SUDARSHAN SHARMA, Kota V. ITO, Kota

ITA 408/JPR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5589 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 18-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Assessee Lawyers: SATISH AJMERA; SAJNEEV MATHUR
• Keywords: Gift; Revised return

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO.408/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI SUDERSHAN SHARMA 7, ADARSH NAGAR, KOTA CUKE VS. THE ITO WARD- 2(1), KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: BBLPS 9561 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI SAJNEEV MATHUR & SHRI SATISH AJMERA, CA JKTLO DH VKSJ LS@ REVENUE BY: SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/02/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 22/02/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A) , KOTA DATED 04-02-2016 FOR THE ASSESSMENT YEAR 2 010-11 RAISING FOLLOWING GROUNDS OF APPEAL. 1. THE LD. CIT(A) ERRED IN NOT ACCEPTING THE CONTENTION THAT THE ADDITION OF RS. 1,76,000/- WAS ERRONEOUS AND THE ASSESSEE WAS PRESSURED TO SURRENDER THE SAI D. ITA NO.408/JP/2016 SHRI SUDHARSHAN SHARMA VS. ITO, WARD- 2(1), KOTA 2 2. THE LD. CIT(A) ERRED IN NOT ACCEPTING THE GIFT O F RS. 1.01 LAC AND NOT DELETING THE ADDITION MADE BY THE AO ON THIS. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- THE ASSESSEE IN SUPPORT OF THESE CASH CREDITORS PRODUCED CONFIRMATIONS/ AFFIDAVITS OF SOME PERSONS I.E. SHRI SUBODH BHARADWAJ, SHRI ASHISH SARASWAT, SHRI AMIT SHARMA, SMT.MEENA SHARMA, SHRI VIMAL KUMAR SHARMA, SHRI ANJANI JHA, SHRI DEEPAK CHOWDHARY AGGREGATING TO RS. 1,19,000/-. HE ALSO PRODUCED SHRI DEEPAK CHOUDHARY , SHRI ASHISH SARASWAT FOR RECORDING THEIR STATEMENT IN S UPPORT OF LOAN GIVEN BY THEM TO THE ASSESSEE. HOWEVER,ON 17-0 1- 2013,HE FILED HIS REVISED RETURN BY SURRENDERING 12 CASH CREDITORS AMOUNTING TO RS. 176,000/- OUT OF ABOVE 1 7 CASH CREDITORS FOR RS. 2,60,000/-. THE STATEMENT IN THIS REGARD CONSIDERED AND BEING NOT ENTERTAINING HIS REVISED R ETURN OF INCOME FILED ON 17-01-2013 AS BELATED /HONEST, THE SURRENDERED AMOUNT IN THE REVISED RETURN RS. 1,76,0 00/- IS ADDED TO TOTAL INCOME SHOWN BY THEAA ORIGINALLY AT RS. 1,58,870/-. PENALTY PROCEEDINGS U/S 271(1) IS INIT IATED SEPARATELY ON THIS ACCOUNT FOR FILING INACCURATE PA RTICULARS/ CONCEALING INCOME. I HAVE GONE THROUGH THE ASSESSEE'S SUBMISSION AND AOS FINDINGS. IN VIEW OF THE FACT THAT THE ASSESSE E FILED A REVISED THOUGH INVALID RETURN BEYOND TIME BUT BEFOR E THE CONCLUSION OF ASSESSMENT PROCEEDINGS WITH AN INTENT ION TO WARD OFF THE PENAL PROCEEDINGS AND ADDITIONS EXPECT ED IN THE COURSE OF ASSESSMENT SINCE THERE WAS ALREADY ENQUIR Y GOING ON REGARDING THE CREDITORS, HE CANNOT NOW CLAIM THA T HE WAS PRESSURIZED TO DO SO. THE FACT IS THAT HE WAS UNABL E TO PROVE ANY CREDITS OR GIVE ANY DOCUMENTS FROM THE CREDITOR S TO SUPPORT HIS CONTENTIONS EITHER DURING THE ASSESSMEN T OR DURING THE APPELLATE PROCEEDINGS. HIS EXPLANATION R EGARDING THE AO PRESSURIZING OR TORTURING HIM TO FORCE SURRE NDER OF ITA NO.408/JP/2016 SHRI SUDHARSHAN SHARMA VS. ITO, WARD- 2(1), KOTA 3 THE SAID AMOUNT OF RS. 1,76,000/- IS NOT BORNE OUT BY ANY FACTS PRODUCED. THE ADDITION HAS THEREFORE, BEEN RI GHTLY MADE IN MY OPINION. THE SAME IS ACCORDINGLY CONFIRM ED. 2.2 AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT THE LD. AR OF THE AS SESSEE COULD NOT ESTABLISH THAT AO HAD PRESSURIZED OR TORTURED THE ASSESSEE WHILE MAKING ADDITION OF RS. 1,76,000/- DURING THE COURSE OF ASSESSMENT P ROCEEDINGS. IT WAS ASSESSEE WHO HAS FILED THE RETURN VOLUNTARILY. THE LD. CIT(A) HAS ALSO TAKEN THE SAME VIEW THAT IT IS NOT BORNE OUT FROM THE ORDER OF THE AO THAT HE HAD PRESSURIZED OR TORTURED THE ASSESSEE IN MAKI NG ADDITION OF RS. 1,76,000/-. IN VIEW OF ABOVE FACTS AND CIRCUMSTAN CES OF THE CASE, I FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. C IT(A) ON THIS ISSUE. THUS GROUND NO. 1 OF THE ASSESSEE IS DISMISSED. 3.1 APROPOS GROUND NO. 2 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- THE AO IN THE ASSESSMENT ORDER MENTIONED AS UNDER:- THE ASSESSEE HAS SHOWN A GIFT OF RS. 1,01,000/- FRO M HIS UNCLE DURING THE YEAR UNDER CONSIDERATION. PERU SAL OF STATEMENT RECORD OF UNCLE OF THE ASSESSEE AND THE G IFT DEED FILED, IT REVEALS THAT THE UNCLE OF THE ASSESSEE HA S GOT RETIRED ON 31-10-2009 AND AVAILED RETIREMENT BENEFITS AFTER THIS DATE WHILE HE HAS GIVEN GIFT OF RS. 1,01,000/- TO THE AS SESSEE ON 20-10-2009. THIS GIFT HAS BEEN GIVEN IN CASH AND TH ERE IS NO WITNESS / OTHER EVIDENCE EXCEPT THIS GIFT DEED. THI S GIFT DEED IS NEITHER NOTORIZED NOR SUPPORTED FROM OTHER DOCUM ENT. THE ITA NO.408/JP/2016 SHRI SUDHARSHAN SHARMA VS. ITO, WARD- 2(1), KOTA 4 UNCLE OF THE ASSESSEE HAS STATED THAT HE NEVER GIFT S ANYTHING TO HIS WIFE OR TO HIS SON BUT GIFTED RS. 1,01,000/- TO HIS NEPHEW BEFORE HIS RETIREMENT OUT OF CASH LYING WITH HIM AT HIS HOUSE. HOWEVER, NO SOURCE OF CASH LYING AT HIS HOUSE HAS BEEN EXPLAINED BY THE UNCLE OF ASSESSEE. THIS IS A CASE OF CAPITAL APPRECIATION BY THE ASSESSEE AND AFTER TAKI NG THE CASE OF SCRUTINY, HE COOKED THE SOTRY OF GIFT TAKEN FROM HIS UNCLE. THE SAID INCOME WAS ACTUALLY HIS INCOME FROM UNDISC LOSED SOURCES DURING THE YEAR UNDER CONSIDERATION. HENCE, THE SAME IS ADDED IN HIS TOTAL INCOME. PENALTY PROCEEDINGS U /S 271(1) IS INITIATED SEPARATELY ON THIS ACCOUNT FOR FILING INACCURATE PARTICULARS / CONCEALING INCOME I HAVE GONE THROUGH ASSESSEE'S SUBMISSION AND AOS FINDINGS. THERE IS NO EVIDENCE WHICH COULD JUSTIFY THE AVAILABILITY OF CASH WITH THE DONOR AND ALSO IF HE WANTED TO PROVE THE SOURCE, NOTHING PREVENTED THE ASSESSEE FR OM OBTAINING BANK STATEMENTS OF THE DONOR TO THE AO. T HE GIFT DEED IN QUESTION WAS NOT EVEN NOTORIZED. UNDER THE CIRCUMSTANCES, THE APPELLANT HAS FAILED TO PROVE TH E BONA FIDES OF THE GIFT AND THEREFORE, I HAVE NO REASON T O DISAGREE WITH THE FINDINGS GIVEN BY THE AO IN THE ASSESSMENT ORDER. THE ADDITION OF RS. 1,01,000/- IS THEREFORE, CONFIR MED. 3.2 AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED FROM GIFT DEED PAGE 22 OF THE PAPER BOOK FILED BY THE LD. AR OF THE ASSESSEE WHEREIN THE UNCLE OF THE ASSESSEE SHRI GOPAL DUTT SHARMA HAD CONFIRMED THAT HE HAD GIFTED A SUM OF RS. 1.01 LAC TO HIS NEPHEW I.E. ASSESSEE BY CASH ON 20-10-2009 OUT OF LOVE AND AFFECTION. THE UNCLE OF THE ASSESSEE SHRI GOPAL DUT T SHARMA HAD EXPLAINED THE SOURCE WHICH IS OUT OF WITHDRAWAL FR OM HIS SAVING BANK ACCOUNT NO. 51019707295, SBBJ, STATION ROAD, KOTA. HIS PAN IS ITA NO.408/JP/2016 SHRI SUDHARSHAN SHARMA VS. ITO, WARD- 2(1), KOTA 5 AGBPS 2570E. THE ASSESSEE HAS ALSO SHOWN THE GIFT O F RS. 1.01 LAC FROM HIS UNCLE IN HIS CAPITAL ACCOUNT AS ON 31-03-2010 ( PAGE 20 OF THE PAPER BOOK). IN VIEW OF THE ABOVE FACTS AND DOCUMENTARY E VIDENCES, IN MY CONSIDERED VIEW, THE LOWER AUTHORITIES WERE NOT JUS TIFIED IN SUSTAINING THE ADDITION OF RS. 1.01 LACS. I DIRECT TO DELETE THE S AME. THUS GROUND NO. 2 OF THE ASSESSEE IS ALLOWED. 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 /02/2 017. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22 /02/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SUDHARSHAN SHARMA, KOTA 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2(1), KOTA 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 408/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR