Praveen Murarka, Kolkata V. DCIT, CIR-35, KOLKATA, Kolkata

ITA 448/KOL/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3176 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 18-03-2014
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: VARSHA JALAN
• Keywords: Unexplained cash credit; Gift; Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM ] I.T.A NO. 448/KOL/201 4 ASSESSMENT YEAR : 2006-0 7 PRAVEEN MURARKA -VS.- D.C.I.T., CIRCLE- 35, KOLKATA KOLKATA [PAN : AEAPM6794B) (APPELLANT) (RESPONDENT) FOR THE APPELLANT : MISS VARSHA JALAN, ADVOCATE FOR THE RESPONDENT : SMT. RANU BISWAS, JCIT, SR.DR DATE OF HEARING : 12.01.2016. DATE OF PRONOUNCEMENT : 03.02.2016. ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 01.11.2013 OF CIT(A)- XX, KOLKATA, RELATING TO AY 2006-07. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS FOLLOWS :- 1. THAT THE LD CIT(A) - XX, KOLKATA ERRED IN FACT AS WELL AS IN LAW IN CONFIRMING THE ADDITION OF RS. 10,00,000/- MADE BY THE LD AO ON AC COUNT OF GIFT OF SHARES RECEIVED BY THE APPELLANT FROM HIS SON ON THE ALLEGED GROUNDS STATE D IN ASSESSMENT ORDER DATED 31/12/2008. 2. THAT THE LD CIT(A) - XX, KOLKATA ERRED IN FACT A S WELL AS IN LAW IN CONFIRMING THE ADDITION OF RS. 12,500/- MADE BY THE LD AO ON ACCOU NT OF CASH GIFTS RECEIVED BY THE APPELLANT FROM HIS MOTHER ON VARIOUS OCCASIONS ON T HE ALLEGED GROUNDS STATED IN ASSESSMENT ORDER DATED 31/12/2008 3. THAT ALTERNATIVELY, THE SAID ADDITION OF TOTALIN G RS. 10.12,500/- IS NO MORE SUSTAINABLE IN VIEW OF THE FRESH ASSESSMENT OF INCOME BEING MAD E IN RESPECT OF THE APPELLANT UNDER SECTION I53C/143(3) DATED 28/02/2014 OF THE INCOME TAX ACT 1961 WHEREIN IN SPITE OF THE ISSUE OF RECEIPT OF SAID GIFT BEING CONSIDERED DURI NG THE COURSE OF THE SAID ASSESSMENT PROCEEDINGS, NO SUCH ADDITIONS WERE MADE BY THE LD AO AND AS SUCH THE SAID ADDITION OF RS. 10,12,500/- MADE IN THE ORIGINAL ASSESSMENT BE DECLARED INFRUCTUOUS. 4. THAT THE APPELLANT CRAVE TO ADD, MODIFY, AMEND A ND/OR SUBSTITUTE ANY OTHER GROUND BEFORE HEARING OF THE APPEAL. 2 ITA NO.448/KOL/2014 PRAVEEN MURARKA A.YR.2006-07 2 3. THE ASSESSEE IS AN INDIVIDUAL. HE CARRIED ON BU SINESS OF STOCK AND SHARE BROKING AND TRADING IN SHARES AND SECURITIES. IN THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTICED THAT THE ASSESSEE HAD TO SHOW RECEIPT OF GI FTS OF RS.12,500/- FROM HIS MOTHER AND ANOTHER GIFT OF RS.10,00 000/-FROM HIS SON BY NAME MR.AKSHAY MURARKA. THE GIFT BY THE ASSESSEES SON WAS IN THE FORM OF 1 LAKH EQUITY SHARES OF RS.10/- EACH OF A COMPANY BY NAME M/S. CHAMBAL FERTILISER & CHEMICALS LTD. TH E AFORESAID SUM WERE SHOWN IN THE CAPITAL ACCOUNT OF THE ASSESSEE AS ADDITION TO THE CAPITAL. 4. BEFORE THE AO THE ASSESSEE COULD NOT PRODUCE EV IDENCES WITH REGARD TO THE CAPACITY OF THE DONORS FOR MAKING THE AFORESAID GIFTS. AS F AR AS THE GIFT OF RS.12,500/- RECEIVED BY THE ASSESSEE FROM HIS MOTHER IS CONCERNED, THE A SSESSEE SUBMITTED THAT HIS MOTHER PASSED AWAY AND THEREFORE HE WAS NOT IN A POSITION TO PROVE THE CAPACITY OF HIS MOTHER WHO GAVE THE AFORESAID GIFT LIKE FILING OF BALANCE SHEET AND CASH FLOW STATEMENT ETC. IN SUCH CIRCUMSTANCES THE AO TREATED THE AFORESAID GIF TS AS UNEXPLAINED AND ADDED A SUM OF RS.10,12,500/- TO THE TOTAL INCOME OF THE ASSESS EE AS UNEXPLAINED CASH CREDIT. THE CIT(A) CONFIRMED THE ORDER OF THE AO. 4. THE LEARNED COUNSEL FOR THE ASSESSEE MADE A SUBM ISSION IN RESPECT OF GROUND NOS 1 AND 2 BEFORE US. SHE FILED AN APPLICATION FOR ADM ISSION OF THE FOLLOWING ADDITIONAL EVIDENCES :- A. COPY OF FINAL ACCOUNTS FOR THE A.Y.: 2006-07 OF AKSHAY MAURARKA B. COPY OF FINAL ACCOUNTS FOR THE AY.: 1993-94 O F MASTER AKSHAY MAURARKA C. DETAILS OF ALLOTMENT OF SHARES OF CHAMBAL FER TILIZERS AND CHEMICALS LTD. IN THE NAME OF MASTER AKSHAY MURARKA D. LETTER FROM ZUARI INVESTMENTS LTD FOR THE CHAN GE IN STATUS OF AKSHAY MURARKA FROM MINOR TO MAJOR PURSUANT TO SHARES OF CHAMBAL FERTIL IZERS AND CHEMICALS LTD. E. SURRRENDER OF ORIGINAL CERTIFICATE OF AKSHAY M URARKA FOR DEMATERIALIZATION F GIFT DEED G. CERTIFICATE OF TRANSFER OF SHARES THROUGH OFF-MA RKET FROM AKSHAY MURARKA TO THE ASSESSEE. H. CONFIRMATION FROM EUREKA STOCK & BROKING SERVIC ES LTD IN REGARD TO SHARES RECEIVED FROM OFF-MARKET 3 ITA NO.448/KOL/2014 PRAVEEN MURARKA A.YR.2006-07 3 I. COPY OF ACKNOWLEDGMENT OF ITR AND FINAL ACCOUNT S FOR THE A.Y.: 1993-94 OF THE ASSESSEE. 4.1. THE PRAYER MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE WAS TO ADMIT THE AFORESAID DOCUMENTS AS ADDITIONAL EVIDENCES UNDER R ULE 29 OF THE APPELLATE TRIBUNAL RULES. IT WAS ALSO SUBMITTED THAT THE ADDITIONAL EV IDENCES COULD NOT BE FILED BEFORE THE LOWER AUTHORITIES SINCE THE SAME WERE NOT AVAILABLE WITH THE ASSESSEE. IT WAS SUBMITTED THAT THE ASSESSEE AND HIS SON WERE NOT IN TALKING T ERMS. WITH THE INTERVENTION OF THE RELATIVES AND FRIENDS AND CONSEQUENT TO THE MEDIATI ON BETWEEN THE ASSESSEE AND HIS SON, THE ASSESSEE COULD GET THE AFORESAID DOCUMENTS FROM HIS SON WHICH IS NOW SOUGHT TO BE FILED AS ADDITIONAL EVIDENCES BEFORE THE TRIBUNAL. THE LEARNED DR OPPOSED THE PRAYER OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE A ND RELIED ON THE ORDER OF THE CIT(A). 5. I HAVE HEARD THE SUBMISSIONS OF THE LEARNED COUN SEL FOR THE ASSESSEE AND I AM OF THE VIEW THAT THE AFORESAID EVIDENCE NOW PLACED BEF ORE THE TRIBUNAL GOES TO THE ROOT OF THE MATTER AND ARE NECESSARY FOR DECIDING THE DISPU TE INVOLVED IN THIS APPEAL. THE ADDITIONAL EVIDENCE IS THEREFORE ADMITTED FOR CONSI DERATION AS ADDITIONAL EVIDENCE. 5.1. SINCE THE ADDITIONAL EVIDENCES NOW ADMITTED BY THE TRIBUNAL REQUIRES CONSIDERATION BY THE AO, I AM OF THE VIEW THAT TH E ISSUE RAISED BY THE ASSESSEE IN GROUND NO.1 HAS TO BE REMANDED TO THE AO FOR FRESH CONSIDERATION. 5.2. AS FAR AS THE ISSUE RAISED IN GROUND NO.2 IS CONCERNED I AM OF THE VIEW THAT KEEPING IN MIND THE SMALLNESS OF THE AMOUNT INVOLVED AND TA KING NOTE OF THE FACT THAT THE GIFTS FROM NEAR RELATIVES LIKE MOTHER IS QUITE NATURAL, I DELETE THE ADDITION OF RS.12,500/- MADE U/S 68 OF THE ACT. THE OTHER GROUNDS WERE NOT ARGUED AND HENCE NOT ADJUDICATED. AO SHALL GIVE ADEQUATE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE IN THE SET ASIDE PROCEEDINGS. 4 ITA NO.448/KOL/2014 PRAVEEN MURARKA A.YR.2006-07 4 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 03.02.2016. SD/- [ N.V.VASUDEVAN ] JUDICIAL MEMBER DATED : 03.02.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.PRAVEEN MURARKA, 1/C, MANDEVILLA GARDENS, BALLYGU NJE, KOLKATA-700019. 2. D.C.I.T., CIRCLE-35, KOLKATA. 3. CIT(A)-XX, KOLKATA 4. CIT KOLKAT A. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES