Sushma Singh Bundela, Bhopal V. The ITO-1(1), Bhopal

ITA 360/IND/2013

• Counselvise Citation: 36022714 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 24-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: SANDEEP MUKHERJEE
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI MUKU L KR. SHRAWAT, JUDICIAL MEMBER PAN NO. AAWPB6259J ITA NO. 360 & 361/IND/2013 A.Y. : 2003-04 & 2004-05 SMT. SUSHMA SINGH BUNDELA, BHOPAL VS. ITO, 1(1), BHOPAL (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANDEEP MUKHERJEE, C. A. REVENUE BY : SHRI R.A.VERMA, SR. DR . / // / DATE OF HEARING : 10.09.2014 /DATE OF PRONOUNCEMENT: 19.09.2014 / O R D E R PER P.K.BANSAL, A.M. BOTH THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE CIT(A) DATED 17.12.201 2. 2. SINCE IN BOTH THE APPEALS, THE ISSUE INVOLVED IS CO MER, THEREFORE, BOTH THESE APPEALS ARE BEING DISPOSED OF BY THIS COMMON ORDER. 3. GROUND NO. 1 IS GENERAL, THEREFORE, DOES NOT REQUIR E ANY ADJUDICATION, EVEN NO ARGUMENTS WERE ADVANCED BY LD . AUTHORIZED REPRESENTATIVE. THEREFORE, THIS GROUND I S DISMISSED. SMT.SUSHMA SINGH BUNDELA, BHOPAL. 2 I.T.A.NOS.360 & 361/IND/2013 4. GROUND NOS. 2, 3, 4, 5 & 6 IN BOTH THE YEARS RELATE D TO THE ESTIMATION OF AGRICULTURAL INCOME. 5. THE FACTS RELATING TO THIS GROUND ARE THAT THE ASSE SSEE OWNED 33.69 ACRES OF AGRICULTURAL LAND AND DECLARE D AGRICULTURAL INCOME IN EACH OF THE ASSESSMENT YEAR AT RS. 2,66,0 00/-. THE ASSESSING OFFICER DID NOT AGREE WITH THE ASSESSEE A ND TREATED THE SUM OF RS. 2,66,000/- AS ASSESSEES INCOME FROM UND ISCLOSED SOURCES. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT (A). THE LD. CIT(A) AFTER GOING THROUGH THE EVIDENCES FILED BY T HE ASSESSEE NOTED THAT THE ASSESSEE IS THE JOINT HOLDER OF 33.6 9 ACRES OF THE LAND AND HE ESTIMATED THE INCOME OF THE ASSESSEE FR OM AGRICULTURE @ RS. 5,000/- PER ACRE AND, THEREFORE, ALLOWED THE RELIEF TO THE ASSESSEE FOR A SUM OF RS. 1,68,450/- AND SUSTAINED THE BALANCE ADDITION. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. WE KNOTTED THAT THE REVENUE HA S NOT FILED ANY APPEAL BEFORE US. THUS, THE REVENUE HAS ACCEPTE D THAT THE ASSESSEE HAS DERIVED AGRICULTURAL INCOME DURING THE IMPUGNED ASSESSMENT YEAR, AS THE FINDINGS OF THE CIT(A) THAT THE ASSESSEE HAS DERIVED AGRICULTURAL INCOME DURING THE YEAR HAS BECOME FINAL. WE NOTED THAT THE CIT(A) HAS GIVEN A CLEAR CUT FIND ING THAT DURING SMT.SUSHMA SINGH BUNDELA, BHOPAL. 3 I.T.A.NOS.360 & 361/IND/2013 THE ASSESSMENT YEAR 2005-06, THE AGRICULTURAL INCOM E DECLARED BY THE ASSESSEE IN THE RETURN HAS DULY BEEN ACCEPTE D BY THE ASSESSING OFFICER AND, THEREFORE, HE ESTIMATED THE AGRICULTURAL INCOME @ RS. 5000/- PER ACRE. WE NOTED THAT THE ARE A IN WHICH THE CROP IS SHOWN IS DULY RECORDED AS IN FORM P-II, ONE CROP OF SOYABEAN IS RECORDED IN 33.32 ACRES OF THE LAND. SI MILARLY, OTHER CROPS ARE AVAILABLE. THE ASSESSEE CONTENDED THAT TH E OTHER CROP ARE CHANA, MATAR, SARSO, TIL, URAD, WHEAT AND EVEN DOUBLE CROP HAS BEEN IRRIGATED. DURING THE IMPUGNED ASSESSMENT YEAR, WE NOTED THAT THE ASSESSEE HAS SHOWN AGRICULTURAL INCO ME @ RS. 7895/- PER ACRE WHILE DURING THE ASSESSMENT YEAR 20 05-06, WHICH HAS BEEN COMPLETED U/S 143(3), THE AGRICULTUR AL INCOME HAS BEEN ACCEPTED BY THE REVENUE @ RS. 8900/- PER ACRE. ONCE THE REVENUE HAS ACCEPTED THAT THE ASSESSEE HAS DERI VED AGRICULTURAL INCOME UNTIL AND UNLESS THERE ARE EVID ENCES TO THE CONTRARY IN THE POSSESSION OF THE REVENUE, THE QUAN TUM OF THE INCOME AS DERIVED BY THE ASSESSEE CANNOT BE DISTURB ED, ESPECIALLY WHEN THE HIGHER INCOME HAS BEEN ACCEPTED IN THE SUB SEQUENT SUCCEEDING ASSESSMENT YEAR. WE NOTED THAT EVEN THOU GH WE NOTED THAT THE CIT(A) HAS ESTIMATED THE AGRICULTURA L INCOME @ RS.5000/- PER ACRE, NO BASIS OR MATERIAL HAVE BEEN BROUGHT ON SMT.SUSHMA SINGH BUNDELA, BHOPAL. 4 I.T.A.NOS.360 & 361/IND/2013 RECORD TO SHOW HOW THE INCOME HAS BEEN ESTIMATED @ RS.5000/-. ONCE THE ASSESSEE HAS BROUGHT THE EVIDENCE AND THE HIGHER INCOME HAS BEEN ACCEPTED IN THE ASSESSMENT YEAR 200 5-06, WE ARE OF THE VIEW THAT ONUS GETS SHIFTED ON THE REVEN UE TO PROVE THAT THE APPARENT IS NOT REAL. NO SUCH EVIDENCE OR MATERIAL HAS BEEN BROUGHT ON RECORD OR PLACED BEFORE US BY THE L D. SENIOR DR. UNDER THESE CIRCUMSTANCES, WE SET-ASIDE THE ORDER O F CIT(A) AND DIRECT THE ASSESSING OFFICER TO ACCEPT THE AGRICULT URAL INCOME AT RS. 2,66,000/- AS RETURNED BY THE ASSESSEE IN EACH OF THE ASSESSMENT YEAR. THUS, GROUND NOS. 2 TO 6 IN BOTH T HE ASSESSMENT YEARS ARE ALLOWED. 7. GROUND NOS. 7, 8, 9 & 10 RELATE TO THE ADDITION MAD E IN EACH OF THE ASSESSMENT YEAR IN RESPECT OF UNEXPLAIN ED CASH CREDIT AMOUNTING TO RS. 1 LAKH RECEIVED BY THE ASSESSEE AS GIFT. 8. THE A. R. CONTENDED THAT THE APPELLANTS CHILDREN R ECEIVED GIFT IN EACH OF THE ASSESSMENT YEAR FOR THEIR EDUCA TION FROM THEIR UNCLE. THE GIFTS WERE NOT RECEIVED BY THE ASSESSEE AND, THEREFORE, CANNOT BE ASSESSED IN THE HANDS OF THE ASSESSEE AND SHOULD BE TAXED IN THE HANDS OF THE CHILDREN OR CLUBBED WITH THE INCOME OF THE PARENTS, WHOSE INCOME FOR THE RELEVANT ASSESSME NT YEAR WAS GREATER. NO SUCH EXERCISE WAS CARRIED OUT BY THE AS SESSING SMT.SUSHMA SINGH BUNDELA, BHOPAL. 