N RECORD, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A), WHO HAS R IGHTLY DELETED THE ADDITION ITA NO.357(ASR)/2011 ASSESSMENT YEAR: 2008-09 6 OF RS.6,50,000/-. AS REGARDS, THE ADDITION OF RS.5, 75,000/-, THE AVAILABILITY OF 75,000/- HAS RIGHTLY BEEN EXPLAINED FROM THE EARLIE R BANK WITHDRAWAL AND PAST SAVINGS. AS REGARDS THE ADDITION OF RS.5,00,00 0/- FROM MR. IQBAL SINGH FROM WHOM THE ADVANCE FOR SALE OF HOUSE HAS BEEN TA KEN HAD CONFIRMED OF HAVING GIVEN THE ADVANCE, WHO HAD EXPLAINED THE AVA ILABILITY OF CASH IN THE STATEMENT RECORDED ON 24.12.2010. THE SAID ADVANCE HAS BEEN GIVEN BACK BY THE ASSESSEE ON CANCELLATION OF THE DEAL IS ALSO A MATTER OF RECORD. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, WE FIND NO INF IRMITY IN THE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY DELETED THE ADDITION MA DE BY THE AO. THUS, BOTH THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO.357(ASR)/2011 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH MARCH, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13TH MARCH , 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:SH. RAJESH KUMAR KALIA, VALLAHA, AMRIT SAR. 2. THE ITO WARD 4(3), ASR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, ASR. TRUE COPY BY ORDER