Appeal Details
Counselvise Citation
[2021] 107 COUNSELVISE.COM (IT) 2480 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
1 year(s) 3 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-10-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Next Hearing Date
28-10-2021
Assessment Year
2013-2014
Appeal Filed On
28-07-2020
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC (VIRTUAL COURT HEARING), BENCH KOLKATA BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER I.T.A. NO.460/KOL/2020 ASSESSMENT YEAR: 2013-14 SMT. BOBITA SAHA.....APPELLANT 1/13, RAJENDRA PRASAD COLONY, TOLLYGUNGE, KOLKATA-700033 [PAN: AUMPS3861P] VS. ITO, WARD-28(1), KOLKATA.......RESPONDENT APPEARANCES BY: SHRI ALOKE KR. GHOSH, ADVOCATE, APPEARED ON BEHALF OF THE APPELLANT. SHRI JAYANTA KHANRA, JCIT, SR. DR, APPEARED ON BEHALF OF THE RESPONDENT. DATE OF CONCLUDING THE HEARING : OCTOBER 28, 2021 DATE OF PRONOUNCING THE ORDER : OCTOBER 28, 2021 HEARING THROUGH VIDEO CONFERENCING ORDER THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 24.02.2020 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-8, KOLKATA [HEREINAFTER REFERRED TO AS CIT(A)] PASSED U/S 143(3) OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT). THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF APPEALS WAS ABSOLUTELY WRONG IN CONFIRMING THE ADDITION OF RS. 1396322/- WHICH ARISES OUT OF GIFT RECEIVED FROM HER OWN BROTHER AND TREATING THE SAME AS UNEXPLAINED CASH CREDIT WITHIN THE MEANING OF SECTION 68 OF THE ACT. THE ENTIRE FINDINGS AND OBSERVATIONS ARE BASED ON ARBITRARY ASSUMPTIONS AND THE ORDER SO PASSED IS UNREASONABLE AND BAD IN LAW. 2. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF APPEALS SHOULD HAVE APPRECIATED THAT UNDER THE TRANSFER OF PROPERTY ACT, THERE IS NO MANDATORY PROVISION FOR MAKING OUT A DEED OF GIFT FOR MOVEABLE PROPERTY SO AS TO MAKE THE GIFT VALID. THE ENTIRE FINDINGS ARE BASED ON WRONG ASSUMPTION AND THE ORDER SO PASSED IS UNREASONABLE AND BAD IN LAW. 3. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. APPELLATE AUTHORITY HAS ERRED IN IGNORING THE DOCUMENTARY EVIDENCES AND CONFIRMING THE IMPUGNED ADDITION OF I.T.A. NO.460/KOL/2020 ASSESSMENT YEAR: 2013-14 SMT. BOBITA SAHA 2 THE ENTIRE OF SUCH GIFT ON THE GROUND THAT THERE IS LACK OF PREPONDERANCE OF PROBABILITY OF SUCH GIFT TRANSACTION. 4. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE FINDINGS OF THE LD. COMMISSIONER OF APPEALS WHILE DISALLOWING THE ENTIRE CLAIM OF GIFT AS INCOME WITHIN THE MEANING OF SECTION 68 AS HAS BEEN OBSERVED BY THE LD. ASSESSING AUTHORITY IS BASED ON ABSOLUTE GUESS AND SURMISES AND ENTIRE ORDER SUFFERS FROM APPLICATION OF PROPER JUDICIAL MIND. 5. FOR THAT YOUR PETITIONER CRAVES LEAVE TO ADD, ALTER, MODIFY OR DELETE ANY OF THE GROUNDS AT THE TIME OF HEARING OF THE APPEAL OR BEFORE. 2. THOUGH THE REGISTRY HAS POINTED OUT THAT THE APPEAL IS TIME BARRED, HOWEVER, IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF MISCELLANEOUS APPLICATION NO.665 OF 2021 IN SMW(C) NO.3 OF 2020, THE PERIOD OF FILING APPEAL DURING THE COVID-19 PANDEMIC IS TO BE EXCLUDED FOR THE PURPOSE OF COUNTING THE LIMITATION PERIOD. IN VIEW OF THIS, APPEALS IS TREATED AS FILED WITHIN THE LIMITATION PERIOD. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE, SHRI ALOKE KR. GHOSH, HAS SUBMITTED THAT THE AMOUNT OF RS.1396322/- WAS TRANSFERRED BY THE BROTHER OF THE ASSESSEE IN HER ACCOUNT THROUGH BANKING CHANNEL. THAT THE CERTIFICATE OF FOREIGN REMITTANCE WAS ALSO GIVEN TO THE ASSESSING OFFICER AND FURTHER A DECLARATION FROM THE DONOR, MR. RANJAN BHOWMICK, WAS ALSO FURNISHED BEFORE THE ASSESSING OFFICER THAT THE AFORESAID AMOUNT WAS TRANSFERRED TO THE ASSESSEE BY HIM AS A GIFT TO HER SISTER. BOTH THE LOWER AUTHORITIES HAVE DECLINED TO ACCEPT THE ABOVE PLEA OF GIFT MADE BY THE ASSESSEE ON THE GROUND THAT THERE WAS NO GIFT DEED PRODUCED. I FIND THAT EXCEPT THE SAID PLEA OF THE GIFT DEED, NO FAULT OR DEFECT HAS BEEN POINTED OUT BY THE LOWER AUTHORITIES REGARDING THE EVIDENCES GIVEN BY THE ASSESSEE IN THIS RESPECT. FROM THE PERUSAL OF THE IMPUGNED ORDER OF THE ASSESSING OFFICER, IT CAN BE GATHERED THAT THE ASSESSING OFFICER HAS ADMITTED THE TRANSFER OF THE AMOUNT BY THE BROTHER OF THE ASSESSEE IN HER ACCOUNT, THE BANK MANAGER HAS ALSO GIVEN THE CERTIFICATE IN THIS RESPECT. THERE IS NO VIOLATION IN RESPECT OF ANY RULE OR LAW RELATING TO FOREIGN REMITTANCE IN THIS CASE. A DECLARATION FROM THE BROTHER/DONOR HAS ALSO BEEN FILED DECLARING THAT THE AFORESAID AMOUNT WAS TRANSFERRED ON ACCOUNT OF GIFT BY HIM TO HIS SISTER. UNDER THESE CIRCUMSTANCES, NOT ONLY THE IDENTITY AND THE CREDITWORTHINESS OF THE DONOR BUT ALSO THE GENUINENESS OF THE TRANSACTION HAS BEEN PROVED ON THE FILE. THERE IS NO MANDATORY REQUIREMENT OF I.T.A. NO.460/KOL/2020 ASSESSMENT YEAR: 2013-14 SMT. BOBITA SAHA 3 EXECUTION OF GIFT DEED FOR MAKING GIFT OF MOVEABLE PROPERTY UNDER THE PREVALENT LAWS. THE EVIDENCES BROUGHT ON THE FILE BY THE ASSESSEE ARE SUFFICIENT TO PROVE THAT THE AMOUNT WAS SENT BY HER BROTHER AS A GIFT TO THE ASSESSEE. MOREOVER, WHEN THE IDENTITY AND CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF THE TRANSACTION HAS BEEN PROVED, THERE IS NO JUSTIFICATION ON THE PART OF THE ASSESSING OFFICER TO TREAT THE SAID AMOUNT AS UNEXPLAINED CREDITS. IN VIEW OF THIS, THE IMPUGNED ORDER OF THE LD. CIT(A) IS NOT SUSTAINABLE IN THE EYES OF LAW AND THE SAME IS SET ASIDE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. KOLKATA, THE 28 TH OCTOBER, 2021. SD/- [SANJAY GARG] JUDICIAL MEMBER DATED: 28.10.2021. RS COPY OF THE ORDER FORWARDED TO: 1. SMT. BOBITA SAHA 2. ITO, WARD-28(1), KOLKATA 3. CIT(A)- SENT THROUGH EMAIL 4. CIT- , 5. CIT(DR), SENT THROUGH EMAIL //TRUE COPY// BY ORDER SR.PS/D.D.O, KOLKATA BENCHES
Other Referred Cases
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Laws Referred To
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Expert Summary
The Assessing Officer has admitted the transfer of the amount by the brother of the assessee to her account; the bank manager has also given a certificate in this respect. There is no violation with respect to any rule of law relating to foreign remittance in this case. A declaration from the brother/donor has also been filed declaring that the aforesaid amount was transferred on account of a gift by him to his sister. Under these circumstances, not only the identity and the creditworthiness of the donor but also the genuineness of the transaction have been proved on the file. There is no mandatory requirement for the execution of a gift deed for making a gift of movable property under the prevalent laws. The pieces of evidence brought to the file by the assessee are sufficient to prove that the amount was sent by her brother as a gift to the assessee. Moreover, when the identity and creditworthiness of the donor and the genuineness of the transaction have been proved, there is no justification on the part of the Assessing Officer to treat the said amount as unexplained credits.
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