5 I.T.A.NOS.360 & 361/IND/2013 OFFICER. THE DONOR IS AGRICULTURIST AND STAYING WIT H THE FAMILY OF THE ASSESSEE. THE GIFT WAS MADE OUT OF LOVE AND AFF ECTION. THE LD. SENIOR DR, ON THE OTHER HAND, RELIED ON THE ORDER O F CIT(A) AND CONTENDED THAT THE ASSESSEE HAS FRESH EVIDENCE BY W AY OF DECLARATION OF SHRI JAGAT PRATAP SINGH. BEFORE CIT( A) NO SUCH DECLARATION WAS FILED. BEFORE THE ASSESSING OFFICER NO DATE OF RECEIPT OF THE DONATION WAS SHOWN. SIMILARLY, GIFT HAS BEEN RECEIVED BY THE ASSESSEE FROM THE SAME PERSON IN TH E IMMEDIATELY PRECEDING AND THE SUBSEQUENT YEARS. THE ONUS IS ON THE ASSESSEE TO PROVE THAT THE GIFTS ARE GENUINE IN VIEW OF THE DECISION IN THE CASE OF IN THE CASE OF CIT VS. MOHA N KALA, 291 ITR 278 ( S. C.). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. WE NOTED THAT THE ASSESSEE HAS SUBMITTED THE DECLARATION AND THE EVIDENCE IN RESPECT OF THE GIFT BEFORE THE CIT(A) FOR THE FIRST TIME, ALTHOUGH THE EVIDENCE IN RESPECT OF LAND RECORD ETC. WERE BEFORE THE ASSESSING OFFICER. THE ASSESSEE ALTHOUGH HAS WRITTEN THAT SHRI TEJ PRATAP SINGH ALI AS JAGAT PRATAP SINGH, BUT WHILE CIT(A) BY GIVING FINDINGS H ELD THAT BOTH ARE THE DIFFERENT PERSONS. WE, THEREFORE, SET-ASIDE THE ORDER OF CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF ASSESS ING OFFICER WITH SMT.SUSHMA SINGH BUNDELA, BHOPAL. 6 I.T.A.NOS.360 & 361/IND/2013 THE DIRECTION THAT THE ASSESSING OFFICER SHALL LOOK INTO THE FACTS OF THIS ISSUE AFRESH AND ASCERTAIN WHETHER TEJ PRATAP AND JAGAT PRATAP SINGH FROM WHOM THE GIFTS HAVE BEEN RECEIVED BY THE CHILDREN OF THE ASSESSEE FOR THEIR EDUCATION ARE TW O DIFFERENT PERSONS OR THE ONE PERSON. WHETHER SUCH GIFTS WERE RECEIVED IN THE EARLIER YEARS AND THESE GIFTS CAN BE REGARDED T O HAVE BEEN CASH CREDITED IN THE BOOKS MAINTAINED BY THE ASSESS EE SO THAT THE PROVISIONS OF SECTION 68 COULD BE APPLIED. THE ASSESSEE IS ALSO DIRECTED TO SUBMIT NECESSARY EVIDENCE ON WHICH HE MAY RELY BEFORE THE ASSESSING OFFICER. THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN BOTH THE ASSESSMENT YEARS. 10. IN THE RESULT, BOTH THE APPEALS ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES SD/- SD/- (MUKUL KR. SHRAWAT) (P. K. BANSAL) JUDICIAL MEMBER ACCOUNTANT M EMBER INDORE; DATED: 19/09/2014 CPU*SPS SMT.SUSHMA SINGH BUNDELA, BHOPAL. 7 I.T.A.NOS.360 & 361/IND/2013 / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. $%$&' # # ( / CONCERNED CIT 4. # # ( ( ) / THE CIT(A), INDORE 5. +,# &' , # # &' , -.% / DR, ITAT, INDORE 6. ,/0 1 / GUARD FILE. / BY ORDER, -# -# -# -# $2 $2 $2 $2 (ASSTT.REGISTRAR) ITAT, IN DORE 1. DATE OF DICTATION- 11.09.2014 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15.09.2014 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S. .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 26.09.2014 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER