ITO, Lucknow V. Shri Vipin Kumar Singh, Lucknow

ITA 415/LKW/2011

• Counselvise Citation: 41523714 RSA 2011
• Duration Of Justice: 3 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-07-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 04-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Gift; Salary income; Corroborative evidences
• Section: 131

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.415/LKW/2011 ASSESSMENT YEAR:2005 - 06 INCOME TAX OFFICER - VI(4), LUCKNOW. VS. SHRI VIPIN KUMAR SINGH, PROP. SANKALP FILLING STATION, D - 228, AASHIYANA COLONY, LUCKNOW. PAN:AXBPS3006J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI AJAY KUMAR, D. R. RESPONDENT BY SHRI RAKESH GARG, ADVOCATE DATE OF HEARING 02/07/2014 DATE OF PRONOUNCEMENT 2 1 /08/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - II, LUCKNOW DATED 01/04/2011 FOR ASSESSMENT YEAR 2005 - 2006. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DISMISSING THE APPEAL OF THE DEPARTMENT WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED ON THE FACTS IN PARTLY ALLOWING THE APPEAL OF THE ASSESSEE ON THE BASIS OF VERIFICATION OF, GIFTS AND LOANS RECEIVED BY HIM. HE HAS FAILED TO APPRECIATE THE FACT THAT, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS UNABLE TO PROVE THE FINANCIAL CAP ACITY OF THE LENDERS/ DONORS AS WELL AS THE GENUINENESS OF THE TRANSACTIONS. 2 3. THE LD. ,CIT (A) FAILED TO APPRECIATE THAT MERE OWNERSHIP OF AGRICULTURAL LAND DOES NOT PROVE INCOME THERE FROM. IF THE DONORS/ LENDERS HAD HIGH AGRICULTURAL INCOME FROM LAND EVERY YEAR, THEN THEY WOULD DEFINITELY HAVE BANK ACCOUNTS, AS WELL AS OTHER INVESTMENTS FROM WHICH THEY WOULD BE DERIVING INCOME FROM OTHER SOURCES, WHICH IS NOT THE CASE. 4. THE LD. CIT (A) FAILED TO APPRECIATE THAT THE ASSESSEE'S FATHER GIFTED MONEY BOR ROWED BY HIM FOR CONSTRUCTION OF HOUSE PROPERTY. THIS PROVES THAT THE FAMILY'S FINANCIAL STATUS DOES NOT EXPLAIN THE LOANS/ GIFTS MADE TO THE ASSESSEE. 5. APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUNDS OF APPEAL, AS STATED ABOVE, AS AND WHEN NEED OF DOING SO ARISES WITH THE PRIOR PERMISSION OF THE HON'BLE COURT. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 4. WE HAVE CONSIDERED THE RIVAL S UBMISSIONS. THE ISSUE IN DISPUTE HAS BEEN DECIDED BY CIT(A) AS PER PARA 6 AND 6.1 OF HIS ORDER WHICH ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 6. I HAVE GONE THROUGH THE SUBMISSIONS OF THE APPELLANT, REMAND REPORT OF THE ASSESSING OFFICER AND ALSO THE FACTS OF CASE. FROM THE PERUSAL OF ALL THESE MATERIALS, IT IS GATHERED THAT THE ASSESSING OFFICER HAS EXAMINED THE ISSUES IN DETAIL DURING THE REMAND PROCEEDINGS. ADMITTEDLY, THE LENDER AND THE DONORS ARE THE FAMILY MEMBERS OF THE APPELLANT. THE STATEMENTS OF SMT. JAYANTA DEVI, SRI BRIJESH KUMAR SINGH, SRI HARIKESH KUMAR SINGH AND SRI AKHILESH KUMAR SINGH WERE RECORDED UNDER SECTION 131 BY THE ASSESSING OFFICER ON 25.02.2011 AND STATEMENT OF SRI RAMESH PRATAP SINGH HAS BEEN RECORDED UNDER SECTION 131 BY THE ASSESSING OFFICER ON 23.02.2011. HENCE, THE IDENTITY OF THESE PERSONS HAS BEEN PROVED. SMT. JAYANTA DEVI, SRI BRIJESH KUMAR SINGH, SRI 3 HARIKESH KUMAR SINGH AND SRI RAMESH PRATAP SINGH IN THEIR STATEMENTS HAVE CONFIRMED THE GIFTS GIVEN TO THE APPELLANT. SRI AKHILESH KUMAR SINGH IN HIS STATEMENT HAS CONFIRMED THE ADVANCING OF LOAN TO THE APPELLANT. ADMITTEDLY, SMT. JAYANTA DEVI, SRI BRIJESH KUMAR SINGH, SRI HARIKESH KUMAR SINGH AND SRI AKHILESH KUMAR SINGH ARE NOT ASSESSED TO INCOME TAX, BUT, THEY ARE HAVING SUBSTANTIAL AGRICULTURAL LAND. SRI AKHILESH SINGH IS HAVING PAN DAOPS1235N. SRI AKHILESH KUMAR SINGH HAS GIVEN THE LOAN OF RS.3,10,000/ - THROUGH THE DEMAND DRAFT. SRI RAMESH PRATAP SINGH IS PRESENTLY POSTED AS UNDER SECRETARY IN THE GOVERNMENT OF UTTAR PRADESH AND ALSO HAVING INCOME FROM SALARY. SRI RAMESH PRATAP SINGH HAS FILED HIS RETURN OF INCOME OF THE A.Y. 2005 - 06 WITH ITO WARD 2(1), LUCKNOW ON 03 .08.2005 AND HIS PAN IS AXJPS2241P. SRI RAMESH PRATAP SINGH, FATHER OF THE APPELLANT HAS GIFTED A SUM OF RS.2,25,000/ - IN CASH OUT OF LOAN TAKEN FROM BANK AS EVIDENT FROM HIS BANK ACCOUNT NO.414000NC20031293 WITH PUNJAB NATIONAL BANK, AASHIANA KHAZANA COMP LEX, LUCKNOW. THESE FIVE PERSONS HAVE ALSO FILED AFFIDAVITS IN SUPPORT OF GIFTS AND LOAN. THE APPELLANT HAS FILED PHOTOCOPY .OF APPLICATION (AS ANNEXURE - IN) DATED 12.10.2009 JOINTLY MOVED BY SMT. JAYANTA, SRI RAMESH PRATAP SINGH, SRI BRIJESH PRATAP, SRI AK HILESH PRATAP AND SRI HARIKESH PRATAP TO THE TEHSILDAR, BADLAPUR, DISTRICT - JAUNPUR FOR CONFIRMING THEIR ANNUAL AGRICULTURAL INCOME. ON THEIR APPLICATION, IT IS REPORTED AND CERTIFIED ON 12.10.2009/16.10.2009 BY THE REVENUE AUTHORITY THAT THE ANNUAL AGRICULTURAL INCOME FROM THEIR TOTAL AGRICULTURAL HOLDINGS WAS OF RS.8,60,000/ - . THE ASSESSING OFFICER IN HIS REMAND REPORT HAS CATEGORICALLY MENTIONED THAT SMT. JAYANTA DEVI, SRI BRIJESH KUMAR SINGH, SRI HARIKESH KUMAR SINGH AND SRI RAMESH PRATAP SINGH HA D CONFIRMED THE GIFTS GIVEN TO THE APPELLANT, AND SRI AKHILESH SINGH HAS CONFIRMED THE ADVANCING OF LOAN TO THE APPELLANT. THE ASSESSING OFFICER HAS NOT GIVEN ANY ADVERSE FINDINGS IN RESPECT OF GIFTS AND LOAN GIVEN BY THESE FIVE PARTIES. THUS, THE GIFTS MA D E BY SMT. JAYANTA DEVI, SRI BRIJESH KUMAR SINGH, SRI HARIKESH KUMAR SINGH & SRI RAMESH PRATAP SINGH, AND LOAN ADVANCED BY SRI AKHILESH SINGH CANNOT BE TREATED AS UNEXPLAINED CASH CREDITS. THE ASSESSING OFFICER MAY PASS ON THE INFORMATION OF THESE GIFTS AN D LOAN TO THE ASSESSING OFFICER HAVING JURISDICTION OVER THESE DONORS & LENDER. UNDER THESE FACTS AND CIRCUMSTANCES, THE ADDITIONS OF RS.2 , 21,000/ - ; RS.1,21,000/ - ; RS.1,21,000/ - ; RS.2,25,0007 - MADE AS 4 UNEXPLAINED G IFTS AND ADDITION OF RS.3,10,000 / - MADE ON ACCOUNT OF UNEXPLAINED LOAN, ARE HEREBY DELETED. 6.1 AS REGARD GIFT OF RS . 1,04,920 / - STATED TO BE MADE BY SMT. SUSHILA SINGH, MOTHER OF THE APPELLANT, THE APPELLANT HAS NEITHER PRODUCED HER FOR CONFIRMATION OF GIFT BEFORE THE ASSESSING OFFICER DURING T HE ASSESSMENT PROCEEDINGS NOR DURING THE REMAND PROCEEDING. EVEN DURING THE APPELLATE PROCEEDINGS, SHE WAS NOT COME FORWARD FOR CONFIRMING THE GIFT. THE APPELLANT HAS NOT FURNISHED ANY EVIDENCE IN RESPECT OF HER ILLNESS. SHE IS A LADY OF 51 YEARS OLD AND C A N BE PRODUCED FOR EXAMINATION. IT IS STRANGE THAT THE APPELLANT CAN PRODUCE HIS OLD GRANDMOTHER, BUT IS NOT ABLE TO PRODUCE HIS MOTHER FOR THE REASON BEST KNOWN TO HIM. THE APPELLANT HAS NOT SHOWN ANY EVIDENCE/ MATERIAL IN RESPECT OF THE CREDITWORTHINESS FOR OF DONOR FOR MAKING THE GIFT. THE GENERAL ARGUMENT OF THE APPELLANT THAT SHE HAS MADE THE GIFT OUT OF HER PAST SAVINGS CANNOT BE ACCEPTED WITHOUT ANY SUPPORTING EVIDENCE. UNDER THESE FACTS AND CIRCUMSTANCES, THE CREDITWORTHINESS OF DONOR AND GENUINENES S OF GIFT OF RS.1,04,920 / - HAVE NOT BEEN PROVED. HENCE, THE ADDITION OF RS.1,04,920 / - AS MADE BY THE ASSESSING OFFICER IS HEREBY CONFIRMED. 4.1 FROM THE ABOVE PARAS FROM THE ORDER OF CIT(A), WE FIND THAT A CLEAR FINDING IS GIVEN BY CIT(A) THAT THE LENDERS AND THE DONORS ARE FAMILY MEMBERS OF THE ASSESSEE AND THE STATEMENT OF SMT. JAYANTA DEVI, SRI BRIJESH KUMAR SINGH, SRI HARIKESH KUMAR SINGH AND SRI AKHILESH KUMAR SINGH WERE RECORDED UNDER SECTION 131 BY THE ASSESSING OFFICER ON 25.02.2011 AND STATEMENT OF SRI RAMESH PRATAP SINGH HAS BEEN RECORDED UNDER SECTION 131 BY THE ASSESSING OFFICER ON 23.02.2011. BASED ON THESE FACTS, HE HAS GIVEN A FINDIN G THAT IDENTITY OF THESE PERSONS HAS BEEN PROVED. HE HAS ALSO GIVEN A FINDING THAT THESE PERSONS HAVE CONFIRMED GIVING THE GIFT OR LOAN TO THE ASSESSEE. HE HAS ALSO GIVEN A FINDING THAT THESE PERSONS HAVE SUBSTANTIAL AGRICULTURAL LAND. REGARDING SHRI AK HILESH KUMAR SINGH, HE HAS GIVEN A FINDING THAT THIS PERSON IS HAVING PAN AND HAS GIVEN LOAN OF RS.3.50 LAC BY DEMAND DRAFT. HE HAS ALSO GIVEN DIRECTION 5 TO THE ASSESSING OFFICER THAT HE MAY PASS ON THIS INFORMATION OF THESE GIFTS AND LOANS TO THE ASSESSIN G OFFICERS HAVING JURISDICTION OVER THESE PERSON S. UNDER THESE FACTS, WE FIND THAT THE IDENTITY AND CREDITWORTHINESS OF THESE PERSONS HAS BEEN ESTABLISHED AND THEY ARE RELATIVE OF THE ASSESSEE AND THEREFORE, GIVING OF GIFTS BY RELATIVE HAVING CREDITWORTH INESS CANNOT BE REJECTED AND ADDED IN THE HANDS OF THE ASSESSEE AS INCOME. CONSIDERING ALL THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 1 /08/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR