SHRI RAVINDRA N DESHPANDE, MUMBAI V. INCOME TAX OFFICER(IT)-2(1)(1), MUMBAI

ITA 4289/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3339 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 22-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Assessee Lawyers: KETAN L VAJANI
• Keywords: Gift
• Section: 143(3); 201; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM ITA NO. 4289/ MUM/ 2018 ( ASSESSMENT YEAR: 2012 - 13 ) SHRI RAVINDRA N DESHPANDE 3/60, PARAG ROOP NAGAR, BANDRA (E) MUMBAI 400 051 VS. THE INCOME TAX OFFICER (I.T.) 2(1)(1) S CINDIA HOUSE 1 ST FLOOR BALLARD ESTATE MUMBAI 400 038 PAN/GIR NO. ADDPD1654P (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI KETAN L VAJANI REVENUE BY SHRI AKHTAR H ANSARI DATE OF HEARING 07 / 11 / 2019 DATE OF PRONOUNCEMENT 13 / 11 /2019 / O R D E R PER: R.C. SHARMA, A.M. THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) 56, MUMBAI DATED 26/04/2018 FOR A.Y.2012 - 13 IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961. 2. THE ONLY GRIEVANCE OF ASSESSEE RELA TES TO ADDITION OF RS.11 LAKHS MADE U/S.69A OF THE IT ACT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND IS REGULARLY ASSESSED TO INCOME - TAX. THE A SSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2012 - 13 2 ITA NO. 4289/MUM/2018 SHRI RAVINDRA N DESHPANDE DECLARING INCOME OF RS. 2,88 , 186/ - . THE ASSESSEE'S ASSESSMENT WAS TAKEN UP FOR REGULAR ASSESSMEN T. DURING THE COURSE OF ASSESSMENT, AO FOUND THAT DURING THE YEAR, THE ASSESSEE HAS DEPOSITED RS. 11 LAKHS CASH IN HIS BANK ACCOUNT. IT WAS CONTEND ED BEFORE AO THAT ASSESSEE HAS RECEIVED A GIFT OF RS. 7,00,000 / - IN CASH FROM HIS M OTHER. THE GIFT WAS RECEIVED OUT OF PAST ACCUMULATED SAVINGS OF TH E MOTHER OF THE ASSESSEE AND ALSO OUT OF MATURITY PROCEEDS OF CERTAIN INVESTMENTS BY THE MOTHER. IT WAS CON TENTION OF ASSESSEE BEFORE AO THAT DURING THE YEAR THE ASSESSEE HAS ALSO EARNED AGRICULTURAL INCOME OF RS. 4 ,00,000/ - . ALL THESE RECEIPTS AGGREGATING TO RS.11,00,000/ - HAVE BEEN DEPOSITED BY THE ASSESSEE IN HIS BANK ACCOUNT WITH CENTRAL BANK OF INDIA, CHAL ISGAON, MAHARASHTRA. 3.1. DU RI NG THE COURSE OF THE SCRUTINY ASSESSMENT, THE ASSESSING OFFICER INQUIRED ABOUT THIS SUM OF RS. 11 , 00 , 000/ - DEPOSITED IN THE BANK. THE ASSESSEE FUR NISHED THE EXPLANATION AND ALSO FILED VARIOUS SUPPORTING DOCUMENTS IN CONNECTION WITH THE SAME. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED BY THE EXPLANATION OFFERED BY THE ASSESSEE . ACCORDINGLY THE ASSESSING OFFICER COMPLETED THE ASSESSMENT VIDE HIS ORDER DATED 23 RD MARCH, 201 5 PASSED U/S. 143(3) OF THE ACT MAKING VARIOUS ADDIT IONS / DISALLOWANCES. ONE OF THE ADDITION MADE BY THE ASSESSING OFFICER IS ADDITION OF RS. 11,00,000/ - MADE U/S. 69A OF THE 3 ITA NO. 4289/MUM/2018 SHRI RAVINDRA N DESHPANDE INCOME - TAX ACT, 1961 IN RESPECT OF THE AFORESAID TWO RECEIPTS BY THE ASSESSEE. 4. BY THE IMPUGNED ORDER, CIT(A) CONFIRMED THE ACTION OF THE AO WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. THE D. AR VEHEMENTLY ARGUED THAT A SUM OF RS.7 LAKHS WAS RECEIVED BY THE ASSESSEE FROM HIS MOTHER AS A GIFT. THIS AMOUNT WAS WITHDRAWN BY HIS MOTHER FROM HER BANK ACCOUNT WITH STATE BANK OF IND IA, ANDHRA BRANCH ON 06/01/2012 VIDE CHEQUE NO.864185 AND SAME WAS GIFTED TO THE ASSESSEE. ACCORDINGLY, AO WAS NOT JUSTIFIED IN ADDING THESE RS.7 LAKHS BY DECLINING ASSESSEES CLAIM OF GIFT FROM THE MOTHER. I FOUND THAT AN AMOUNT OF RS.7 LAKHS WAS RECEIVED BY ASSESSEE FROM HER MOTHER THROUGH A GIFT DECLARATION. THIS AMOUNT WAS WITHDRAWN BY MOTHER FORM HER BANK ACCOUNT ON 06/01/2012. MERELY BECAUSE AMOUNT WAS DEPOSITED BY ASSESSEE IN HIS BANK ACCOUNT ON 11/11/2012, THE AO DECLINED ASSESSEES CLAIM. I DO NOT FIND ANY JUSTIFICATION FOR AOS ACTION IN SO FAR AS I HAD GONE THROUGH THE BANK PASS BOOK OF THE MOTHER WHERE IT IS CLEAR THAT THERE WAS HAVING BALANCE OF RS.8,66,104.17 AS ON BEGINNING OF JANUARY 2012. THEREAFTER, THERE WAS MATURITY OF FIXED DEPOSIT AGGRE GATING TO RS.2,83,388/ - AS ON 06/01/2012 WHICH HAS ALSO BEEN CREDITED IN HER BANK ACCOUNT. OUT OF THIS TOTAL BALANCE OF 4 ITA NO. 4289/MUM/2018 SHRI RAVINDRA N DESHPANDE RS.11,49,492.17/ - . THE MOTHER HAS WITHDRAWN ON ACCOUNT OF RS.7 LAKHS AND GIFTED THE SAME TO THE ASSESSEE. MERELY BECAUSE MOTHER OF THE A SSESSEE WAS NOT FILING THE RETURN OF INCOME AND SINCE GIFT AMOUNT WAS RECEIVED IN CASH, THE AO HAS DECLINED ASSESSEES CLAIM. I FOUND THAT SINCE THE INCOME OF MOTHER WAS BELOW TAXABLE D URING THE YEAR UNDER CONSIDERATION THEREFORE, SHE DID NOT FILE HER INCO ME TAX RETURN. HOWEVER, RETURN FOR SUBSEQUENT YEARS WERE DULY FILED BY HER WHEN THE INCOME WAS TAXABLE . F ROM THE RECORD , I ALSO FOUND THAT FATHER OF THE ASSESSEE WAS CLASS - I OFFICER IN THE ACCOUNTS DEPARTMENT IN INDIAN NAVY AND AFTER HIS DEATH, THE MOTHER OF THE ASSESSEE HAS BEEN RECEIVING PENSION FROM THE GOVERNMENT WHICH HAS BEEN INVESTED IN VARIOUS FIXED DEPOSITS. THE MOTHER OF THE ASSESSEE WAS 86 YEARS OLD. THE AMOUNT WAS GIFTED BY MOTHER OUT OF NATURAL LOVE AND AFFECTION. UNDER THESE FACTS AND CIRCUMST ANCES, MERELY BECAUSE GIFT WAS GIVEN IN CASH, THE GENUINENESS OF GIFT CANNOT BE DOUBTED. ACCORDINGLY, I DIRECT THE AO TO DELETE THE ADDITION OF RS.7 LAKHS MADE BY HIM IN RESPECT OF GIFT RECEIVED FROM MOTHER. 5.1. AO HAS ALSO MADE AN ADDITION OF RS.4 LAKHS U/S.69A ON ACCOUNT OF AGRICULTURAL INCOME. IN THIS REGARD, I FOUND THAT THE ASSESSEE IS THE OWNER OF AN AGRICULTURAL LAND AT A SMALL VILLAGE CALLED KHADKI WHICH IS HAVING POPULATION OF LESS THAN 10000 PEOPLE. COPY OF THE AGREEMENT 5 ITA NO. 4289/MUM/2018 SHRI RAVINDRA N DESHPANDE DATED 18/12/1995 FOR PUR CHASE OF THE LAND BY THE ASSESSEE WAS FILED BEFORE THE LOWER AUTHORITIES. COPY OF PROPERTY CARD FOR THE ABOVE AGRICULTURAL LAND AND COPY OF EXTRACT OF 7/12 IN RESPECT OF THE LAND WERE ALSO FILED BEFORE AO. IT WAS ALSO CLAIMED THAT THE ASSESSEE HAD APPOINTE D CARE TAKER FOR THE ABOVE PROPERTY WHO LOOKS AFTER THE AGRICULTURAL ACTIVITIES OF THE ASSESSEE. THE ASSESSEE HAS BEEN EMPLOYED AT NIGERIA FOR PAST MANY YEARS AND COMES TO INDIA ONLY AFTER A GAP OF ABOUT 2 OR 3 YEARS. THE SALE PROCEEDS OF AGRICULTURAL PROD UCTS DURING THE ABSENCE OF ASSESSEE FROM INDIA ARE HANDED OVER TO THE A SSESSEE AT THE TIME OF HIS VISIT BY THE CARETAKER. 5.2. IT WAS ALSO CONTENDED THAT D URING THE MONTH OF FEBRUARY, 2011, THE AGRICULTURAL PRODUCE OF THE ASSESSEE HAVE BEEN SOLD FOR A TOTA L AMOUNT OF RS. 2,25,73 0 / - . A COPY OF THE SALE INVOICE DATED 25 - 2 - 2011 FOR THE SAME WAS FILED . HOWEVER, THIS AMOUNT WAS HANDED OVER TO THE ASSESSEE DURING HIS VISIT TO CHALISGAON IN JANUARY 2012. FURTHER IN THE FIRST WEEK OF JANUARY 2012, THE ASSESSEE HAS RECEIVED A LUMPSUM ADVANCE OF RS. 2,00,000/ - FOR SALE OF THE CROPS. THE FINAL AMOUNT OF SALES WAS DETERMINED ON CUTTING AND WEIGHING OF THE CROP ON 30 /01/ 2012 AT RS. 2,18,947/ - . A COPY OF THE SALES INVOICE DATED 30 /1/ 2012 WAS ALSO FILED . 6 ITA NO. 4289/MUM/2018 SHRI RAVINDRA N DESHPANDE 5.2. AS PER ABOVE, IT APPEARS THAT ASSESSEE HAS RECEIVED TOTAL CASH OF RS.4,25,730/ - OUT OF IT, AN AMOUNT OF RS.4 LAKHS WAS DEPOSITED BY ASSESSEE IN HIS BANK ACCOUNT WITH CENTRAL BANK OF INDIA, CHALISGAON ON 11/01/2012 . I T APPEARS THAT AO HAD NOT PROPERLY APPRECIATED ALL TH ESE EVIDENCES FILED BY THE ASSESSEE. IN ALL FAIRNESS, I RESTORE THE MATTER BACK TO THE FILE OF AO FOR DECIDING AFRESH AFTER GIVING DUE AND REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. ORDER P RONOUNCED IN THE OPEN COURT ON 13 / 11 / 2019. SD/ - (R.C.SHARMA) ACCOUNTANT MEMBER MUMBAI; DATED 13 / 11 /2019 KARUNA, SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3 . THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//