DCIT, C.C.-XVIII, Kolkata, Kolkata V. Bimal Agarwal, Kolkata

ITA 437/KOL/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4970 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2013
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 07-09-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 14-03-2011
• Court: TRIBUNAL
• Department Lawyers: S P LAHIRI LD J
• Assessee Lawyers: SUJOY SEN LD; SSH S JHAJHARIA
• Keywords: Unexplained cash credit; Gift
• Section: 68

Judgement Text

, B , , INCOME TAX APPELLATE TRIBUNAL, BENCH- B KOLK ATA ( ) BEFORE . , ! SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER '#$ /AND 1 &' , ! SHRI GEORGE MATHAN, JUDICIAL MEMBER $( / ITA NO. 437/KOL/2011 ASSESSMENT YEAR : 2004-05 D.C.I.T, C.C-XVIII, KOLKATA - #' - -VERSUS -. BIMAL AGARWAL PAN:ACTPA7810M ( &* / APPELLANT ) ( +, &* / RESPONDENT ) $( / ITA NO. 438/KOL/2011 ASSESSMENT YEAR : 2004-05 D.C.I.T, C.C-XVIII, KOLKATA - #' - -VERSUS -. ARUN AGARWAL PAN: ACTPA 7808B ( &* / APPELLANT ) ( +,&* / RESPONDENT ) &* . ' /FOR THE APPELLANT / SHRI S.P. LAHIRI, LD. JCIT/DR +,&* .' / FOR THE RESPONDENT: / SHRI S/SH. S. JHAJHARIA & SUJOY SEN, LD.ARS /'#0 1 2 /DATE OF HEARING : 26-11-2013 34 1 2 /DATE OF PRONOUNCEMENT:28/11/2013 5 / ORDER 1 &' , ! SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO.437/KOL/2011 IS AN APPEAL FILED BY THE REVE NUE IN THE CASE OF SHRI BIMAL AGARWAL AGAINST THE ORDER OF THE LEARNED COMMISS IONER OF INCOME-TAX (APPEALS), CENTRAL-II, KOLKATA IN APPEAL NO. 206/CC-XVIII/CIT( A)C-II/09-10 DATED 24.12.2010 FOR THE ASSESSMENT YEAR 2004-05 AND ITA NO.438/KOL/201 1 IS AN APPEAL FILED BY THE REVENUE IN THE CASE OF SHRI ARUN AGARWAL AGAINST THE ORD ER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL-II, KOLKATA IN APPEAL NO. 207/CC-XVIII/CIT(A)C-II/09-10 DATED 24.12.2009 FOR THE ASSESSMENT YEAR 2004-05. 2. AS THE TWO ASSESSEES ARE BROTHERS AND THE ISSUES INVOLVED IN THESE APPEALS ARE IDENTICAL, THESE APPEALS ARE BEING DISPOSED OF BY T HIS COMMON ORDER. 3. SHRI S.P. LAHIRI, LEARNED JCIT/.DR REPRESENTED ON BEHALF OF THE REVENUE AND S/SHRI. JHAJHARIA & SUJOY SEN, LEARNED AUTHORISED REPRESENTATIVES REPRESENTED O N BEHALF OF THE ASSESSEE. 4. IN BOTH THE REVENUES APPEALS, THE REVENUE HAS R AISED THE FOLLOWING COMMON GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR 2004-05:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE , THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS OF THE CASE IN DELETING THE ADDITION OF RS. 15,00,000/- MADE ON ACCOUNT OF BOGU S GIFT BY HOLDING THAT THE GIFT TO THE SON OF THE ASSOCIATE O F ABOUT 27 YEARS, IMMEDIATELY AFTER HIS DEATH , AS A MARK OF GRATITUD E TOWARDS SUCH ASSOCIATE WAS A NORMAL GIFT, WITHOUT CONSIDERING TH AT NO SUCH ASSERTION WAS MADE BY THE DONOR AND NEITHER ANY GIF T WAS MADE IN THE PAST BY THE DONOR TO THE ASSESSEE NOR TO ANY OF HIS FAMILY MEMBERS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS OF THE CASE I N HOLDING THAT THE GIFT WAS A NORMAL GIFT, WITHOUT APPRECIATING THAT T HE ASSESSEE FAILED TO DISCHARGE THE ONUS OF PROVING THE IDENTITY OF TH E DONOR, THE RELATIONSHIP OF THE DONOR AND THE DONEE , OCCASION TO GIFT AND THE PREPONDERANCE OF PROBABILITY FOR MAKING SUCH GIFT. 3 THAT THE DEPARTMENT CRAVES LEAVE TO ADD, MODIFY OR ALTER ANY OF THE GROUND(S) OF APPEAL AND / OR ADDUCE ADDI TIONAL EVIDENCE AT THE TIME OF HEARING OF THE CASE. 5. IT WAS SUBMITTED BY THE LEARNED DR THAT BOTH THE TWO ASSESSEES ARE BROTHERS. THEY HAD RECEIVED AN AMOUNT OF RS.15,00,000/- EACH FROM ONE, SHRI PRAKASH BELANI, WHO WAS AN NRE. IT WAS THE SUBMISSION THAT BOTH THE ASSESSEES WER E UNABLE TO PROVE THE IDENTITY AND GENUINENESS OF THE GIFTS. THE ASSESSING OFFICER HA D TREATED THE SAME AS UNEXPLAINED INCOME OF THE ASSESSEES. IT WAS THE FURTHER SUBMISSION TH AT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS HELD THAT THE IDENTITY OF SHRI PRAKA SH BELANI, NRE IN DUBAI WAS ESTABLISHED AND THE TRANSACTION WAS GENUINE, CONSEQUENTLY, HE D ELETED THE ADDITIONS. IT WAS THE SUBMISSION THAT THE ORDERS OF THE LEARNED COMMISSIO NER OF INCOME-TAX (APPEALS) ON THIS ISSUE WERE LIABLE TO BE REVERSED. 6. IN REPLY, THE LEARNED AR FOR THE ASSESSEE DREW O UR ATTENTION TO THE COPY OF PASSPORT OF SHRI PRAKASH BELANI AVAILABLE AT PAGES 21 & 22 OF T HE PAPER BOOK. HE ALSO DREW OUR ATTENTION TO THE WRITTEN SUBMISSIONS SUBMITTED BEFORE THE LEA RNED COMMISSIONER OF INCOME-TAX (APPEALS), WHEREIN THE ADDRESS OF SHRI PRAKASH BELA NI ALONG WITH EMAIL ID HAVE BEEN PROVIDED. HE FURTHER DREW OUR ATTENTION TO PAGE 6 OF THE PAPER BOOK, WHICH IS A COPY OF LETTER, WHEREIN SHRI PRAKASH BELANI HAS CONFIRMED T HE GIFT. IT WAS THE SUBMISSION THAT BOTH THE ASSESSEES ARE SALARIED INDIVIDUALS. SHRI PRAKAS H WAS THEIR FATHERS (BIHARI AGARWAL) CLOSE FRIEND.. IT WAS THE SUBMISSION THAT SAID SHRI PRA KASH BELANI HAD GIVEN THE GIFTS TO BOTH THE ASSESSEES OUT OF LOVE AND AFFECTION AFTER DEATH O F THEIR FATHER (BIHARI AGARWAL). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE L EARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN PARA 6 OF HIS ORDER HAS EXTRACTED A S UNDER:- 6. I HAVE GONE THROUGH THE ASSESSMENT ORDER, SUBMI SSIONS OF APPELLANT AND ASSESSING OFFICER. THE MAIN REASON FOR TREATING THE RECEIPT OF GIFT OF RS 15 LAKH FROM SHRI PRAKASH BELANI, AN NRE IN D UBAI, AS UNEXPLAINED CASH CREDIT BY THE ASSESSING OFFICER WA S THAT THE PASSPORT OF SHRI PRAKASH BELANI WAS NOT SUBMITTED DURING THE ASSESSMENT PROCEEDINGS AND THEREFORE IDENTITY OF SHRI PRAKASH BELANI WAS NOT DETERMINED ACCORDING TO ASSESSING OFFICER. I FIND T HAT IN SPITE OF AVAILABILITY OF PASSPORT OF SHRI PRAKASH BELANI DUR ING THE APPELLATE PROCEEDINGS, WHERE THE LOCAL KOLKATA ADDRESS OF 1-B , MINTO PARK, CALCUTTA- 700027 IS GIVEN, ASSESSING OFFICER DID NO T FIND ANYTHING ADVERSE ABOUT THE IDENTITY OR EXISTENCE OF SHRI PRA KASH BELANI FROM THIS ADDRESS. THE AUTHENTICITY OF PASSPORT COULD BE VERI FIED FROM CONSULATE GENERAL OF INDIA AT DUBAI (UAE). THE EMAIL ID AND A DDRESS OF SHRI PRAKASH BELANI IN DUBAI WAS GIVEN BY APPELLANT TO A SSESSING OFFICER DURING REMAND PROCEEDING AND ASSESSING OFFICER HAS NOT SUBMITTED ANY ARGUMENT OR EVIDENCE AGAINST SUCH DETAILS SUBMITTED BY THE APPELLANT BEFORE HIM. I THEREFORE FIND THAT APPELLANT HAS SUB MITTED SUFFICIENT MATERIAL TO ESTABLISH THE IDENTITY OF THE DONOR SHR I PRAKASH BELANI, WHICH THE ASSESSING OFFICER WAS NOT ABLE TO REBUT. SECONDLY, THE FATHER OF APPELLANT AND SHRI PRAKASH BELANI HAD KNOWN EACH OTHER FOR 27 YEARS BEFORE FATHER OF APPELLANT DIED ON 06.01. 200 3. THE GIFT OF RS. 15 LAKH, AS PER THE FACTS NARRATED IN THE ASSESSMENT O RDER, WAS GIVEN BY SHRI PRAKASH BELANI TO APPELLANT OUT OF HIS GRATITU DE TOWARDS THE JUST DEMISED FATHER OF THE APPELLANT WHO HAD HELPED HIM IN AN ELECTION IN OHIO, AMERICA IN I 97678. SHRI PRAKASH BELANI HAS NRE ACCOUNT NO 28006 IN CANARA BANK,. BRABOURNE ROAD. CALCUTTA AN D HE DREW A CHEQUE OF RS 15 LAKH OF THIS BANK ACCOUNT TO GIFT T O THE APPELLANT. I FIND THAT GIFT TO THE SON OF AN ASSOCIATE OF ABOUT 27 YE ARS, IMMEDIATELY AFTER HIS DEATH., AS A MARK OF GRATITUDE TOWARDS SUCH AS SOCIATE, IS A NORMAL GIFT. I THEREFORE HOLD THAT THE AMOUNT OF RS 15,00, 000/- RECEIVED BY APPELLANT FROM SHRI PRAKASH BELANI IS A GIFT WHICH IS SUFFICIENTLY SUPPORTED BY VARIOUS DOCUMENTS AND CIRCUMSTANCES IN RESPECT OF GENUINENESS OF THE TRANSACTION AND THE IDENTITY OF THE DONOR. THE ONUS WAS ON THE ASSESSING OFFICER TO REBUT THE CLAIM OF APPELLANT BY COLLECTING EVIDENCES ON THE BASIS OF INFORMATION SU BMITTED BY THE APPELLANT IN RESPECT OF BANK ACCOUNT OF DONOR, PASS PORT OF DONOR, ADDRESS IN KOLKATA AS WELL AS IN DUBAI OF THE DONOR , AND THE ASSESSING OFFICER FAILED TO REBUT THE CLAIM BY NOT COLLECTING ANY ADVERSE EVIDENCE. I THEREFORE HOLD THAT THE GIFT OF RS 15 LAKH RECEIV ED BY APPELLANT FROM SHRI PRAKASH BELANI IS A GIFT AND CANNOT BE CONSIDE RED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T.ACT. I DIRECT THE ASS ESSING OFFICER TO DELETE THE ADDITION OF RS 15 LAKH MADE BY HIM TO THE TOTAL INCOME AND REDUCE THE TOTAL INCOME ACCORDINGLY. 7.1 A PERUSAL OF THE ABOVE, IT CLEARLY SHOWS THAT T HE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS TAKEN INTO CONSIDERATION THE DETAI LS, WHICH HAVE BEEN PROVIDED BY BOTH THE ASSESSEES. THE SAME HAS ALSO BEEN PUT TO THE ASSESS ING OFFICER IN THE COURSE OF REMAND PROCEEDINGS. IT IS NOTICED THAT NO ADVERSE INFORMA TION HAS BEEN RECEIVED IN RESPECT OF GIFTS RECEIVED BY BOTH THE ASSESSEES AND EVEN BEFORE US T HE REVENUE HAS NOT BEEN ABLE TO DISLODGE THE FINDING OF THE LEARNED COMMISSIONER OF INCOME-T AX (APPEALS). IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE FINDING OF THE LEARNED COM MISSIONER OF INCOME-TAX (APPEALS) ON THIS ISSUE IS ON A RIGHT FOOTING AND DOES NOT CALL FOR A NY INTERFERENCE. WE UPHOLD THE SAME.. 8. IN THE RESULT, BOTH THE REVENUES APPEALS STAND DISMISSED AS STATED ABOVE. 5 / 6 /' 7 8 THIS ORDER IS PRONOUNCED IN OPEN COURT ON 28/11/20 13 SD/- SD/- ( . , ! ) ( ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ) ( 1 &' , ! ) (GEORGE MATHAN, JUDICIAL MEMBER ) ( (( ( 2 2 2 2 ) )) ) DATE 28/11/2013 *PP/SPS 5 1 +..9 :94; / COPY OF THE ORDER FORWARDED TO: 1. . &* / THE APPELLANT : D.C.I.T, C.C XVIII, 5 TH FL., PODDAR COURT 18 RABINDRA SARANI, KOL-1 2 +,&* / THE RESPONDENT- SHRI BIMAL AGARWAL/ SHRI ARUN A GARWAL 17 GANESH CH. AVENUE, KOL-13. 3 4. . .5' / THE CIT .5' ()/ THE CIT(A) 5 . #>.7 +.' / DR, KOLKATA BENCH 6 . GUARD FILE . ,9 +./ TRUE COPY, 5'// BY ORDER, $ /ASSTT REGISTRAR