SHRI JITENDRA KUMAR TIWARI S/O NARAYAN PRASAD TIWARI, Dewas V. THE ITO, Dewas

ITA 546/IND/2013

• Counselvise Citation: 54622714 RSA 2013
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 22-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P D NAGAR
• Keywords: Gift; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.546/IND/2013 A.Y. : 2008-09 SHRI JITENDRA KUMAR TIWARI, ITO, DEWAS DEWAS VS APPELLANT RESPONDENT P.A.N. NO A IVPT1083H APPELLANT BY SHRI P. D. NAGAR, C. A. RESPONDENT BY SHRI RAHUL RAMAN, DR DATE OF HEARING : 04.08.2015 DATE OF PRONOUNCEMENT : 01 .09.2015 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A), UJJAIN, DATED 17.07.2014 FOR THE ASSESSM ENT YEAR 2008-09. 2. THE APPEAL IS TIME BARRED BY 3 DAYS. THE LD. COUNSE L FOR THE ASSESSEE STATED THAT THE APPEAL WAS DELIVER ED TO THE COURIER ON 6 TH JULY, 2013, I.E. WELL WITHIN THE TIME, BUT THE SAME WAS BELATEDLY DELIVERED BY THEM ON 22 ND JULY, 2013. PHOTOCOPY OF THE RELIANCE COURIER SERVICE CONTACT S LIP DATED 6.7.2013 IS PLACED BEFORE US AND IS ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE FURTHER PRAYED THAT DELAY OF 3 DAY S MAY PLEASE BE CONDONED. 3. WE HAVE PERUSED THE RECORD AND FIND THAT THE DELAY CAUSED IS REASONABLE AND GENUINE. WE, THEREFORE, CO NDONE THE DELAY OF 3 DAYS. -: 3: - 3 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE H AS FILED THE RETURN OF INCOME OF RS. 1,86,642/-. AS PE R AIR INFORMATION, THE ASSESSEE HAS DEPOSITED RS. 13,74,1 00/- IN SAVING BANK ACCOUNT IN AXIS BANK LIMITED, DEWAS. TH E ASSESSEE HAS NOT EXPLAINED THE SOURCE OF THIS DEPOS IT IN THE ACCOUNT. THEREFORE, THE AO HAS MADE THE ADDITION. 5. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS CONSIDERED 50% OF THE CASH DEPOSIT IS EXPLAINED BY OBSERVING AS UNDER :- 3.1.5 THE APPELLANT HAS DEPOSITED THE CASH IN BANK ACCOUNT ON PIECEMEAL BASIS LESS THAN RS. 50,000/- AND IT IS SUBMITTED BY THE APPELLANT THAT HE DID NOT HAVE PAN NO., THEREFORE, HE HAS DEPOSITED CASH LESS THAN RS. 50,000/- IN HIS BANK ACCOUNT. TH E PROFIT WHICH HE HAS EARNED FROM THE SALE OF HIS HOU SE AT RS. 2,75,000/- IN PITHAMPUR WAS INVESTED IN PURCHASING A PLOT IN SUNCITY, DEWAS, AND BALANCE AMOUNT OUT OF SALE PROCEEDS WAS DEPOSITED IN CASH IN BANK ACCOUNT. THE APPELLANT HAS ALSO PREPARED THE CASH BOOK ON THE BASIS OF THE AMOUNT DEPOSITED -: 4: - 4 AND WITHDRAWN FROM THE BANK ACCOUNT AND TRIED TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT. THE APPELLANT HAS DEPOSITED CASH IN THE BANK ACCOUNT AND ALSO RECEIVED ALL THE GIFTS IN THE CASH, THEREFORE, SOURCE OF THE GIFTS COULD NOT BE C ROSS VERIFIABLE. THE SOURCE OF THE GIFTS AS EXPLAINED BY THE DONORS ARE FROM SAVINGS FROM AGRICULTURAL INCOME, T HE APPELLANT HAS FILED THE DETAIL OF LAND HOLDING, BUT NO DETAIL IN RESPECT OF THEIR AGRICULTURAL INCOME WAS FURNISHED BY THE APPELLANT. CONSIDERING THE ABOVE FACTS, EVEN IF THE CONTENTION OF THE APPELLANT IS ACCEPTED THAT MAJOR SOURCE OF THE CASH DEPOSIT IN T HE BANK ACCOUNT AND MAKING FDRS FROM THEM IS FROM GIFTS FROM THE CLOSE RELATIVES, TOTAL CASH DEPOSIT COULD NOT BE TREATED AS EXPLAINED IN ABSENCE OF CROSS VERIFICATION OF GENUINENESS OF THE GIFTS AND SUFFIC IENCY OF FUNDS OF THE RELATIVES FROM THEIR SOURCES OF INC OME FOR ADVANCING THE GIFTS. THEREFORE, 50% CASH DEPOSI T OUT OF THE TOTAL DEPOSIT RS. 13,74,100/- ( I.E. RS. -: 5: - 5 6,87,050/-) IS TREATED AS EXPLAINED AND BALANCE ADDITION OF RS. 6,87,050/- IS HEREBY CONFIRMED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSEE HAS PRODUCED TH E ADDITIONAL EVIDENCE AND HE TRIED TO EXPLAIN THE SOURCE OF CASH DEPOSIT OUT OF ITS OPENING CASH BALANCE AS PER SHEET AS ON 31.0 3.2007 AND HE HAS RECEIVED THE GIFT OF RS. 12,73,000/-, SALE P ROCEEDS OF HOUSE AT RS. 45,000/-. THE LD. CIT(A) AFTER TAKING INTO CONSIDERATION ALL THESE CASH, CONSIDERED 50 % DEPOS IT WAS TO BE GENUINE. DURING THE COURSE OF HEARING, THE LD. A UTHORIZED REPRESENTATIVE CONTENDED THAT THE ASSESSEE WAS HAVI NG LANDHOLDINGS. MOREOVER, ALL THE FAMILY MEMBERS ARE HAVING LANDHOLDINGS EXCEPT HIS BROTHER. THEREFORE, TOTAL A DDITION MAY BE DELETED, BUT LOOKING TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, WE ARE OF THE VIEW THAT 25% OF THE DEPOSIT AR E TO BE TREATED AS GENUINE OUT OF RS. 6,87,050/-. THEREFORE , 25% IS DELETED. -: 6: - 6 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 1 ST SEPTEMBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 1 ST SEPTEMBER, 2015. CPU* 27.1.9