Dr.I.Arivukkarasu, Salem V. ITO, Salem

ITA 581/CHNY/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7107 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 14-07-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 10-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: GURU BHASHYAM
• Assessee Lawyers: G BASKAR
• Keywords: Unexplained investment; Gift
• Section: 143(3); 147; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . , ! # $ , % & BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.581/MDS/2014 ( / ASSESSMENT YEAR: 2009-10) DR.I. ARIVUKKARASU, AROKYA HOSPITAL, 12/21-22, SURAMANGALAM MAIN ROAD, THREE ROADS, PALLAPATTY, SALEM-636 009. VS THE INCOME TAX OFFICER, WARD-III(1), GANDHI ROAD, SALEM-636 007. PAN: AFFPA9340H ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. G.BASKAR, ADVOCATE /RESPONDENT BY : MR. GURU BHASHYAM, JCIT / DATE OF HEARING : 14 TH JULY, 2014 /DATE OF PRONOUNCEMENT : 8 TH AUGUST, 2014 / O R D E R PER CHALLA NAGENDRA PRASAD , JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), SALEM DATED 31.01.2014 FOR THE ASSESSMENT YEAR 2009-10. THE ONLY ISSUE IN THE APPEAL OF THE ASSESSEE IS THAT COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING CASH DEPOSITS OF ` 17,00,000/- MADE INTO BANK ACCOUNT AS UNEXPLAINED INCOME OF THE ASSESSEE. 2 ITA NO.581 /MDS/2014 2. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT ASSESSEE MADE CASH D EPOSITS OF ` 31,53,000/- INTO SAVINGS BANK ACCOUNT OF KOTAK MAH INDRA BANK DURING 01.04.2008 TO 31.03.2009 RELEVANT TO TH E ASSESSMENT YEAR 2009-10. THE ASSESSING OFFICER REQU IRED THE ASSESSEE TO EXPLAIN SOURCES FOR THESE DEPOSITS. THE ASSESSEE SUBMITTED REPLY ON 14.12.2011 STATING THAT THERE WERE CASH DEPOSITS AND CASH WITHDRAWALS ON VARIOUS OCCASIONS AND AS SUCH A PART OF WITHDRAWALS BECOME SOURCES FOR A PORTION OF DEPOSITS MADE IN THE BANK ACCOUNT AND FILED A DETAILED WORKING AS PER WHICH MAXIMUM CASH INTRODUC ED WAS SHOWN AT ` 21,06,400/-. THE ASSESSEE CLAIMED THAT OUT OF THIS AMOUNT ` 17,00,000/- WAS RECEIVED AS GIFTS I.E. ` 6,00,000/- FROM HIS WIFE DR. RANI, ` 6,00,000/- FROM HIS MOTHER SMT. VIJAYALAKSHMI AND ` 5,00,000/- FROM HIS FATHER-IN-LAW SHRI P.VARADARAJAN. HOWEVER, THE ASSESSING OFFICER DISBE LIEVED THE VERSION OF ASSESSEE THAT HE HAS RECEIVED GIFTS FROM WIFE, MOTHER AND FATHER-IN-LAW FOR THE REASON THAT ASSESS EE HAS NOT SHOWN ANY OF THESE GIFTS IN HIS CAPITAL ACCOUNT/RET URN OF INCOME FILED AND DURING THE ASSESSMENT YEAR THERE W ERE NO WITHDRAWALS IN THEIR ACCOUNT TO THE EXTENT OF WHAT THE 3 ITA NO.581 /MDS/2014 ASSESSEE RECEIVED AS GIFTS AND MOST OF THE WITHDRAW ALS WERE MADE BY SHRI A.ILAVALAGAN & MR. G.KANNAN IN THE CA SE OF MOTHER SMT. S.VIJAYALAKSHMI AND NOT BY THE ASSESSE. IN THE CASE OF FATHER-IN-LAW AND WIFE, THE ASSESSING OFFIC ER OBSERVED THAT WITHDRAWALS WERE MADE ON 12 AND 8 OCC ASIONS RESPECTIVELY IN BOTH THESE CASES AND ALL THESE AMOU NTS WERE SAID TO HAVE BEEN GIVEN TO THE ASSESSEE IS NOT BELI EVABLE. THEREFORE, ASSESSING OFFICER MADE ADDITION OF ` 21,06,400/- AS UNEXPLAINED INVESTMENT. THE ASSESSEE FILED APPEA L BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND IN THE COURSE OF APPEAL PROCEEDINGS, THE ASSESSEE EXCEPT FOR THE GIFTS RECEIVED FROM WIFE, MOTHER AND FATHER-IN-LAW TO TH E EXTENT OF ` 17,00,000/-, DIFFERENCE AMOUNT OF ` 4,06,400/- WAS AGREED. THE ASSESSEE CONTESTED ONLY FOR THE ADDITION TO THE EXTENT OF ` 17,00,000/- WHICH WAS SAID TO HAVE BEEN RECEIVED AS GIFTS FROM HIS WIFE, MOTHER AND FATHER-IN-LAW. THE COMMI SSIONER OF INCOME TAX (APPEALS) ACCEPTING THE CONTENTIONS O F THE ASSESSING OFFICER SUSTAINED THE ADDITION OF ` 17,00,000/- DISBELIEVING THE VERSION OF THE ASSESSEE THAT HE HA S RECEIVED GIFTS FROM HIS FAMILY MEMBERS. 4 ITA NO.581 /MDS/2014 3. COUNSEL FOR THE ASSESSEE REITERATING THE SUBMISS IONS MADE BEFORE THE LOWER AUTHORITIES SUBMITS THAT ASSE SSEE HAS RECEIVED GIFTS ` 6,00,000/- FROM HIS WIFE, ` 6,00,000/- FROM HIS MOTHER AND ` 5,00,000/- FROM HIS FATHER-IN-LAW. COUNSEL FOR THE ASSESSEE REFERRING TO PAGE 7 OF THE PAPER BOOK SUBMITS THAT IN THE CASE OF SMT. S.VIJAYALAKSHMI THERE WERE WITHDRAWAL OF ` 12,10,000/- DURING THE PERIOD FROM 1.4.2005 TO 31.3.2009 AND THEREFORE GIFT MADE TO THE ASSESSE E TO THE EXTENT OF 6,00,000/- FROM SMT. VIJAYALAKSHMI, MOTHE R OF THE ASSESSEE CANNOT BE DISBELIEVED. SIMILARLY, IN THE CASE OF SHRI P.VARADARAJAN, FATHER-IN-LAW, COUNSEL SUBMITS THAT THERE WERE WITHDRAWALS DURING THE ASSESSMENT YEAR 2009-1 0 TO THE EXTENT OF ` 5,78,000/- ON VARIOUS DATES. THEREFORE, GIFT TO TH E ASSESSEE BY FATHER-IN-LAW TO THE EXTENT OF ` 5,00,000/- CANNOT BE DISBELIEVED. INSOFAR AS THE GIFT OF ` 6,00,000/- RECEIVED FROM WIFE DR.V.RANI REFERRING TO PAGE 25 O F THE PAPER BOOK WHICH IS ASSESSMENT ORDER OF DR.V.RANI, COUNSEL SUBMITS THAT IN FACT IN THE COURSE OF ASSESSMENT P ROCEEDINGS OF DR. V.RANI, ASSESSING OFFICER ACCEPTED THAT ` 6,00,000/- WAS GIFTED TO THE ASSESSEE, HER HUSBAND, AND ` 6,00,000/- STATED TO BE UNACCOUNTED CASH RECEIVED FROM HOSPITA L AND 5 ITA NO.581 /MDS/2014 THIS WAS OFFERED TO TAX IN HER HANDS IN THE REVISE D RETURN FILED BY HER. THEREFORE, COUNSEL SUBMITS THAT SINCE THIS AMOUNT WAS ALREADY OFFERED AND CASH HAS BEEN SHOWN AS UNACCOUNTED CASH RECEIVED AND THIS AMOUNT WAS GIFT ED TO ASSESSE, THE SAME CANNOT BE DISBELIEVED SO AS TO TR EAT AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE . 4. DEPARTMENTAL REPRESENTATIVE SUBMITS THAT ASSESSE E FILED RETURN OF INCOME ON 26.03.2010 AND IN THE RET URN FILED THE ASSESSEE HAS NOT SHOWN EVEN A SINGLE GIFT IN HI S CAPITAL ACCOUNT. DEPARTMENTAL REPRESENTATIVE SUBMITS THAT H AD THE ASSESSEE ACTUALLY RECEIVED GIFTS, HE WOULD HAVE SHO WN IN THE RETURN FILED. THEREFORE, HE SUPPORTS THE CONTENTION OF THE ASSESSING OFFICER THAT ASSESSEE RECEIVED GIFTS FROM FAMILY MEMBERS TO SHOW THE SOURCE FOR THE CASH DEPOSITS IN THE BANK ACCOUNT IS ONLY AN AFTERTHOUGHT. WHEN IT WAS Q UESTIONED IN THE COURSE OF ASSESSMENT PROCEEDINGS, THAT ASSES SEE CAME UP WITH A PLEA THAT HE HAS RECEIVED GIFTS FROM WIFE, MOTHER AND FATHER-IN-LAW. DEPARTMENTAL REPRESENTATI VE FURTHER SUBMITS THAT ASSESSEE HAS NOT PROVED THAT T HESE GIFTS WERE GENUINE AND IN FACT THE ASSESSEE HAS RECEIVED THESE 6 ITA NO.581 /MDS/2014 GIFTS FROM HIS FAMILY MEMBERS. DEPARTMENTAL REPRESE NTATIVE REFERRING TO PAGE 7 OF THE PAPER BOOK FILED BY THE ASSESSEE SUBMITS THAT DURING THE ASSESSMENT YEAR WITHDRAWALS IN THE CASE OF SMT. S.VIJAYALAKSHMI WERE ONLY TO THE EXTEN T OF ` 2,25,000/- AND IT IS STATED THAT ASSESSEE HAS RECEI VED GIFT OF ` 6,00,000/- AND THE WITHDRAWALS BY SMT. VIJAYALAKSHM I DURING THE YEARS FROM 2005 TO 2008 CANNOT BE CONSIDERED AS SOURCE FOR GIFT RECEIVED BY THE ASSESSEE. HE PLEADS FOR SU STAINING THE ADDITIONS MADE BY THE ASSESSING OFFICER. 5. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHOR ITIES. THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSME NT TREATED ` 17,00,000/- RECEIVED BY THE ASSESSEE AS UNEXPLAINED INVESTMENT DISBELIEVING THE VERSION OF THE ASSESSEE THAT HE HAS RECEIVED ` 17,00,000/- FROM WIFE, MOTHER AND FATHER-IN-LAW DURING THE ASSESSMENT YEAR 2009- 10 AND THESE GIFTS ARE THE SOURCES FOR MAKING CASH DEPOSITS IN HIS SAVINGS BANK ACCOUNT. THE ASSESSING OFFICER WAS OF THE VIEW THAT EXPLANATION OF THE ASSESSEE THAT HE H AS RECEIVED GIFTS IS ONLY AN AFTERTHOUGHT AS THE ASSES SEE HAS NEVER SHOWN ANY GIFT IN HIS CAPITAL ACCOUNT IN THE RETURN OF 7 ITA NO.581 /MDS/2014 INCOME FILED BY THE ASSESSEE. ASSESSING OFFICER ALS O OBSERVED THAT THOUGH ASSESSEES MOTHER, THE DONOR S AID TO HAVE BEEN GIFTED ` 6,00,000/- WITHDRAWALS IN THE ACCOUNT CLAIMED TO RELATE TO GIFT WORKS OUT TO ONLY ` 2,25,000/- AND NOT ` 6,00,000/- AS CLAIMED BY THE ASSESSEE. HE FURTHER OBSERVED THAT NONE OF THE WITHDRAWALS DURING THE YEAR UNDER CONSIDERATION RELATED TO THE ASSESSEE AND MOST OF T HE WITHDRAWALS WERE MADE IN FAVOUR OF ONE MR. ILAVALA GAN AND MR. G.KANNAN. THE ASSESSING OFFICER ALSO OBSERVED T HAT ENTIRE WITHDRAWALS BY THE DONORS DURING THE ASSESSM ENT YEAR ON SEVERAL OCCASIONS CANNOT ENTIRELY BE CONSIDERED AS GIFTS GIVEN TO THE ASSESSEE. 6. ON A PERUSAL OF THE CAPITAL ACCOUNT OF THE ASSES SEE FILED BEFORE US WE NOTICE THAT ASSESSEE HAS NOT SHO WN ANY GIFTS RECEIVED FROM ANY OF THE FAMILY MEMBERS, ON T HE OTHER HAND, WE FIND THAT ASSESSEE HAS SHOWN INTEREST RECE IVED FROM LOAN ADVANCED TO HIS WIFE DR. V.RANI. THE APPR EHENSION OF THE ASSESSING OFFICER THAT ASSESSEE HAS NEVER S TATED IN THE RETURN FILED THAT HE HAS RECEIVED ANY GIFT FROM FAMILY MEMBERS AND THEREFORE THE SUBMISSION OF THE ASSESSE E THAT 8 ITA NO.581 /MDS/2014 HE HAS RECEIVED GIFTS FROM FAMILY MEMBERS AND SUCH GIFTS ARE THE SOURCES FOR CASH DEPOSITS IN THE ACCOUNT IS ONL Y AN AFTERTHOUGHT CANNOT BE BRUSHED ASIDE. THUS, WE UPHO LD THE ORDERS OF LOWER AUTHORITIES IN HOLDING THAT ASSESSE E IS NOT ABLE TO PROVE SOURCE FOR HIS DEPOSITS AND THE PLEA OF THE ASSESSEE THAT HE HAS RECEIVED GIFTS FROM FAMILY MEM BERS. HOWEVER IN RESPECT OF THE GIFT RECEIVED FROM DR. V. RANI IS CONCERNED, SINCE THE ASSESSING OFFICER WHILE COMPL ETING THE ASSESSMENT OF DR. V.RANI UNDER SECTION 143(3) READ WITH SECTION 147 FOR THE ASSESSMENT YEAR 2009-10 HAS ACC EPTED THAT DR. VANI HAS GIFTED ` 6,00,000/- TO HER HUSBAND, THE ASSESSEE HEREIN, AND SUCH AMOUNT WAS ALREADY CONSID ERED AS UNACCOUNTED CASH RECEIVED FROM HOSPITAL AND THE SOURCE FOR GIFT TO THE ASSESSEE AND WAS ALREADY BROUGHT TO TAX IN THE HANDS OF THE DONOR DR.V.RANI, WE ACCEPT THE SUBMISS ION OF THE ASSESSEE THAT HE HAS RECEIVED GIFT OF ` 6,00,000/- FROM HIS WIFE DURING THE ASSESSMENT YEAR 2009-10. THUS, WE DELETE THE ADDITION OF ` 6,00,000/- OUT OF ` 17,00,000/- MADE UNDER SECTION 68 OF THE ACT. 9 ITA NO.581 /MDS/2014 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 8 TH DAY OF AUGUST, 2014 AT CHENNAI. SD/- SD/- ( A.MOHAN ALANKAMONY ) ( CHALLA NAGEND RA PRASAD ) . ( ' )* ) ACCOUNTANT MEMBER / , JUDICIAL MEMBER/ ) , ) /CHENNAI, - /DATED, 8 TH AUGUST, 2014 SOMU /0 10 /COPY TO: 1. APPELLANT 2. /RESPONDENT 3. 2 () /CIT(A) 4. 2 /CIT 5. 0 6 /DR 6. /GF .