Sh. Sanjay Beri, Jalandhar V. The Income Tax Officer, Jaandhar city

ITA 418/ASR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9633 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 05-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N MISRA
• Assessee Lawyers: R D SHARMA
• Keywords: Gift; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (CAMP AT JALANDHAR) BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.418(ASR)/2015 ASSESSMENT YEAR: 2008-09 SH. SANJAY BERI, HOUSE NO.424, STREET NO.11, AVTAR NAGAR, JALANDHAR. PAN: AGRPB-9962D VS. ITO, WARD-1(4), JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. R.D. SHARMA (CA) RESPONDENT BY: SH. A.N. MISRA (DR) DATE OF HEARING: 23.06.2016 DATE OF PRONO UNCEMENT: 04.08.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE OR DER OF LEARNED CIT(A), JALANDHAR, DATED 05.05.2015 FOR ASST. YEAR: 2008-09. 2. THE TWO ISSUES RAISED IN THIS APPEAL ARE THE ACT ION OF LEARNED CIT(A), BY WHICH HE HAD CONFIRMED AN ADDITION OF RS .2,00,000/-, WHICH THE ASSESSING OFFICER HAD MADE ON ACCOUNT OF INTROD UCTION OF CAPITAL AND FURTHER ON ACCOUNT OF RS.2,40,000/- WHICH THE ASSES SEE HAD CLAIMED TO HAVE BEEN RECEIVED AS GIFTS FROM VARIOUS PERSONS AN D WHICH THE ASSESSING OFFICER HAD TREATED AS INCOME FROM OTHER SOURCES. 3. AT THE OUTSET, THE LEARNED AR SUBMITTED THAT THE RE IS A DELAY OF 11 DAYS IN FILING OF THE APPEAL WHICH HAD HAPPENED ON ACCOUNT OF ILLNESS OF THE ASSESSEE AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO A COPY OF ITA NO.418 (ASR)/2015 ASST. YEA R: 2008-09 2 MEDICAL CERTIFICATE DATED 18.07.2015 PLACED ON RECO RD. THE LEARNED AR SUBMITTED THAT IN VIEW OF THE SUBSTANTIAL JUSTICE T HE DELAY IN FILING THE APPEAL MAY BE CONDONED. 4. THE LEARNED DR HAD NO OBJECTION TO CONDONATION O F DELAY, THEREFORE, DELAY WAS CONDONED AND LEARNED AR WAS AS KED TO PROCEED WITH HIS ARGUMENTS. 5. THE LEARNED AR SUBMITTED THAT ASSESSING OFFICER HAD MADE AN ADDITION OF RS.2,00,000/- WHICH THE ASSESSEE HAD IN TRODUCED IN HIS CAPITAL ACCOUNT OUT OF HIS PAST SAVINGS. THE ASSESS ING OFFICER HAS HELD THAT NO EXPLANATION WAS FILED BY THE ASSESSEE AND L EARNED CIT(A) HAS ALSO NOT CONSIDERED THE EXPLANATION FURNISHED BY ASSESSE E. HE SUBMITTED THAT ASSESSEE VIDE LETTER DATED 08.06.2010 PLACED AT (PB PAGE -14) HAD FILED A LETTER IN WHICH THE ANNUAL SAVINGS OF RS.81,000/- P ER YEAR WERE EXPLAINED. THE LEARNED AR SUBMITTED THAT ASSESSEE W AS AN OLD ASSESSEE AND HAS BEEN FILING RETURNS SINCE 1986 WHICH FACT H AS BEEN NOTED BY LEARNED CIT(A) AT PAGE 4 OF HIS ORDER BUT THE BENEF IT OF PAST SAVINGS HAS NOT BEEN ALLOWED BY THE AUTHORITIES BELOW BY HOLDIN G THAT NO EXPLANATION WAS FURNISHED WHEREAS THE FACT REMAINS THAT THE EX PLANATION WAS FURNISHED. 6. AS REGARDS THE ADDITION ON ACCOUNT OF GIFTS REC EIVED BY ASSESSEE, THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAD FILE D AFFIDAVITS FROM THE DONORS AND AUTHORITIES BELOW DID NOT FIND ANYTHING WRONG IN THE AFFIDAVITS AND ASSESSEE HAD RELIED ON A NUMBER OF C ASE LAWS, FOR THE ITA NO.418 (ASR)/2015 ASST. YEA R: 2008-09 3 PROPOSITION THAT WHERE THE ASSESSEE HAD FILED EVIDE NCES OF HAVING RECEIVED MONIES FROM OTHER PERSONS THE ONUS WAS SHI FTED TO ASSESSING OFFICER TO PROVE THAT ASSESSEE HAD NOT RECEIVED SUC H AMOUNT. THE LEARNED AR SUBMITTED THAT ASSESSING OFFICER WITHOUT DISCHAR GING HIS ONUS HAD MADE THE ADDITIONS. 7. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THA T THE ASSESSING OFFICER HAD ALREADY BEEN GIVEN CREDIT OF RS.50,000/ - WHICH THE ASSESSEE HAD CLAIMED TO BE OPENING BALANCE OF CASH IN HAND A ND FURTHER NO PROOF OF PAST SAVINGS WAS FILED BY ASSESSEE, THEREFORE, T HE CONTENTION OF ASSESSEE THAT PAST SAVINGS WERE NOT CONSIDERED IS N OT CORRECT. 8. AS REGARDS THE ADDITION ON ACCOUNT OF GIFTS THE LEARNED DR SUBMITTED THAT THE DONORS HAD NO CASH AVAILABLE WIT H THEM AS CLAIMED BY ASSESSEE AS IS APPARENT FROM THE FINDINGS OF THE LEARNED CIT(A), THEREFORE, LEARNED CIT(A) HAD RIGHTLY CONFIRMED THE ADDITIONS. 9. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT AS REGARDS THE ISSUE OF ADDITION OF CAPITAL, IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD FILED A LETTER DATED 08.06.2010 PLACED AT (PB PAGE-14) TO HIGHLIGHT HIS ANNUAL SAVI NGS AMOUNTING TO RS.81,000/-. SIMILARLY, IT IS ALSO AN UNDISPUTED FA CT THAT ASSESSEE AND HIS WIFE ARE INCOME TAX ASSESSEES FOR THE LAST SO M ANY YEARS. THE ASSESSEE HIMSELF IS AN ASSESSEE FROM 1986, THEREFOR E, THE FINDINGS OF THE ASSESSING OFFICER AND LEARNED CIT(A) THAT NO EXPLAN ATION WAS GIVEN BY ASSESSEE IS NOT CORRECT, THEREFORE, IN VIEW OF THE ABOVE FACTS AND ITA NO.418 (ASR)/2015 ASST. YEA R: 2008-09 4 CIRCUMSTANCE, WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE TO OFFICE OF ASSESSING OFFICER TO READJUDICATE ON THE ISSUE AFTE R HEARING THE ASSESSEE IN THIS REGARD. 10. AS REGARDS THE ISSUE OF GIFTS RECEIVED BY ASSES SEE, WE FIND THAT THE AUTHORITIES BELOW HAS NOT CONSIDERED THE VARIOUS CA SE LAWS CITED BY ASSESSEE FOR THE PROPOSITION THAT ONCE THE ASSESSEE FILED NECESSARY CONFIRMATIONS IN THE FORM OF AFFIDAVITS REGARDING R ECEIPT OF GIFTS, THE ONUS OF THE ASSESSEE WAS DISCHARGED. IN VIEW OF THE FACT S WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE ALSO TO THE OFFICE OF ASSESSING OFFICER, WHO SHOULD DECIDE AFRESH AFTER HEARING THE ASSESSEE AND AFTER CONSIDERING THE VARIOUS CASE LAWS RELIED ON BY HIM. NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OPPORTUNITY OF BEING HEARD. 11. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04 .08.2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCO UNTANT MEMBER DATED: 04.08.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER