Ashish Kr. Agarwal, Siliguri V. ITO, Ward - 1(1), Siliguri, Siliguri

ITA 542/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7977 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-03-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 13-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - C , KOLKATA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . . , , SHRI B.C.MEENA, ACCOUNTAN T MEMBER. /ITA NO. 542/KOL/2009 / ASSESSMENT YEAR 2004 - 05 ASHISH KR. AGARWAL, C/O. SHIV IRON CO., CHAYANPARA ROY COLONY, EASTERN BY PAS ROAD, P.O.SILIGURI (WEST BENGAL) AEVPA 7137 H - - - VERSUS - . INCOME - TAX OFFICER, WARD 1 (1),SILIGURI. ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT: / SHRI V.K.AGARWAL, AR / FOR THE RESPONDENT : / S MT. JYOTI KUMARI, DR / ORDER . . , SHRI B .R.MITTAL, JUDICIAL MEMBER. THE ASSESSEE HAS FILED THIS APPEAL AGAINST ORDER DT. 16.1.2009 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESSMENT YEAR 2004 - 05 DISPUTING CO NFIRMATION OF THE ADDITION OF RS.1,02, 000 MADE U/S.68 DISBELIEVING TWO GIFT S OF RS.51,000 EACH FROM S H RI JAGDISH KUMAR MITTAL AND SMT. SHANTI DEVI GUPTA. 2 . DURING THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE HAS SHOWN TO HAVE RECEIVED GIFTS OF RS.51,000 EACH FROM SHRIJAGDISH KUMAR MITTAL AND SMT. SHANTI DEVI GUPTA. THE ASSESSING OFFICER OBSERVED THAT THESE TWO DONRORS ARE NOT RELATED TO THE ASSESSEE , SO THE REASON FOR MAKING SUCH GIFTS OUT OF LOVE AND AFFECTION DOES NOT ARISE. FURTHER, HE OBSERVED THAT DONOR SHRIJAGDISH KUMAR MITTAL FAILED TO GIVE DETAILS OF HIS SOURCE OF INCOME AND SMT. SHANTI DEVI GUPTA WAS NOT PRODUCED BY THE ASSESSEE. THEREFORE, O N THE GROUND THAT CREDITWORTHINESS OF THE DONORS AND GENUINENESS OF THE TRANSACTIONS WERE NOT PROVED BY THE ASSESSEE, THE 2 /ITA NO. 542/KOL/2009 ASSESSING OFFICER MADE THE IMPUGNED ADDITION AND T HE LEARNED CIT(A) HAS CONFIRMED THE SAME . 3 . BEFORE US, T HE LEARNED AR OF THE ASSESSEE FURNISHED THE COPIES OF RETURNS ALONG WITH COPIES OF STATEMENT OF INCOME IN RESPECT OF BOTH THE DONORS IN ORDER TO PROVE THE CREDITWORTHINESS, WHICH ARE PLACED AT P AGE S 4 TO 7 OF THE PAPER BOOK AND CONTENDED THAT GIFTS FROM BOTH THE DONORS WERE RECEIVED BY THE ASSESSEE BY ACCOUNT PAYEE CHEQUES. SINCE THE ASSESSEE HAS ESTABLISHED THE IDENTITY AND CREDITWORTHINESS OF THE DONORS AND ALSO THE GENUINENESS OF THE TRANSACTION S, THE IMPUGNED ADDITION MADE U/S.68 DISBELIEVING THE CLAIM OF GIFT IS NOT JUSTIFIED. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND CONTENDED THAT THE SOURCE OF INCOME OF THE DONORS ARE NOT VERIFIABLE THAT AC TUALLY THEY WERE EARNING INCOME AS SHOWN ; THAT THE ASSESSEE FAILED TO PRODUCE ONE OF THE DONOR S, NAMELY, SMT. SHANTI DEVI GUPTA. LEARNED DR SHE PLEADED THAT ONLY FILING OF INCOME - TAX RETURNS CANNOT PROVE THE GENUINENESS OF THE GIFT S NOR IT AMOUNTS TO DISCH ARGING THE ONUS CAST ON THE ASSESSEE. IN SUPPORT OF HER PLEADINGS, SHE RELIED ON THE DECISION IN THE CASE OF CIT. V. P.MOHANAKALA [291 ITR 278 (SC)], THE DECISION OF THE ITAT, KOLKATA IN ITA NO.1858/KOL/2007 DT.9.10.2009 IN THE CASE OF KAMAL LOCHAN MISHRA (COPY PLACED ON RECORD). SHE SUBMITTED THAT S INCE THE ASSESSEE HAS FAILED TO ESTABLISH THE CREDITWORTHINESS OF THE DONORS, THE IMPUGNED ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT(A) IS JUSTIFIED. 4 . WE HAVE CAREFULLY CONSIDER ED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND ALSO THE MATERIAL PLACED ON RECORD. 5. THERE IS NO DISPUTE TO THE FACT THAT BOTH THE ABOVE NAMED ALLEGED DONORS ARE NOT RELATIVE TO THE ASSESSEE. THE ASSES SEE HAS STATED THAT BOTH THE ABOVE NAMED PERSONS HAVE GIVEN GIFT OF RS.51,000 EACH OUT OF LOVE AND AFFECTION BY ACCOUNT PAYEE CHEQUES. ON PERUSAL OF THE PB FILED BY THE ASSESSEE, WE AGREE THAT SHRI 3 /ITA NO. 542/KOL/2009 JAGDISH KUMAR MITTAL AND SMT. SHANTI DEVI GUPTA ARE ASSESS ED TO TAX. HOWEVER, ON PERUSAL OF THE STATEMENT OF INCOME, EXPENDITURE AND CAPITAL FUND OF SHRI JAGDISH KUMAR MITTAL, PLACED AT PAGE 5 OF THE PB, WE OBSERVE THAT IN THE ASSESSMENT YEAR UNDER CONSIDERATION HIS INCOME WAS OF RS.52,500 AND THERE WAS AN OPENI NG CAPITAL OF RS.2,88,237. FURTHER HE APPEARED BEFORE THE ASSESSING OFFICER AND CONFIRMED THE GIFT GIVEN TO THE ASSESSEE BY ACCOUNT PAYEE CHEQUE. CONSIDERING THE ABOVE FACT S , WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS DISCHARGED THE BURDEN THAT LA Y UPON HIM BY NOT ONLY PROVING THE IDENTITY OF THE DONOR, GENUINENESS OF THE TRANSACTION BUT ALSO THE CREDITWORTHINESS OF THE SAID DONOR SHRI JAGDISH KUMAR MITTAL. THEREFORE, WE HOLD THAT THE GIFT OF RS.51,000 FROM SHRI JAGDISH KUMAR MITTAL IS HELD AS GENU INE. 6. IN RESPECT OF THE ALLEGED GIFT FROM SMT. SHANTI DEVI GUPTA, WE OBSERVE FROM HER STATEMENT OF INCOME, EXPENDITURE AND CAPITAL F UND, PLACED AT PAGE 7 OF THE PB THAT HER INCOME WAS RS.52,500. IT IS OBSERVED THAT IN THE ASSESSMENT YEAR UNDER CONSIDERA TION, SHE IS STATED TO HAVE GIVEN GIFT OF RS.51,000 TO THE ASSESSEE AND ANOTHER GIFT OF RS.51,000 TO SMT. USHA AGARWAL WHO IS STATED TO BE THE WIFE OF THE ASSESSEE. DURING THE COURSE OF HEARING, THE LEARNED AR OF THE ASSESSEE COULD NOT GIVE DETAILS OF THE NATURE OF BUSINESS OF SMT. SHANTI DEVI. NO DOUBT THAT SHE IS ALSO STATED TO HAVE GIVEN SAID GIFT OF RS.51,000 TO THE ASSESSEE BY ACCOUNT PAYEE CHEQUE, BUT SAVE AND EXCEPT THAT THE AMOUNT HAS BEEN GIVEN BY ACCOUNT PAYEE CHEQUE TO THE ASSESSEE AS GIFT, THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE ANY OTHER DOCUMENTS TO PROVE THE GENUINENESS OF THE SAID GIFT. WE AGREE WITH THE LEARNED DR THAT MERE PRODUCTION OF THE STATEMENT OF ACCOUNTS OR IDENTIFICATION OF THE DONORS ARE NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFTS AS HELD BY HONBLE DELHI HIGH COURT IN THE CASE OF SAJAN DASS AND SONS V. COMMISSIONER OF INCOME - TAX [2003] 264 ITR 435 (DEL) . HONBLE MADRAS HIGH COURT HAS ALSO HELD IN THE CASE OF A.RAJENDRAN & OTHERS V. ACIT [(2007) 291 ITR 178(MAD)] THA T BURDEN IS ON THE ASSESSEE TO SHOW THAT THE RECEIPT IS NOT OF ANY INCOME IN NATURE BY G IVING AN EXPLANATION TO THE ITO. THE ITO IS NOT EXPECTED TO PUT BLINKER AND ACCEPT IT AS IT IS; IT IS OPEN TO HIM TO PROBE FURTHER AND FIND OUT WHETHER THE APPARENT I S REA L OR NOT 4 /ITA NO. 542/KOL/2009 AND TAKE A DECISION ON SUCH PROBING IN THE LIGHT OF THE HUMAN PROBABILITY. HOWEVER, HE SHOULD NOT ACT UNREASONABLY . CONSIDERING THE FACTS IN THE LIGHT OF THE ABOVE DECISIONS OF HONBLE DELHI AND MADRAS HIGH COURTS, THAT SMT. SHANTI DEVI GUPTA HAD AN INCOME OFRS.52,500 IN THE ASSESSMENT YEAR UNDER CONSIDERATION AND HER WITHDRAWAL WAS ONLY RS.26,000 AND ALSO THE FACT THAT SHE IS STATED NOT ONLY TO HAVE GIVEN GIFT TO THE ASSESSEE OF RS.51,000 BUT ALSO TO THE W IFE OF THE ASSESSEE SMT. USHA AG ARWAL A SIMILAR GIFT OF RS.51,000, WE ARE OF THE CONSIDERED VIEW THAT IT CANNOT BE EXPECTED THAT SMT.SHANTI DEVI GUPTA WAS IN A POSITION TO GIVE TWO GIFTS OF RS.51,000 EACH TO THE ASSESSEE AND HIS WIFE IN THE ASSESSMENT YEAR 2004 - 05, WHEN THE ASSESSEE IS NOT RELATED TO HER. THEREFORE, THE CREDITWORTHINESS AS WELL AS GENUINENESS OF TRANSACTION IS NOT PROVED BY THE ASSESSEE. HENCE, WE UPHOLD THE ORDER OF THE LEARNED CIT(A) FOR REJECTING THE GENUINENESS OF THE GIFT STATED TO HAVE BEEN RECEIVED FROM SMT. SHANTI D EVI GUPTA OF RS.51,000. 7. IN VIEW OF THE ABOVE, THE GROUND TAKEN BY THE ASSESSEE IS ALLOWED IN PART BY DELETING THE ADDITION OF RS.51,000 STATED TO HAVE BEEN RECEIVED AS GIFT FROM JAGADISH KUMAR MITAL AND CONFIRMING THE ADDITION OF RS.51,000 STATED TO H AVE BEEN RECEIVED AS GIFT FROM SMT. SHANTI DEVI GUPTA. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED IN PART. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 19.03.2010 SD/ - SD/ - ( . . ) , , (B.C.M EENA), ACCOUNTANT MEMBER. ( . . ), B.R.MITTAL, JUDICIAL MEMBER ( ) DATE: 19.03.2010 ( /H.K.PADHEE) / SNR.PRIVATE SECRETARY. 5 /ITA NO. 542/KOL/2009 - COPY OF THE ORDER FORWARDED TO: 1. / THE APPELLANT : ASHISH KR. AGARWAL, C/O. SHIV IRON CO., CHAYANPARA ROY COLONY, EASTERN BY PAS ROAD, P.O.SILIGURI (WEST BENGAL) 2 / THE RESPONDENT : INCOME - TAX OFFICER, WARD 1(1),SILIGURI. 3. / THE CIT, 4. ( ) / THE CIT(A), 5. / DR, KOLKATA BENCHES, KOLKATA 6. GUARD FILE . / TRUE COPY , / BY ORDER , / DEPUTY REGISTRAR .