Uma Shankar Agarwal, Kolkata V. DCIT, Circle - 51, Kolkata, Kolkata

ITA 449/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83123 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 22-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AJOY KR SINGH PE
• Assessee Lawyers: A K TIBREWAL
• Keywords: Gift
• Section: 131; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI SHAMIM YAHYA, A.M. & SHRI GEORGE MATHA N, J.M. ] I.T.A. NO.449 & 450/KOL/2012 ASSESSMENT YEARS :2004-05 & 2005-06 UMA SANKAR AGARWAL, SALT LAKE (PAN:ACLPA 0049C) .. ( APPELLANT ) -VS- DCIT, CIRCLE-51, KOLKATA .. ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 01.09.2014 DATE OF PRONOUNCING THE ORDER : 05.09.2014 APPEARANCES : FOR THE APPELLANTS : SHRI A.K. TIBREWAL, FCA : FOR THE RESPONDENT : SHRI AJOY KR.SINGH , CIT(DR), O R D E R PER SHRI GEORGE MATHAN,J.M. ITA NO.449/KOL/2012 IS AN APPEAL FILED BY THE ASSES SEE AGAINST THE ORDER OF THE LD. CIT(A)-XXXII, KOLKATA IN APPEAL NO.160/CIT( A)-XXXII/09-10/CIR- 51/KOL. DATED 28 TH NOVEMBER, 2011 FOR THE ASSESSMENT YEAR 2004-05. IT A NO.450/KOL/2012 IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-XXXII, KOLKATA IN APPEAL NO. 161/CIT(A)-XXXI I/09-10/CIR-51/KOL. DATED 28 TH NOVEMBER, 2011 FOR THE ASSESSMENT YEAR 2005-06. AS BOTH THE APPEALS PERTAIN TO THE SAME ASSESSEE, HENCE THEY ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. SHRI A.K. TIBREWAL, FCA REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI AJOY KR. SINGH, CIT(DR) REPRESENTED ON BEHALF OF TH E REVENUE. 3. IN ITA NO.449/KOL/2012, FOUR ISSUES HAVE BEEN RA ISED BY THE ASSESSEE. REGARDING GROUND NO.1, WHICH WAS AGAINST THE REOPEN ING OF THE ASSESSMENT, NO SUBMISSIONS HAVE BEEN PLACED BY THE LD. A.R., CONSE QUENTLY, THE SAME STAND DISMISSED. 2 ITA NO.449 & 450/KOL/2012 UMA SHANKAR AGARWAL ASSESSMENT YEARS: 2004-05 & 2005-06 4. IN RESPECT OF GROUND NO.2, IT WAS A SUBMISSION T HAT THE ASSESSEES MINOR SON HAD RECEIVED GIFTS TO THE EXTENT OF RS.7,25,000/- F ROM FOUR PERSONS. IT WAS A SUBMISSION THAT DURING THE ASSESSMENT, THE AO HAD I SSUED SUMMONS UNDER SECTION 131 TO THE FOUR DONORS. IT WAS A SUBMISSION THAT AL L THE FOUR DONORS HAD APPEARED AND HAD CONFIRMED GIVING OF THE GIFTS TO THE ASSESS EES MINOR SON. IT WAS A SUBMISSION THAT THE LD. AO DID NOT ACCEPT THE CLAIM OF GIFT AND HAD MADE THE ADDITION ON ACCOUNT OF RECEIPT OF GIFTS AS DEEMED I NCOME OF THE ASSESSEE ON THE GROUND THAT CREDITWORTHINESS OF THE THREE DONORS WE RE NOT PROVED AND IN RESPECT OF SMT. SANTHALIA, THERE WAS NO REASON FOR HER TO GIVE THE GIFT. IT WAS A SUBMISSION THAT ON APPEAL, THE LD. CIT(A) HAD CONFIRMED THE OR DER OF THE AO. IT WAS A SUBMISSION THAT THE DONORS HAVING APPEARED BEFORE T HE AO AND HAVING CONFIRMED THE TRANSACTION, NO ADDITION WAS CALLED FOR IN THE HANDS OF THE ASSESSEE. 5. IN REPLY, THE LD. DR VEHEMENTLY SUPPORTED THE OR DERS OF THE AO AND THE CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE DONORS HAD APPEARED IN RESPONSE TO THE NOTICE UNDER SECTION 131 AND CONFIRMED GIVING GIFTS TO THE ASSES SEES MINOR SON. THIS BEING SO AS ALSO ON ACCOUNT OF THE FACT THAT THE GIFTS HAD B EEN GIVEN BY A/C. PAYEE CHEQUES AND THE AMOUNT OF GIFTS BEING NOMINAL AND IN VIEW O F THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SR I SUNIL KUMAR ROY VS- DCIT IN ITA NO.1879.KOL/2010 DATED 17.07.2014, THE ADDITION , AS MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IN RESPECT OF GIFTS REC EIVED BY THE ASSESSEES MINOR SON FOR THE RELEVANT ASSESSMENT YEAR FROM THE FOUR DONORS, STANDS DELETED. 7. IN RESPECT OF GROUND NO.3, THE ISSUE WAS AGAINST THE TRAVELING EXPENSES INCURRED BY THE ASSESSEE ON TOUR TO BANGKOK ALLEGED LY FOR THE PURPOSE OF BUSINESS. THE LD. A.R. DID NOT MAKE ANY SERIOUS ARGUMENT IN R ESPECT OF THE SAID EXPENSES, WHICH HAS BEEN DISALLOWED BY THE AO. CONSEQUENTLY, THE GROUND NO.3 OF THE ASSESSEES APPEAL STANDS DISMISSED. 3 ITA NO.449 & 450/KOL/2012 UMA SHANKAR AGARWAL ASSESSMENT YEARS: 2004-05 & 2005-06 8. IN RESPECT OF GROUND NO.4, IT WAS AGAINST THE AC TION OF THE LD. CIT(A) IN CONFIRMING THE STATUTORY DEDUCTION UNDER SECTION 24 (A) OF THE ACT IN RESPECT OF RENTAL INCOME ASSESSABLE UNDER THE HEAD INCOME FRO M HOUSE PROPERTY. IT WAS FAIRLY AGREED BY BOTH THE SIDES THAT THE ISSUE WAS LIABLE TO THE RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE AO HAS DENIED THE BENEFIT OF DEDUCTION UNDER SECTION 24(A) ON THE GROUND THAT THE ASSESSEE HAS NOT CLAIMED THE BENEFIT IN THE RETURN FILED UND ER SECTION 148 AND ON THE GROUND THAT THE RENT FROM LAND IS NOT ELIGIBLE FOR DEDUCTI ON UNDER SECTION 24(A), THIS ISSUE IS RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATI ON. IT IS NOTICED THAT THE LD. CIT(A) HAS ALSO NOT ADJUDICATED ON THE ISSUE. IN THESE CIR CUMSTANCES, THIS ISSUE IS RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. IF THE A SSESSEE IS ENTITLED TO THE BENEFIT OF DEDUCTION AND COMPLIES WITH THE STATUTORY REQUIREME NT, THE ASSESSEE SHOULD BE GRANTED BENEFIT OF THE DEDUCTION. 10. ITA NO.450/KOL/2012 INVOLVES FOUR GROUNDS. GROU ND NO.1 IS AGAINST THE ASSESSMENT PROCEEDINGS AND IS A CHALLENGE AGAINST T HE INVOCATION OF THE PROVISIONS OF SECTION 263. AS THE IMPUGNED ASSESSMENT ORDER IS CONSEQUENTIAL ORDER PASSED IN CONSEQUENCE TO THE ORDER UNDER SECTION 263, THE CHA LLENGE TO THE ORDER PASSED UNDER SECTION 263 CANNOT BE DONE IN THIS APPEAL. CO NSEQUENTLY, GROUND NO.1 OF THE ASSESSEES APPEAL STANDS DISMISSED. 11. GROUND NO.2 IS AGAINST THE ACTION OF THE LD. CI T(A) IN CONFIRMING THE ADDITION OF RS.7,95,000/- REPRESENTING GIFTS RECEIV ED BY THE ASSESSEES MINOR SON FROM THREE DONORS. THE SAID GROUND IS SIMILAR TO TH E GROUND NO.2 OF THE ASSESSEES APPEAL IN ITA NO.449/KOL/2012. OUR FINDING THERE AP PLIES TO THIS GROUND ALSO. CONSEQUENTLY, GROUND NO.2 OF THE ASSESSEES APPEAL STANDS ALLOWED. 12. GROUND NOS.3 AND 4 ARE AGAINST THE NON-ALLOWANC E OF THE STATUTORY DEDUCTION UNDER SECTION 24(B) AND 24(A). IT IS SIMILAR TO THE GROUND NO.4 OF THE ASSESSEES 4 ITA NO.449 & 450/KOL/2012 UMA SHANKAR AGARWAL ASSESSMENT YEARS: 2004-05 & 2005-06 APPEAL IN ITA NO.449/KOL/2012. AS WE HAVE ALREADY R ESTORED THIS ISSUE TO THE FILE OF THE AO IN ITA NO.449/KOL/2012, WITH IDENTICAL DI RECTION, THESE ISSUES ARE ALSO RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. 13. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN THE COURT ON 5 TH SEPTEMBER, 2014. SD/- SD/- (SHAMIM YAHYA) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 5 TH SEPTEMBER, 2014 COPY OF THE ORDER FORWARDED TO: 1. UMA SANKAR AGARWAL,1B-83, SALT LAKE CITY, SECTOR-II I, KOLKATA 700 106 2 DCIT, CIRCLE-51, KOLKATA 3. THE CIT(A), 4. CIT, 5. DR, TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA TALUKDAR(SR.P.S.) 5 ITA NO.449 & 450/KOL/2012 UMA SHANKAR AGARWAL ASSESSMENT YEARS: 2004-05 & 2005-06