SHRI VIJAY KUMAR, JAIPUR V. INCOME TAX OFFICER, WARD-4-1, JAIPUR

ITA 584/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2089 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 25-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: TANUJ AGARWAL
• Keywords: Reopening of assessment; Capital asset; Gift; Cost of acquisition; Procedural lapse; Capital Gains
• Section: 48; 13; 147; 148; 54

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 584/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 SHRI VIJAY KUMAR, 300, GURUNANAK PURA, RAJA PARK, JAIPUR. CUKE VS. THE ITO, WARD-4(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BOIPK 0889 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI TANUJ AGARWAL (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 17/03/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 28/04/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 25.02.2019 FOR THE ASSESSME NT YEAR 2010-11 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APP EAL:- 1.THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN NOT QUASHING THE REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE INCOME-TAX ACT, 1961, AND ALSO ERRED IN NOT TREATIN G THE REASSESSMENT ORDER PASSED AS ILLEGAL, UNJUSTIFIED AND VOID-AD-IN ITIO. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN SUSTAINING AN ADDITION OF RS. 3,29,302/- AS SHORT T ERM CAPITAL GAINS FROM SALE OF PROPERTY. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 2 SUSTAINING AN ADDITION OF RS. 4,30,000/- AS UNEXPLA INED DEPOSIT IN BANK ACCOUNT THEREBY IGNORING ALL THE MATERIAL EVIDENCES ON RECORD. 2. IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED THE REOPENING ASSESSMENT U/S 147 OF THE IT ACT. 3. IN THIS REGARD, THE LD. AR SUBMITTED THAT THE AS SESSMENT WAS REOPENED BY ISSUANCE OF NOTICE U/S 148 OF THE ACT ON THE GRO UND THAT THE ASSESSEE HAS MADE TIME DEPOSIT OF RS. 10,00,000/-. THE ASSESSEE VIDE LETTER DATED 11.10.2017 HAD REQUESTED FOR A COPY OF REASONS RECO RDED BY THE ASSESSING OFFICER BEFORE THE ISSUANCE OF NOTICE U/S 148 OF TH E ACT HOWEVER, INSTEAD OF PROVIDING COPY OF THE SIGNED REASONS ORIGINALLY REC ORDED BY THE THEN AO AT THE TIME OF ISSUE OF NOTICE U/S 148, A PRINTOUT WAS PRO VIDED BY THE INCUMBENT ASSESSING OFFICER WHICH ALSO CONTAINED QUERIES RAIS ED BY HIM. IT WAS SUBMITTED THAT NEITHER THE REASONS SO RECORDED WERE PROVIDED TO THE ASSESSEE NOR THE SAME WERE REPRODUCED IN THE REASSESSMENT ORDER HENC E, THE PROCEDURE LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GK N DRIVESHAFTS (INDIA) LIMITED VS. ITO (2003) 259 ITR 19 WAS NOT FOLLOWED BY THE ASSESSING OFFICER AND THE SAME IS A JURISDICTIONAL DEFECT AND THE ENT IRE REASSESSMENT FRAMED DESERVES TO BE QUASHED AS ALSO HELD BY HONBLE RAJA STHAN HIGH COURT IN THE CASE OF M/S KC MERCANTILE VS. DCIT IN ITA NO. 292/2 016. IT WAS FURTHER SUBMITTED THAT MERELY BECAUSE TIME DEPOSIT WAS MADE BY THE ASSESSEE AND THE SOURCE OF WHICH NEEDS TO BE VERIFIED, IT DOES N OT LEAD TO AN INFERENCE THAT INCOME HAS ESCAPED ASSESSMENT AS THERE MUST BE REA SONS TO BELIEVE AND NOT REASONS TO SUSPECT THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT WAS SUBMITTED THAT MERELY BECAUSE A TIME DEPOSIT WAS MADE BY THE ASSESSEE, IT DOES NOT AUTOMATICALLY LEAD TO AN INFERENCE THAT INCOME HAS ESCAPED ASSESSMENT AS THE ASSESSEE MIGHT HAVE U SED HIS DISCLOSED INCOME FOR INVESTMENT IN THE FDR. IN SUPPORT, RELIA NCE WAS PLACED ON THE HONBLE BOMBAY HIGH COURT DECISION IN CASE OF CIT V S. MANIBEN VILJI SHAH 283 ITR 453. IT WAS FURTHER SUBMITTED THAT NO INDEPENDE NT ENQUIRY/VERIFICATION ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 3 WAS CONDUCTED BY THE AO AND MERELY BASIS THE BORROW ED AIR INFORMATION, THE ASSESSMENT WAS REOPENED U/S 147 OF THE ACT WHICH CA NNOT BE A BASIS FOR REOPENING AND HENCE, THE NOTICE U/S 148 AND CONSEQU ENT REASSESSMENT PROCEEDING SHOULD BE QUASHED. 4. PER CONTRA, THE LD DR DRAWN OUR REFERENCE TO THE ASSESSMENT ORDER AND SUBMITTED THAT THERE IS NO PROCEDURAL IRREGULARITY AS THE REASONS SO RECORDED HAVE BEEN SUPPLIED TO THE ASSESSEE AND THEREAFTER, THE ASSESSEE HAS CHOSEN NOT TO OBJECT TO SUCH REOPENING OF ASSESSMENT PROCE EDINGS. IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAD INFORMATIO N THAT THE ASSESSEE HAS PLACED TIME DEPOSITS OF RS 10 LACS WITH HIS BANK AN D GIVEN THAT HE HAS NOT FILED HIS RETURN OF INCOME, THE ASSESSMENT WAS REOP ENED BY ISSUANCE OF NOTICE U/S 148 OF THE ACT. IT WAS FURTHER SUBMITTED THAT MATERIAL BEFORE THE ASSESSING OFFICER WAS RELEVANT AND AFFORDS A LIVE L INK TO THE FORMATION OF PRIMA FACIE BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCA PED ASSESSMENT AND SUFFICIENCY AND CORRECTNESS OF MATERIAL NEED NOT BE LOOKED AT THE INITIAL STAGE OF REOPENING OF THE CASE. THE LD DR ACCORDINGLY SU PPORTED THE ORDER OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUE D THE MATERIAL AVAILABLE ON RECORD. FIRST CONTENTION OF THE LD AR IS THAT THE ASSESSEE VIDE LETTER DATED 11.10.2017 HAD REQUESTED FOR A COPY OF REASONS RECO RDED BY THE ASSESSING OFFICER BEFORE THE ISSUANCE OF NOTICE U/S 148 OF TH E ACT HOWEVER, INSTEAD OF PROVIDING COPY OF THE SIGNED REASONS ORIGINALLY REC ORDED BY THE THEN AO AT THE TIME OF ISSUE OF NOTICE U/S 148, A PRINTOUT WAS PRO VIDED BY THE INCUMBENT ASSESSING OFFICER WHICH ALSO CONTAINED QUERIES RAIS ED BY HIM AND THE SAME IS IN VIOLATION OF THE PROCEDURE LAID DOWN BY THE HON BLE SUPREME COURT IN CASE OF GKN DRIVEHAFTS(SUPRA). IN THIS REGARD, WE REFER TO THE ASSESSMENT ORDER WHEREIN THE ASSESSING OFFICER HAS ACKNOWLEDGED RECE IVING THE REPLY DATED 11.10.2017 SUBMITTED BY THE ASSESSEE AND HAS ALSO S TATED THAT A COPY OF THE REASONS WAS ALSO SUPPLIED TO THE ASSESSEE. WE THER EFORE FIND THAT WHERE THE ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 4 REASONS SO RECORDED WERE DULY SUPPLIED TO THE ASSES SEE EVEN THOUGH NOT IN THE ORIGINAL FORMAT AS RECORDED BY THE AO, THERE IS NO INFIRMITY IN THE ACTION OF THE ASSESSING OFFICER. THE ESSENCE AND SUBSTANCE O F THE REQUIREMENT AS LAID DOWN BY THE HONBLE SUPREME COURT IS TO ALLOW THE A SSESSEE TO HAVE ACCESS TO THE CONTENTS OF THE REASONS SO RECORDED FOR REOPENI NG THE MATTER AND WHERE THE ASSESSEE SO DESIRE, HE HAS THE LIBERTY TO SUBMI T HIS OBJECTIONS AGAINST SUCH REOPENING. THEREFORE, IN THE INSTANT CASE, WE FEEL THAT THE REQUIREMENT OF SUPPLYING THE REASONS HAS BEEN DULY COMPLIED WIT H BY THE AO AND THEREAFTER, WHERE THE ASSESSEE HAS CHOSEN NOT TO OB JECT TO SUCH REOPENING AFTER RECEIVING THE COPY OF THE REASONS SO RECORDED , IT HAS NOT CAUSED ANY PREJUDICE TO THE RIGHTS OF THE ASSESSEE AND THE CON TENTIONS SO ADVANCED CANNOT BE ACCEPTED. 6. NOW, COMING TO THE SECOND CONTENTION OF THE LD A R WHEREIN HE HAS STATED THAT THE ASSESSMENT WAS REOPENED ON THE GRO UND THAT THE ASSESSEE HAS MADE TIME DEPOSIT OF RS. 10,00,000/-. IT WAS SU BMITTED THAT MERELY BECAUSE TIME DEPOSIT WAS MADE BY THE ASSESSEE AND T HE SOURCE OF WHICH NEEDS TO BE VERIFIED, IT DOES NOT LEAD TO AN INFERE NCE THAT INCOME HAS ESCAPED ASSESSMENT AS THERE MUST BE REASONS TO BELIEVE A ND NOT REASONS TO SUSPECT THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT WAS SUBMITTED THAT MERELY BECAUSE A TIME DEPOSIT WAS MA DE BY THE ASSESSEE, IT DOES NOT AUTOMATICALLY LEAD TO AN INFERENCE THAT IN COME HAS ESCAPED ASSESSMENT AS THE ASSESSEE MIGHT HAVE USED HIS DISC LOSED INCOME FOR INVESTMENT IN THE FDR. WE FIND THAT IN THE INSTANT CASE, THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME AND ONLY PURSUANT TO NOT ICE U/S 148, THE RETURN OF INCOME HAS BEEN FILED AND THE ASSESSMENT PROCEEDING S FOR THE IMPUGNED ASSESSMENT YEAR HAVE BEEN INITIATED. IT IS THEREFOR E A CASE OF ASSESSMENT AND NOT-REASSESSMENT. THEREFORE, WHERE THE ASSESSING O FFICER IS CEASED OF THE INFORMATION THAT THE ASSESSEE HAD MADE TIME DEPOSIT OF RS 10 LACS IN HIS BANK ACCOUNT AND SUCH TIME DEPOSITS REMAINS UNDISCLOSED TO THE REVENUE ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 5 AUTHORITIES, THERE IS CLEARLY TANGIBLE INFORMATION IN THE POSSESSION OF THE ASSESSING OFFICER BASIS WHICH A PRIMA FACIE VIEW HA S BEEN FORMED THAT THE INCOME HAS ESCAPED ASSESSMENT. THE ASSESSEE HAS NO T DISPUTED THE FACT THAT HE HAS PLACED TIME DEPOSITS OF RS 10 LACS WITH HIS BANK AND THEREFORE, WHERE THERE IS CREDIBLE INFORMATION IN POSSESSION OF THE ASSESSING OFFICER WHICH IS NOT DISPUTED BY THE ASSESSEE THAT THE SAME RELATES TO H IS OWN TRANSACTION WITH THE BANK, WE BELIEVE THAT NECESSARY NEXUS HAS BEEN ESTABLISHED BETWEEN THE INFORMATION AND FORMATION OF BELIEF THAT THE INCOME HAS ESCAPED ASSESSMENT. WHAT IS THE ULTIMATE SOURCE OF SUCH DEPOSIT AND TO WHAT EXTENT, THE ASSESSEE IS ABLE TO OFFER HIS EXPLANATION AND WHAT WOULD BE THE QUANTUM OF INCOME WHICH WOULD FINALLY BE ASSESSED IS A MATTER OF EXAM INATION DURING THE ASSESSMENT PROCEEDINGS AND THE SAME CANNOT BE THE B ASIS TO CHALLENGE THE OPENING OF THE ASSESSMENT PROCEEDINGS BY ISSUANCE O F NOTICE U/S 148 OF THE ACT. IN THE RESULT, THE GROUND OF APPEAL IS DISMIS SED. 7. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED SUS TENANCE OF ADDITION OF RS 3,29,302/- UNDER THE HEAD SHORT TERM CAPITAL G AINS. 8. IN THIS REGARD, THE ASSESSEE HAS RAISED A PRELIM INARY OBJECTION STATING THAT THE ASSESSMENT WAS REOPENED ON THE GROUND THAT THE ASSESSEE HAS MADE AN INVESTMENT IN TIME DEPOSIT HOWEVER, NO SUCH ADDI TION WAS FINALLY MADE AND THE ADDITION WAS MADE TOWARDS CAPITAL GAINS AND INC OME FROM OTHER SOURCES. IT WAS SUBMITTED THAT THE AO CANNOT ASSESS OTHER ES CAPED INCOME WHERE THE AO DID NOT ASSESS THE INCOME FOR WHICH HE HAS REOPE NED THE ASSESSMENT AND IN RESPECT OF WHICH THE NOTICE U/S 148 WAS ISSUED. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF RANBAXY LABORATORIES LIMITED VS. CIT 336 ITR 136 AND DECISI ONS OF HONBLE BOMBAY HIGH COURT IN CASE CIT VS. JET AIRWAYS (I) LTD. 331 ITR 236 AND CIT VS MOHAMMED JUNED DADANI 355 ITR 172. ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 6 9. FURTHER, ON MERITS, IT WAS SUBMITTED BY THE LD AR THAT THE ASSESSEE HAD SOLD AN IMMOVABLE PROPERTY AT 300, GURUNANAKPURA, J AIPUR DURING THE YEAR UNDER CONSIDERATION ON 20.01.2010 ON WHICH LONG TER M CAPITAL GAINS WERE DISCLOSED IN THE RETURN OF INCOME AND DEDUCTION U/S 54 WAS CLAIMED CONSIDERING PURCHASE OF RESIDENTIAL HOUSE PROPERTY ON 16.03.2010. THE PROPERTY WAS INITIALLY PURCHASED BY APPELLANTS FAT HER, LATE OM PRAKASH CHUGH IN THE YEAR 1967. AFTER THE DEATH OF MR. OM PRAKASH CHUGH IN 1980, THE PROPERTY DEVOLVED UPON HIS LEGAL HEIRS AS UNDER:- KRISHNA KUMARI (WIFE OF MR. OM PRAKASH CHUGH) AJAY KUMAR (SON OF MR. OM PRAKASH CHUGH) VIJAY KUMAR, THE APPELLANT (SON OF MR. OM PRAKASH C HUGH) ANITA KUMARI (DAUGHTER OF MR. OM PRAKASH CHUGH) 10. IT WAS FURTHER SUBMITTED THAT A REGISTERED FAMI LY SETTLEMENT AND RELINQUISHMENT DATED 07.01.2010 WAS ENTERED AMONGST THE FAMILY MEMBERS, WHEREIN KRISHNA KUMARI (MOTHER OF THE ASSESSEE) AND ANITA KUMARI (SISTER OF THE ASSESSEE) RELINQUISHED THEIR RESPECTIVE PORTION IN THE PROPERTY IN FAVOR OF THE APPELLANT AND HIS BROTHER AJAY KUMAR. THE ASSES SEE SOLD HIS PORTION OF THE PROPERTY VIDE REGISTERED SALE DEED DATED 20.01.2010 AND DECLARED LONG TERM CAPITAL GAINS IN RETURN FILED IN RESPONSE TO NOTICE U/S 148. 11. REGARDING THE COST OF ACQUISITION/IMPROVEMENT A ND DEDUCTION CLAIMED U/S 54, THERE IS NO DISPUTE AND THE LD. AO HAS ACCE PTED THEM AFTER DUE VERIFICATION. 12. IT WAS SUBMITTED THAT THE LIMITED CONTROVERSY WHICH AROSE IN THE PRESENT CASE IS WHETHER THE CAPITAL GAINS ON SALE OF PROPER TY IS ENTIRELY LONG TERM CAPITAL GAINS (AS COMPUTED BY THE ASSESSEE IN THE R ETURN FILED U/S 148) OR IS PARTLY LONG TERM CAPITAL GAINS ON APPELLANTS PORTI ON/SHARE IN PROPERTY ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 7 INHERITED FROM FATHER AND PARTLY SHORT TERM CAPITAL GAINS ON PORTION/SHARE OF PROPERTY RECEIVED FROM MOTHER AND SISTER BY WAY OF RELINQUISHMENT WITHOUT CONSIDERATION (AS COMPUTED BY THE LD. AO IN THE IMP UGNED REASSESSMENT ORDER). 13. IN THIS REGARD, IT WAS SUBMITTED THAT RELINQUIS HMENT WITHOUT CONSIDERATION BETWEEN RELATIVES TANTAMOUNT TO GIFT AS HELD BY HONBLE SUPREME COURT IN THE CASE OF KUPPUSWAMY CHETTIAR VS . ASPA ARMUGAM CHETTIAR AND ANOTHER REPORTED IN 1967(001)-SCR-0275 -SC WHEREIN IT WAS HELD THAT TRANSFER OF A PROPERTY BY A RELEASE DEED WITHO UT ANY CONSIDERATION IS A GIFT. THIS JUDGMENT HAS ALSO BEEN REFERRED IN THE C ASE OF TEHMI JIMMY COOPER VS. ITO DECIDED BY PUNE BENCH OF THE TRIBUNAL IN IT A NO.357/PN/2011 DECIDED ON 06.08.2012. 14. IT WAS FURTHER SUBMITTED THAT IN CASE OF RELINQ UISHMENT OF ASSET, COST & PERIOD OF HOLDING OF PREVIOUS OWNER HAS TO BE CONSI DERED WHILE COMPUTING CAPITAL GAINS AND THE LD. A.O. GROSSLY ERRED IN INT ERPRETING THE PROVISIONS OF TAXATION OF CAPITAL GAINS IN CASE OF INHERITED ASSE TS. IT WAS SUBMITTED THAT WHERE THE PROVISIONS OF SECTIONS 2(42A), 47(II), 48 , 49(1) AND 55(2)(B)(II) ARE CUMULATIVELY AND HARMONIOUSLY READ, THEN IN CASE OF SUCCESSION, THE DATE OF ACQUISITION, COST OF ACQUISITION AND PERIOD OF HOLD ING IS TO BE COMPUTED WITH REFERENCE TO THE ACQUISITION OF CAPITAL ASSET BY TH E PREVIOUS OWNER. IF ONLY FOR THE PURPOSE OF COMPUTING INDEXED COST OF ACQUISITIO N, THE DATE OF ACQUISITION BY THE PREVIOUS OWNER IS EXCLUDED, THEN IT WILL LEA D TO ABSURD RESULTS. SUCH INTERPRETATION WILL BE AGAINST THE INTENT AND OBJEC T OF THE ENACTMENT AND WILL BE AGAINST THE OVERALL SCHEME OF TAXATION OF CAPITA L GAINS IN CASE OF INHERITED ASSETS. THE CARDINAL PRINCIPLES OF INTERPRETATION O F STATUTES IS THAT IF LITERAL MEANING OF THE STATUTE LEADS TO AN ABSURDITY, THE S TATUTE SHOULD BE INTERPRETED IN A MANNER WHICH WILL RESULT IN HARMON IOUS INTERPRETATION WHICH ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 8 AVOIDS ABSURDITY AND PROMOTE THE OBJECTIVE OF AN EN ACTMENT. IN THE CASE OF TEHMI JIMMY COOPER VS. ITO DECIDED BY PUNE BENCH (S UPRA), IT WAS HELD THAT IN CASE OF RELINQUISHMENT OF ASSET, PERIOD OF HOLDI NG OF PREVIOUS OWNER HAS TO BE CONSIDERED FOR COMPUTATION OF CAPITAL GAINS AND NOT THE DATE OF RELINQUISHMENT. RELIANCE WAS ALSO BEING PLACED IN CASE OF SMT. MINA DEOGUN VS. ITO REPORTED IN 19 SOT 183 (2008) WHEREIN KOLKA TA BENCH OF THE TRIBUNAL HELD AS UNDER :- THE DATE OF SUCCESSION WILL BE IMMATERIAL IN SUCH C ASES FOR THE PURPOSES OF DETERMINATION OF THE COST OF ACQUISITIO N IN THE HANDS OF THE SUCCESSOR. INDEXATION IS TO BE ALLOWED IN RESPECT OF HOLDING O F THE ASSET AND NOT IN RELATION TO THE INDIVIDUALITY OF THE ASSESSEE. PERIOD OF HOLDING OF THE CAPITAL ASSET IS TO BE TAK EN AS 01.04.1981 AND HENCE COST INFLATION INDEX APPLICABLE FOR F.Y. 1981-82 IS TO BE APPLIED INSTEAD OF THE COST INFLATION INDEX OF THE YEAR OF SUCCESSION. 15. THE LD DR IS HEARD WHO HAS SUBMITTED THAT ONCE THE ASSESSEE HAS EXPLAINED THE SOURCE OF SUCH TIME DEPOSITS AS AMOUN T RECEIVED ON SALE OF THE PROPERTY AND THE SAME HAS BEEN OFFERED TO TAX UNDER THE HEAD CAPITAL GAINS IN HIS RETURN OF INCOME, THERE IS NO BASIS IN PRELI MINARY OBJECTION SO RAISED BY THE LD AR. FURTHER, REGARDING PERIOD OF HOLDING AN D INDEXATION BENEFIT RELATING TO SHARE OF PROPERTY ACQUIRED BY THE ASSESSEE THROU GH RELINQUISHMENT OF RIGHTS BY HIS MOTHER AND SISTER, IT WAS SUBMITTED T HAT SINCE THE FAMILY SETTLEMENT DEED WAS SIGNED ON 7.01.2010 AND THE PRO PERTY WAS LATER SOLD ON 20.01.2010, THE SAME HAS BEEN RIGHTLY BROUGHT TO TA X AS SHORT TERM CAPITAL GAINS. 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. FIRSTLY, REGARDING THE PRELIMINARY OBJ ECTION RAISED BY THE LD AR THAT THE ASSESSMENT WAS REOPENED ON THE GROUND THAT THE ASSESSEE HAS MADE ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 9 AN INVESTMENT IN TIME DEPOSIT HOWEVER, NO SUCH ADDI TION WAS FINALLY MADE AND THE ADDITION WAS MADE TOWARDS CAPITAL GAINS AND INC OME FROM OTHER SOURCES. IT WAS SUBMITTED THAT THE AO CANNOT ASSESS OTHER ES CAPED INCOME WHERE THE AO DID NOT ASSESS THE INCOME FOR WHICH HE HAS REOPE NED THE ASSESSMENT AND IN RESPECT OF WHICH THE NOTICE U/S 148 WAS ISSUED. IN THIS REGARD, WE REFER TO THE ASSESSEES SUBMISSION DATED 8.12.17 FILED BEFOR E THE ASSESSING OFFICER. IN THE SAID SUBMISSION, THE ASSESSEE HAS SUBMITTED THA T HE HAS SOLD A RESIDENTIAL HOUSE PROPERTY FOR RS 13,50,000/- OUT OF WHICH RS 9 50,000/- WAS RECEIVED IN URBAN CO-OPERATIVE BANK LTD AND OUT OF SOME OLD SAV INGS LYING WITH HIM ALONG WITH FINANCIAL HELP FROM THE FAMILY MEMBERS, HE HAS DEPOSITED CASH IN HIS BANK ACCOUNT AND OUT OF THE PAYMENTS SO RECEIVED AN D DEPOSITED, HE HAS INVESTED A SUM OF RS 10 LACS IN TIME DEPOSIT. FURT HER, THE ASSESSEE HAS FILED HIS RETURN OF INCOME IN RESPONSE TO NOTICE U/S 148 WHEREIN HE HAS DISCLOSED CAPITAL GAINS ON THE SALE OF THE PROPERTY AND INTER EST ON TIME DEPOSITS. WE THEREFORE FIND THAT WHERE THE SOURCE OF TIME DEPOSI T HAS BEEN DECLARED BY THE ASSESSEE AS SALE OF THE PROPERTY AND WHERE TRANSACT ION RELATING TO CAPITAL GAINS HAS BEEN OFFERED IN THE RETURN OF INCOME AND ULTIMATELY, BROUGHT TO TAX BY THE ASSESSING OFFICER, THE LATTER IS WELL WITHIN HIS JURISDICTION TO ASSESS SUCH CAPITAL GAINS AS THE SAME HAS BEEN SUO-MOTO OFFERED TO TAX BY THE ASSESSEE IN THE RETURN OF INCOME FILED IN PURSUANCE TO NOTICE U /S 148 AND SECONDLY, WHAT WAS INTENDED TO BE BROUGHT TO TAX IS THE SOURCE OF DEPOSIT OF SUCH TIME DEPOSITS WHICH REMAIN UNEXPLAINED PRIOR TO ISSUANCE OF NOTICE U/S 148 OF THE ACT AND ONCE, THE ASSESSEE HAS OFFERED THE SOURCE O F SUCH DEPOSITS AS CONSIDERATION ON SALE OF PROPERTY TO CAPITAL GAINS TAX IN THE RETURN OF INCOME, THERE IS NO WAY, IT CAN BE HELD THAT THE AO HAS EXC EEDED HIS JURISDICTION IN TAXING THE SAME. SIMILAR IS THE POSITION REGARDING AMOUNT BROUGHT TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. WE THE REFORE DONOT FIND ANY MERITS IN THE CONTENTIONS SO RAISED BY THE LD AR AN D THE SAME CANNOT BE ACCEDED TO. ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 10 17. ON MERITS, THE ISSUE UNDER CONSIDERATION IS WHE THER THE CAPITAL GAINS ON SALE OF PROPERTY IS ENTIRELY LONG TERM OR IS PARTLY LONG TERM ON ASSESSEES PORTION/SHARE IN THE PROPERTY INHERITED FROM HIS FA THER AND PARTLY SHORT TERM ON PORTION/SHARE OF PROPERTY RECEIVED FROM HIS MOTH ER AND SISTER BY WAY OF RELINQUISHMENT WITHOUT CONSIDERATION. 18. THERE IS NO DISPUTE THAT AFTER THE DEATH OF HIS FATHER, THE ASSESSEE GOT 1/4 TH SHARE IN THE PROPERTY AND THEREAFTER, AS PER THE F AMILY SETTLEMENT AND RELINQUISHMENT DEED DATED 7.01.2010, HIS MOTHER AND SISTER RELINQUISHED THEIR RESPECTIVE SHARES IN THE PROPERTY IN FAVOUR OF THE ASSESSEE. THEREFORE, AS ON THE DATE OF THE SALE OF THE PROPERTY, THE ASSESSEE WAS IN POSSESSION OF 65.26 SQ. YDS OF PROPERTY, HALF OF WHICH HAS BEEN R ECEIVED THROUGH INHERITANCE AND OTHER HALF THROUGH RELINQUISHMENT OF RIGHTS BY HIS MOTHER AND SISTER. THERE IS ALSO NO DISPUTE THAT THE PROPERTY WAS ORIG INALLY PURCHASED BY THE ASSESSEES FATHER IN THE YEAR 1967 AND THEREAFTER, IMPROVEMENTS HAVE BEEN CARRIED OUT IN YEAR 1985 AND 2001. THE ASSESSING O FFICER HAS THEREFORE ACCEPTED THE ORIGINAL COST IN THE HANDS OF THE PREV IOUS OWNER (DECEASED FATHER) AND IMPROVEMENTS THERETO. THE INDEXATION B ENEFIT HOWEVER HAS BEEN RESTRICTED TO THE SHARE OF THE PROPERTY INHERITED F ROM HIS FATHER AND WHICH HAS FINALLY BEEN ASSESSED AS LONG TERM CAPITAL GAINS. THE REMAINING HALF SHARE OF THE PROPERTY WHICH HAS BEEN ACQUIRED BY THE ASSESSE E BY WAY OF RELINQUISHMENT ON 7.1.2010 AND THEREAFTER, WHERE TH E PROPERTY HAS BEEN SOLD ON 20.01.2010, THE ASSESSING OFFICER HAS NOT ALLOWE D THE INDEXATION OF SUCH COST OF ACQUISITION AND IMPROVEMENT AND SUCH GAINS HAVE BEEN BROUGHT TO TAX AS SHORT TERM CAPITAL GAINS. IN OUR VIEW, THE RELIN QUISHMENT OF SHARE OF THE PROPERTY IN FAVOUR OF THE ASSESSEE WITHOUT ANY CONS IDERATION PURSUANT TO FAMILY SETTLEMENT DEED AMOUNTS TO TRANSFER OF THE S HARE OF THE PROPERTY THROUGH GIFT. WHERE THE PROPERTY HAS BEEN ACQUIRED THROUGH ONE OF THE MODES AS PRESCRIBED UNDER SECTION 49(1) OF THE ACT WHICH INCLUDES ACQUISITION THROUGH GIFTS, THE CAPITAL GAINS LIABILITY HAS TO B E COMPUTED BY CONSIDERING THAT ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 11 THE ASSESSEE HELD THE SAID SHARE IN THE PROPERTY FR OM THE DATE IT WAS HELD BY THE PREVIOUS OWNER AND THE SAME ANALOGY HAS TO BE A PPLIED IN DETERMINING THE INDEXED COST OF ACQUISITION AND INDEXED COST OF IMPROVEMENT WHICH IS LINKED TO THE PERIOD OF HOLDING SUCH ASSET. IN THE INSTANT CASE, THE PREVIOUS OWNER IS THE DECEASED FATHER OF THE ASSESSEE WHO HA D INITIALLY PURCHASED THE PROPERTY IN THE YEAR 1967, THEREFORE, THE ASSESSEE SHALL BE LIABLE TO TAX ON THE SHARE OF THE PROPERTY, ACQUIRED THROUGH RELINQUISHM ENT OF RIGHTS BY HIS MOTHER AND SISTER, AS LONG TERM CAPITAL GAINS AFTER PROVID ING REQUISITE INDEXATION OF COST OF ACQUISITION AND COST OF IMPROVEMENT ON SIMI LAR LINES AS DONE IN CASE OF SHARE OF PROPERTY ACQUIRED THROUGH INHERITANCE AND WILL BE CHARGEABLE TO TAX AS LONG TERM CAPITAL GAINS. WE FIND THAT SIMILAR V IEW HAS BEEN TAKEN BY THE COORDINATE BENCH IN CASE OF TEHMI JIMMY COOPER (SUP RA) WHEREIN THE RELEVANT FINDINGS READ AS UNDER: 14. IN VIEW OF THE ABOVE DECISION OF THE HON'BLE S UPREME COURT CITED (SUPRA) IT HAS TO BE HELD THAT THE TRANSFER OF THE PROPERTY BY THE RESPECTIVE CO-OWNERS IN FAVOUR OF THE ASSESSEE THRO UGH THE RELEASE DEEDS IN PURSUANCE OF LOVE AND AFFECTION WHICH WERE DULY ATTESTED BY A NOTARY IN PRESENCE OF WITNESSES BEFORE HIM AMOUNTS TO TRANSFER OF THE PROPERTY THROUGH GIFT. 15. WE FIND AS PER THE PROVISIONS OF SECTION 49 WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE UNDER A GIFT OR BY SUCCESSION, INHERITANCE OR DEVOLUTION, THE COST OF ACQUISITION OF THE ASSET SHALL BE DEEMED TO BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PROPERTY ACQUIRED IT, AS INCREASED BY THE COST OF ANY IMPROV EMENT OF THE ASSET INCURRED OR BORNE BY THE PREVIOUS OWNER OR THE ASSE SSEE AS THE CASE MAY BE. THEREFORE, ONCE THE TRANSFER OF THE PROPERT Y THROUGH RELEASE DEEDS ARE HELD AS TRANSFER OF THE PROPERTY BY THE R ESPECTIVE CO-OWNERS THROUGH GIFT THEN THE COST OF ACQUISITION OF THE AS SET SHALL BE DEEMED TO BE THE COST TO THE ORIGINAL CO-OWNERS. ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 12 16. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CI T VS. MANJULA SAHA REPORTED IN (2011) 16 TAXMANN.COM 42 (BOMBAY) AT PA RA 20 TO 24 OF THE ORDER HAS HELD AS UNDER : '20. TO ACCEPT THE CONTENTION OF THE REVENUE THAT T HE WORDS USED IN CLAUSE (III) OF THE EXPLANATION TO SECTION 48 OF THE ACT HAS TO BE READ BY IGNORING THE PROVISIONS CONTAINED IN SECTION 2 OF THE ACT RUNS COUNTER TO THE ENTIRE SCHEME OF THE ACT. SECTION 2 OF THE ACT EXPRESSLY PROVIDES THAT UNLESS THE CONTEXT OTHERWISE REQUIRES, THE PRO VISIONS OF THE ACT HAVE TO BE CONSTRUED AS PROVIDED UNDER SECTION 2 OF THE ACT. IN SECTION 48 OF THE ACT, THE EXPRESSION 'ASSET HELD BY THE ASSE SSEE' IS NOT DEFINED AND, THEREFORE, IN THE ABSENCE OF ANY INTENTION TO THE CONTRARY THE EXPRESSION 'ASSET HELD BY THE ASSESSEE' IN CLAUSE ( III) OF THE EXPLANATION TO SECTION 48 OF THE ACT HAS TO BE CONSTRUED IN CONSONANCE WITH THE MEANING GIVEN IN SECTION 2(42A) OF THE ACT. IF THE MEANING GIVEN IN SECTION 2(42A) IS NOT ADOPTED IN CONSTRUING THE WORDS USED IN SECTION 48 OF THE ACT, THEN THE GAINS ARISING ON TRANSFER OF A CAPITAL ASSET ACQUIRED UNDER A GIFT OR WILL BY OUTSIDE THE PURVIEW OF THE CAPITAL GAINS TAX WHICH IS NOT INTENDED BY A LEGISLATURE. T HEREFORE, THE ARGUMENT OF THE REVENUE WHICH RUNS COUNTER TO THE L EGISLATIVE INTENT CANNOT BE ACCEPTED. 21. APART FROM THE ABOVE, SECTION 55(1)(B)(2)(II) OF THE ACT PROVIDES THAT WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE BY ANY OF THE MODES SPECIFIED UNDER SECTION 49(1) OF THE ACT, NOT ONLY THE COST OF IMPROVEMENT INCURRED BY THE ASSESSEE BUT AL SO THE COST OF IMPROVEMENT INCURRED BY THE PREVIOUS OWNER SHALL BE DEDUCTED FROM THE TOTAL CONSIDERATION RECEIVED BY THE ASSESSEE WH ILE COMPUTING THE CAPITAL GAINS UNDER SECTION 48 OF THE ACT. THE QUESTION OF DEDUCTING THE COST OF IMPROVEMENT INCURRED BY THE PREVIOUS OWNER IS INCLUDED IN DETERMINING THE PERIOD FOR WHICH THE ASSET WAS HELD BY THE ASSESSEE. ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 13 THEREFORE, IT IS REASONABLE TO HOLD THAT IN THE CAS E OF AN ASSESSEE COVERED UNDER SECTION 49(1) OF THE ACT, THE CAPITAL GAINS LIABILITY HAS TO BE COMPUTED BY CONSIDERING THAT THE ASSESSEE HELD T HE SAID ASSET FROM THE DATE IT WAS HELD BY THE PREVIOUS OWNER AND THE SAME ANALOGY HAS ALSO TO BE APPLIED IN DETERMINING THE INDEXED COST OF ACQUISITION. 22. THE OBJECT OF GIVING RELIEF TO AN ASSESSEE BY A LLOWING INDEXATION IS WITHIN A VIEW TO OFFSET THE EFFECT OF INFLATION. AS PER THE CBDT CIRCULAR NO. 636 DATED 31/8/1992 [SEE 198 ITR 1 (ST) A FAIR METHOD OF ALLOWING RELIEF BY WAY OF INDEXATION IS TO LINK IT TO THE PE RIOD OF HOLDING THE ASSET. THE SAID CIRCULAR FURTHER PROVIDES THAT THE COST OF ACQUISITION AND THE COST OF IMPROVEMENT HAVE TO BE INFLATED TO ARRIVE A T THE INDEXED COST OF ACQUISITION AND THE INDEXED COST OF IMPROVEMENT AND THEN DEDUCT THE SAME FROM THE SALE CONSIDERATION TO ARRIVE AT THE L ONG TERM CAPITAL GAINS. IF INDEXATION IS LINKED TO THE PERIOD OF HOL DING THE ASSET AND IN THE CASE OF AN ASSESSEE COVERED UNDER SECTION 49(1) OF THE ACT, THE PERIOD OF HOLDING THE ASSET HAS TO BE DETERMINED BY INCLUDING THE PERIOD FOR WHICH THE SAID ASSET WAS HELD BY THE PREVIOUS O WNER, THEN OBVIOUSLY IN ARRIVING AT THE INDEXATION, THE FIRST YEAR IN WH ICH THE SAID ASSET WAS HELD BY THE PREVIOUS OWNER WOULD BE THE FIRST YEAR FOR WHICH THE SAID ASSET WAS HELD BY THE ASSESSEE. 23. SINCE THE ASSESSEE IN THE PRESENT CASE IS HELD LIABLE FOR LONG TERM CAPITAL GAINS TAX BY TREATING THE PERIOD FOR WHICH THE CAPITAL ASSET IN QUESTION WAS HELD BY THE PREVIOUS OWNER AS THE PERI OD FOR WHICH THE SAID ASSET WAS HELD BY THE ASSESSEE, THE INDEXED CO ST OF ACQUISITION HAS ALSO TO BE DETERMINED ON THE VERY SAME BASIS. 24. IN THE RESULT, WE HOLD THAT THE ITAT WAS JUSTIF IED IN HOLDING THAT WHILE COMPUTING THE CAPITAL GAINS ARISING ON TRANSF ER OF A CAPITAL ASSET ACQUIRED BY THE ASSESSEE UNDER A GIFT, THE INDEXED COST OF ACQUISITION HAS TO BE COMPUTED WITH REFERENCE TO THE YEAR IN WH ICH THE PREVIOUS ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 14 OWNER FIRST HELD THE ASSET AND NOT THE YEAR IN WHIC H THE ASSESSEE BECAME THE OWNER OF THE FIRST'. 17. SINCE MR. MODY HAD HELD THE PROPERTY SINCE 1968 AND SINCE THE CO- OWNERS BY RELEASE DEEDS IN PURSUANCE OF LOVE AND AF FECTION TO THE ASSESSEE HAD RELINQUISHED THEIR RIGHT IN THE PROPER TY IN FAVOUR OF THE ASSESSEE WHICH HAS ALREADY BEEN HELD AS GIFT, THERE FORE, IN VIEW OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT CITED (SU PRA) WE FIND MERIT IN THE SUBMISSION OF THE LEARNED COUNSEL FOR THE AS SESSEE THAT THE COST OF ACQUISITION OF THE PROPERTY SHOULD BE CALCULATED BY TAKING THE VALUE OF THE PROPERTY AS ON 01-04-1981. GROUND OF APPEAL NOS. 3 AND 4 BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. SINCE THE ASS ESSEE SUCCEEDS IN GROUND OF APPEAL NOS. 3 AND 4, THE GROUND OF APPEAL NO. 2 IN THIS APPEAL BECOMES INFRUCTUOUS AND THEREFORE THE SAME I S NOT BEING DECIDED. 19. IN THE RESULT, THE GROUND OF APPEAL IS ALLOWED. 20. IN GROUND NO. 3, THE ASSESSEE HAS CHALLENGED SU STENANCE OF ADDITION OF RS.4,30,000/- AS UNEXPLAINED DEPOSITS IN BANK ACCOU NT. 21. IT WAS SUBMITTED BY THE LD AR THAT THE ASSESSE E HAD RECEIVED CASH GIFTS FROM HIS MOTHER KRISHNA KUMARI (RS.350,000/-), SIST ER ANITA KUMARI (RS.250000/-) AND BROTHER AJAY KUMAR (RS.600,000/-) , WHICH WAS DEPOSITED BY HIM IN HIS BANK ACCOUNT TO THE EXTENT OF RS.708, 000/- OUT OF WHICH THE LD. AO PARTLY ACCEPTED RS.278,000/- FROM BROTHER AS WIT HDRAWAL FROM BANK ACCOUNT AND THE REMAINING BALANCE OF RS.430,000/- W AS TREATED AS UNEXPLAINED AND ADDED TO THE TOTAL INCOME. IT WAS S UBMITTED BEFORE THE LD. A.O. DURING THE ASSESSMENT PROCEEDINGS THAT THE APP ELLANTS BROTHER MR. AJAY KUMAR HAS MADE WITHDRAWALS OF RS.5,78,000/- FROM HI S BANK ACCOUNT (PARA 6.1 OF THE ASSESSMENT ORDER) BUT THE LD. A.O. ALLOW ED CREDIT ONLY OF THE ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 15 WITHDRAWAL OF RS.2,78,000/- (PARA 6.3 OF THE ASSESS MENT ORDER) BUT DIDNT ALLOW CREDIT OF THE WITHDRAWAL OF RS.3,00,000/- MAD E EARLIER ON 08.05.2009. 22. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD FILED AFFIDAVITS CONFIRMING GIFTS FROM THESE RELATIVES BUT THE LD. A O DIDNT MADE ANY INQUIRY AND SIMPLY REJECTED THE AFFIDAVITS BY HOLDING THAT THE ASSESSEE HAS NOT FILED ANY OTHER EVIDENCE IN SUPPORT OF CREDITWORTHINESS/ GENUINENESS/IDENTITY OF OTHER PERSONS. EVEN THE LD. AO FAILED TO CONSIDER T HE REGISTERED FAMILY SETTLEMENT AND RELINQUISHMENT DEED WHEREIN THESE RE LATIVES ALONGWITH THE APPELLANT WERE PARTIES THEREIN. EVEN NOTICES U/S 13 3(6)/131 WERE NOT ISSUED TO THEM FOR FURTHER INQUIRY. IT WAS SUBMITTED THAT NO CREDIT OF PAST SAVINGS AND INHERITANCE RECEIPTS FROM FATHER WAS ALLOWED IN THE CASE OF THE APPELLANT, HIS MOTHER AND HIS SISTER. HIS MOTHER ALSO HAD CASH PROCEEDS OF THE PORTION OF THE PROPERTY SOLD EARLIER AND HIS SISTER HAS WITHDR AWALS FROM HER BANK ACCOUNT. 23. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD DISCHARGED ITS ONUS OF ESTABLISHING THE IDENTITY (PROVED THROUGH THE FAMIL Y SETTLEMENT AND RELINQUISHMENT DEED WHICH WAS REGISTERED, ITR OF MR . AJAY KUMAR, CAPACITY (GIFT AMOUNT IS SMALL) AND GENUINENESS (CLOSE RELAT IVES CAN GIFT AMOUNT, MOREOVER, PROPERTY HAS ALSO BEEN RELINQUISHED DURIN G THE YEAR UNDER CONSIDERATION) AND RELIANCE WAS PLACED ON THE HONB LE RAJASTHAN HIGH COURT DECISION IN CASE OF M/S ARAVALI TRADING CO. VS ITO REPORTED IN (2008) 8 DTR 199. THE ONUS SHIFTED ON THE ASSESSING OFFICER TO P ROVE THAT THE ALLEGED TRANSACTIONS WERE BOGUS, HOWEVER, HE GROSSLY FAILED IN DISCHARGING HIS ONUS. 24. IT WAS FURTHER SUBMITTED THAT THE CONTENTS OF T HE AFFIDAVITS REMAINED UNCONTROVERTED. AN AFFIDAVIT CANNOT SIMPLY BE BRUSH ED ASIDE ON THE BASIS THAT IT IS A SELF SERVING DOCUMENT. ITS CONTENTS HAVE TO BE ACCEPTED AS SUCH UNLESS ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 16 OTHERWISE PROVED. RELIANCE WAS PLACED WAS BEING PLA CED ON THE DECISION IN CASE OF PARAS COTTON CO. VS. CIT XXX TAX WORLD 168 (ITAT, JODHPUR BENCH). 25. THE LD DR SUBMITTED THAT ASSESSEES MOTHER AND SISTER ARE NON- ASSESSEE AND GIFTS MADE OUT OF PAST SAVINGS REMAIN UNVERIFIED. FURTHER, IN RESPECT OF GIFT FROM ASSESSEES BROTHER, THOUGH HE IS AN EXISTING ASSESSEE BUT HAVING LOW INCOME AND THUS HIS CREDITWORTHINESS IS ALSO DOUBTFUL. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LOWER AUTHORITIES AND THE SAME SHOULD BE CONFIRMED. 26. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS DEPOSITED A S UM OF RS 7 LACS IN HIS BANK ACCOUNT AND THE SOURCE OF THE SAME HAS BEEN EX PLAINED AS GIFTS RECEIVED FROM HIS BROTHER, SISTER AND MOTHER AND IN SUPPORT, HAS SUBMITTED AFFIDAVITS FROM HIS FAMILY MEMBERS, FAMILY SETTLEMENT AND RELI NQUISHMENT DEED AND COPY OF RETURN OF INCOME FILED BY HIS BROTHER, SHRI AJAY KUMAR AND HIS BANK STATEMENT. 27. WE FIND THAT AN AMOUNT OF RS 6 LACS HAS BEEN SH OWN AS GIFT RECEIVED BY ASSESSEE FROM HIS BROTHER WHICH IS AN EXISTING INCO ME TAX ASSESSEE AND IN THE AFFIDAVIT SO SUBMITTED, HE HAS EXPLAINED THAT HE HA S GIFTED THE SAID AMOUNT TO THE ASSESSEE FOR PURCHASE OF RESIDENTIAL PROPERTY A ND THE SOURCE OF SUCH MONEY IS INCOME FROM HIS BUSINESS, PAST SAVINGS, ET C. FURTHER, HE HAS EXPLAINED THAT HE HAS WITHDRAWN AN AMOUNT OF RS 5.7 8 LACS FROM HIS BANK ACCOUNT ON 8.5.2009 AND 4.02.2010 AND THE SAME HAS BEEN GIFTED TO THE ASSESSEE. WE THEREFORE FIND THAT THE ASSESSEE HAS SUBSTANTIALLY DISCHARGED THE INITIAL ONUS CAST ON HIM AND IN ABSENCE OF ANY CONTRARY MATERIAL ON RECORD, THE SOURCE OF DEPOSIT TO THE EXTENT OF RS 5.78 LACS IS DULY EXPLAINED. FURTHER, IN RESPECT OF REMAINING DEPOSIT OF RS 1.22 LACS, TH E SOURCE OF THE SAME HAS ITA NO. 584/JP/2019 SHRI VIJAY KUMAR VS. ITO 17 BEEN EXPLAINED AS GIFT RECEIVED FROM ASSESSEES MOT HER AND SISTER SUPPORTED BY THEIR RESPECTIVE AFFIDAVITS. GIVEN THE QUANTUM OF AMOUNT INVOLVED AND THE FACT THAT HOUSEHOLD SAVINGS BY THE WOMEN IN OUR SOC IETY IS A NORM RATHER THAN AN EXCEPTION, WE BELIEVE THAT THE ASSESSEE HAS REAS ONABLY DISCHARGED THE ONUS CAST ON HIM IN TERMS OF EXPLAINING THE NATURE AND SOURCE OF SUCH DEPOSIT AS RECEIVED FROM HIS MOTHER AND SISTER. THEREFORE, THE ADDITION SO SUSTAINED BY THE LD CIT(A) IS HEREBY DIRECTED TO BE DELETED A ND THE MATTER IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE RESULT, THE GROUND OF APPEAL IS ALLOWED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 28/04/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/04/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VIJAY KUMAR, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-4(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 584/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR