Shri Rajendra Singh, JODHPUR V. ITO, SUMERPUR

ITA 573/JODH/2013

• Counselvise Citation: 57323314 RSA 2013
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 20-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N. K. SAINI, ACCOUNTANT MEMBER I.T.A. NO.573/JODH/2013 ASSESSMENT YEAR: 2009-10 PAN NO. ACOPS6861M SHRI RAJENDRA SINGH, VS. THE INCOME TAX OFFICER M/S CREATIVE GRANITE, SUMERPUR. KOLIWARA, SUMERPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA JAIN. RESPONDENT BY : SHRI N.A. JOSHI, D.R. DATE OF HEARING : 31/03/2014 DATE OF PRONOUNCEMENT : 08/05/2014 ORDER PER N. K. SAINI: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 28/11/2013 OF LD. CIT(APPEALS)-JODHPUR. THE ONLY EFFECTIVE GRO UND RAISED IN THIS APPEAL READS AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) ERRED IN SUSTAINING ADDITION OF RS. 9,00,000 /- U/S 69 OF THE ACT. 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 31/3/2010 DECLARING AN INCOME OF RS. 2,71 ,420/- AND AN AGRICULTURAL INCOME OF RS. 42,520/-. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD DEPOSITED IN CASH RS. 14,20,000/- IN I CICI BANK, SUMERPUR AS PER FOLLOWING DETAILS: 2 DATE DEPOSITS 24/07/2008 RS. 5,00,000/- 06/02/2009 RS. 10,000/- 30/03/2009 RS. 9,00,000/- 10/02/2009 RS. 10,000/- TOTAL RS. 14,20,000/- THE ASSESSING OFFICER SOUGHT THE EXPLANATION REGAR DING DEPOSITS FROM THE ASSESSEE AND THE EXPLANATION OF THE ASSESSEE WITH R EGARD TO THE IMPUGNED AMOUNT WAS THAT HE RECEIVED A CASH GIFT OF RS. 9.00 LACS FROM HIS FATHER SHRI UMMAID SINGH ON 10/2/2009 AND THE SAME WAS DEPOSITE D IN THE BANK ON 30/3/2009. IT WAS FURTHER STATED THAT HIS FATHER WA S A RETIRED PERSON FROM ARMY, WHO RECEIVED PENSION AND WAS HAVING AGRICULTURAL IN COME FROM 60 BIGHAS OF LAND. THE ASSESSEE ALSO FURNISHED DECLARATION OF GI FT BEFORE THE ASSESSING OFFICER. HOWEVER, THE ASSESSING OFFICER DID NOT ACC EPT THE CLAIM OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEES FATHER HA D EXPIRED ON 06/4/2009, AS SUCH AUTHENTICITY OF HIS SIGNATURE APPEARING IN THE DECLARATION OF GIFT DEED COULD NOT BE PROVED. THE ASSESSING OFFICER ALSO POI NTED OUT THAT IF THE FUND OF RS. 9.00 LACS WAS AVAILABLE WITH THE ASSESSEE BEING ONLY SON OF HIS FATHER THEN WHY HE TOOK AN INTEREST BEARING LOAN FROM MARW AR GRAMIN BANK AND CHOLAMADALARAM DBS. THE ASSESSING OFFICER WAS OF TH E VIEW THAT THE ASSESSEE CONCEALED THE FACTS ABOUT THE SOURCE OF DE POSITS OF RS. 9.00 LACS IN THE ICICI BANK, HE, THEREFORE, HELD THAT THE ASSESS EE HAD MADE INVESTMENT TO THE EXTENT OF RS. 9.00 LACS IN THE BANK ACCOUNT FRO M UNDISCLOSED SOURCES. ACCORDINGLY, THE ADDITION OF RS. 9.00 LACS WAS MADE . 3 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSIN G OFFICER. IT WAS FURTHER STATED THAT THE ASSESSING OFFICER WITHOUT BRINGING ON RECORD ANY CONTRARY MATERIAL OR EVIDENCE, REJECTED THE CLAIM OF GIFT TH EREBY DOUBTING THE SIGNATURE OF HIS FATHER CONTAINED IN THE DECLARATION OF GIFT DEED, WHICH WAS DULY NOTARISED AND CERTIFIED. THEREFORE, THE OBSERVATIONS OF THE A SSESSING OFFICER DOUBTING THE AUTHENTICITY OF THE SIGNATURE WAS NOT CORRECT. IT WAS ALSO SUBMITTED THAT IN CASE OF ANY DOUBT, THE ASSESSING OFFICER SHOULD HAV E VERIFIED FROM THE NOTARY PUBLIC, WHO HAD NOTARISED THE GIFT DEED. AS REGARDS TO THE OBSERVATION OF THE ASSESSING OFFICER THAT WHEN THE ASSESSEE WAS ONLY S ON OF HIS FATHER, WHO WAS HAVING FUND THEN WHY THE ASSESSEE TOOK INTEREST BEA RING LOANS FROM MGB BANK AND FINANCE COMPANY, THE ASSESSEE SUBMITTED TH AT THE LOAN RECEIVED FROM MGB BANK WAS AN AGRICULTURAL LOAN, WHICH WAS P ROVIDED BY THE GOVERNMENT TO THE AGRICULTURISTS HAVING KISHAN GOLD CARD FOR THE AGRICULTURAL PURPOSES ON NORMAL RATE OF INTEREST. THE COPY OF TH E BANK PASSBOOK WAS FURNISHED BEFORE THE ASSESSING OFFICER WHICH SUGGES TED THAT THE ENTIRE LOAN WAS UTILISED ONLY FOR THE PURPOSES OF AGRICULTURAL ACTIVITIES AND THE SAME COULD NOT BE A GROUND TO TREAT THE GIFT DEED AS INGENUINE . IT WAS FURTHER STATED THAT THE OTHER LOAN OF RS. 6.16 LACS WAS FINANCED ON TRU CK, THE INSTALMENT WAS PAID OUT OF INCOME FROM SUCH TRUCK AND THE ASSESSING OFF ICER HIMSELF ACCEPTED THE INCOME SHOWN FROM TRUCK IN THE RETURN OF INCOME, TH EREFORE, THE OBSERVATIONS OF THE ASSESSING OFFICER FOR REJECTING THE GIFT OF RS. 9.00 LACS WERE NOT BASED ON PROPER APPRECIATION OF FACTS. 4 4. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT THE ASSESSEE FAILED TO PROVE THE DEPO SIT OF RS. 9.00 LACS OUT OF GIFT GIVEN BY HIS FATHER AND THOUGH THE ASSESSEES FATHER WAS NO MORE ALIVE, NO PERSON WHATSOEVER, HAD BEEN PRODUCED TO CONFIRM THE CONTENTS OF THE SAID GIFT DECLARATION. THE LD. CIT(A) POINTED OUT THAT T HE FATHER OF THE ASSESSEE WAS A PENSIONER RECEIVING ONLY A MEAGRE AMOUNT OF ABOU T RS. 6,000/- PER MONTH AS PENSION AND THE BALANCE IN THE BANK ACCOUNT AS O N 05/2/2008 WAS ONLY RS. 1,24,347/- AND AT NO POINT OF TIME, THE CREDIT BALA NCE WAS OVER AND ABOVE RS. 4.00 LACS. EVEN THE TOTAL WITHDRAWALS WERE SHOWN AT RS. 4,08,122/- WITH CREDIT BALANCE OF RS. 1,24,347/- ONLY DURING THE PERIOD 1/ 4/2006 TO 05/2/2008, THEREFORE, IT WAS NOT POSSIBLE FOR HIS FATHER TO GI VE GIFT OF RS. 9.00 LACS FROM HIS PENSION FUND. AS REGARDS TO THE CLAIM OF THE ASSESS EE THAT HIS FATHER, OUT OF HIS OWN AGRICULTURAL INCOME HAD CONTRIBUTED TO GIVE GIFT OF RS. 9.00 LACS. THE LD. CIT(A) OBSERVED THAT, THOUGH, THE ASSESSEE HAD PRODUCED COPY OF GIRDAWARI AND KHASRA BUT IT ONLY GAVE DETAILS OF LA ND HOLDING AND CROPS CULTIVATED AT A PARTICULAR LAND AND DID NOT GIVE IN DICATION OF HOW MUCH CROPS WERE GROWN UP IN THE YEAR UNDER CONSIDERATION AND EARLIER YEARS OR WHAT WAS THE TOTAL SALE OF AGRICULTURAL CROPS FROM SUCH LAND HOLDING. THE LD. CIT(A) POINTED OUT THAT THE ASSESSEE PRODUCED ONLY A SALE RECEIPT DATED 06/4/2005 OF ABOUT RS. 87,400/- FROM KRISHI UPAJ MANDI BUT THE S AME DID NOT PROVE THAT SURPLUS FUND WAS BEING GENERATED FROM AGRICULTURAL ACTIVITY TO JUSTIFY THE SUBSTANTIAL GIFT. THE LD. CIT(A) ALSO MENTIONED THA T THE ASSESSEE FURNISHED A VERY GENERAL AND VAGUE LETTER FROM PATWARI STATING THAT ONE HECTARE IS 5 EQUIVALENT TO 6.25 BIGHAS AND LAND IN THAT AREA IS CAPABLE OF YIELDING 7 TO 8 BAGS OF WHEAT ETC. THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HIMSELF OWNS A BIG CHUNK OF LAND BUT HAD SHOWN AGRICULTURAL INCOME OF RS. 42,520/- ONLY AND IF THIS IS TAKEN AS A MEASURE OF AGRICULTURAL INCOME, THE AGRICULTURAL INCOME OF FATHER EVEN FROM A LARGER HOLDING AND AFTER MEETING HIS PERSONAL AND FAMILY NEEDS WOULD NOT GENERATE SUCH A HUG SURPLUS TO JUST IFY THE GIFT OF RS. 9.00 LACS. HE, THEREFORE, HELD THAT THE ASSESSEE FAILED TO ESTABLISH THAT THE SAID DEPOSIT OF RS. 9.00 LACS WAS ACTUALLY A GIFT FROM H IS FATHER. AS REGARDS THE CLAIM OF THE ASSESSEE THAT WHY THE ASSESSING OFFICE R DID NOT INQUIRE FROM THE NOTARY PUBLIC, WHO NOTARISED THE DEED, THE LD. CIT( A) OBSERVED THAT ANY NOTARISED DOCUMENT WITHOUT ANY EVIDENCE TO PROVE T HE CONTENTS OF THE DOCUMENTS WAS NOTHING BUT A SELF SERVING DOCUMENT. THE LD. CIT(A), ACCORDINGLY, HELD THAT THE DEPOSIT OF RS. 9.00 LACS WAS UNEXPLAINED AND THE ASSESSEE HAD MADE IT OUT OF HIS OWN UNDISCLOSED INC OME. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE FURNISHED THE DECLARATION OF GIFT DATED 10/2/2009 BEFORE THE ASSESSING OFFICER. THE SAID GIFT WAS NOTARISED AND WRITTEN ON THE STAMP PAPER O F RS. 100/-. COPY OF WHICH IS PLACED AT PAGE NO. 6 OF THE ASSESSEES PAPER BOO K. IT WAS FURTHER STATED THAT THE FATHER OF THE ASSESSEE WAS HOLDING AGRICUL TURAL LAND FROM WHICH SUBSTANTIAL AGRICULTURAL INCOME WAS EARNED, WHICH I S EVIDENT FROM THE COPIES OF FINANCIAL STATEMENT PLACED AT PAGE NOS. 12 TO 19 OF THE ASSESSEES PAPER 6 BOOK. IT WAS CLAIMED THAT THOSE FINANCIAL STATEMENT S WERE FURNISHED BEFORE THE AUTHORITIES BELOW AND WERE NOT DOUBTED. OUR ATTENTI ON WAS DRAWN TOWARDS PAGE NOS. 13 AND 14 OF THE PAPER BOOK, WHICH ARE CO PIES OF CAPITAL ACCOUNTS AND THE BALANCE SHEET RESPECTIVELY OF SHRI UMMED SI NGH JI, FATHER OF THE ASSESSEE. IT WAS STATED THAT THE FATHER OF THE ASSE SSEE WAS HAVING OPENING CAPITAL BALANCE OF RS. 15,64,997/- AS ON 01/4/2008 OUT OF WHICH RS. 9.00 LACS WAS GIVEN TO THE ASSESSEE AS A GIFT ON 10/2/2009 AN D AFTER GIVING THE GIFT THE CLOSING BALANCE REMAINED AT RS. 6,64,997/-. IT WAS STATED THAT THE ASSESSEE RECEIVED A GENUINE GIFT FROM HIS FATHER, WHO EARNED AGRICULTURAL INCOME FROM HIS 60 BIGHAS OF AGRICULTURAL LAND, THEREFORE, THE SOURCE OF GIFT WAS EXPLAINED AND THE ADDITION SUSTAINED BY THE LD. CIT(A) WAS NO T JUSTIFIED. 6. IN HIS RIVAL SUBMISSIONS, THE LD. D.R. STRONGLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AND REITERATED THE OBSERVATIONS M ADE IN THE IMPUGNED ORDER BY THE LD. CIT(A). 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE CLAIMED A CASH GIFT OF RS . 9.00 LACS FROM HIS FATHER, WHO WAS A RETIRED ARMY PERSONNEL AND WAS RECEIVING PENSION, HE WAS HOLDING 60 BIGHAS OF AGRICULTURAL LAND, THIS FACT WAS ACCEP TED BY THE AUTHORITIES BELOW AND IS ALSO EVIDENT FROM THE COPY OF JAMABANDI, WHI CH IS PLACED AT PAGE NO. 21 OF THE ASSESSEES PAPER BOOK. THE FATHER OF THE ASSESSEE GIFTED A SUM OF RS. 9.00 LACS TO THE ASSESSEE IN CASH VIDE DECLARAT ION OF GIFT DATED 10/2/2009. COPY OF WHICH IS PLACED AT PAGE NO. 6 OF THE ASSESS EES PAPER BOOK. THE SAID 7 DECLARATION OF GIFT IS ATTESTED BY THE NOTARY PUBLI C, SUMERPUR. HOWEVER, THE SAID DECLARATION WAS NOT ACCEPTED BY THE ASSESSING OFFICER FOR THE REASON THAT THE FATHER OF THE ASSESSEE WAS NOT ALIVE AND EXPIRE D ON 06/4/2009. IN THE PRESENT CASE, THE ASSESSING OFFICER, THOUGH, DOUBTE D THE AUTHENTICITY OF SIGNATURE APPEARING IN THE DECLARATION OF GIFT DEED BUT NOTHING CONTRARY TO PROVE THAT THE SIGNATURE WERE NOT OF ASSESSEES FAT HER, WAS BROUGHT ON RECORD, EVEN THE ASSESSING OFFICER NEITHER VERIFIED FROM TH E NOTARY PUBLIC, WHO ATTESTED THE DECLARATION OF GIFT NOR FROM THE BANK MANAGER OF THE BANK, IN WHICH THE PENSION ACCOUNT WAS MAINTAINED BY THE FAT HER OF THE ASSESSEE. THEREFORE, THE DOUBT OF THE ASSESSING OFFICER WAS B ASELESS. IN THE INSTANT CASE, IT IS NOTICED THAT THE ASSESSEE FURNISHED THE COPIES OF CAPITAL ACCOUNT AND THE BALANCE SHEET OF HIS FATHER BEFORE THE AUTH ORITIES BELOW, WHICH ARE PLACED AT PAGE NOS. 12 TO 19 OF THE ASSESSEES PAPE R BOOK. FROM THOSE DETAILS, IT IS NOTICED THAT THE CAPITAL AVAILABLE W ITH THE FATHER OF THE ASSESSEE AS ON 31/3/2008 WAS RS. 15,64,997/-, WHICH COMPRISED O F CASH IN HAND OF RS. 14,40,650/- AND BANK BALANCE OF RS. 1,24,347/-. OUT OF THE SAID CAPITAL, FATHER OF THE ASSESSEE GIFTED A SUM OF RS. 9.00 LACS TO TH E ASSESSEE IN CASH ON 10/2/2009 VIDE A DECLARATION OF GIFT. COPY OF WHICH IS PLACED AT PAGE NO. 6 OF THE ASSESSEES PAPER BOOK. THEREFORE, THE ASSESSEE NOT ONLY FURNISHED THE COPY OF THE DECLARATION OF GIFT BUT ALSO FURNISHED SOURCE OF THE GIFT GIVEN BY HIS FATHER, THEREFORE, THE ADDITION MADE BY THE ASSESSI NG OFFICER ON ACCOUNT OF THE GIFT OF RS. 9.00 LACS WAS NOT JUSTIFIED AND THE LD. CIT(A) WITHOUT APPRECIATING THE FACTS OF THE CASE IN RIGHT PERSPECTIVE, CONFIRM ED THE SAID ADDITION MADE BY 8 THE ASSESSING OFFICER. WE, THEREFORE, CONSIDERING T HE TOTALITY OF THE FACTS AS DISCUSSED HEREINABOVE, DELETE THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A). 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 08/05/2014) . SD/- SD/- (HARI OM MARATHA) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08 TH MAY, 2014 *RANJAN COPY FORWARDED TO: 1. APPELLANT- 2. RESPONDENT- 3. CIT(A) 4. CIT 5. D.R. BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR.