Supratik Banerjee, Burdwan V. ACIT, CIR-SURI, Birbhum, Birbhum

ITA 600/KOL/2014

• Counselvise Citation: 60023514 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-04-2014
• Court: TRIBUNAL
• Department Lawyers: MD GHAYASUDDIN JCIT LD
• Assessee Lawyers: SHUVO CHAKRABORTY LD
• Keywords: Gift
• Section: 68; 143(3)

Judgement Text

ITA NO . 600/ /KOL/1 4 SMC - MVS SUPRATIK BANERJEE 1 IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH: KOLKATA BEFORE HON BLE SRI MAHAVIR SINGH, JM I.T.A NO . 600 /KOL/201 4 A.Y 200 7 - 08 SUPRATIK BANERJEE V S. A C I T CIR CLE - SURI, BI RBHUM PAN: A DCPB 2184K ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT/ASSESSEE: SHRI SHUVO CHAKRABORTY, ADVOCATE, LD.AR FOR THE RESPONDENT/DEPARTMENT : MD. GHAYASUDDIN, JCIT / LD. SR. DR DATE OF HEARING: 31 - 07 - 2015 DATE OF PRONOUNCEMENT : - 08 - 201 5 10/09/2015 ORDER TH IS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF LD. C IT(A) , KOLKATA IN APPEAL NO. 147 /CIT(A) /ASL/A CIT/CIR - SURI/BWN/09 - 10 DATED 28 - 02 - 2014. ASSESSMENT WAS FRAMED BY A CIT, CIRCLE - SURI, BUDWAN (HEREINAFTER REFERRED AS AO) FOR THE ASSESSMENT YEAR 200 7 - 08 U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 2 9 - 12 - 2009 . 2. T HE ONLY ISSUE RAISED BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A) CONFIRMING THE ADDITION MADE BY AO ON ACCOUNT OF FRESH CAPITAL INTRODUCTION OF RS. 8 L ACS OUT OF THE GIFT RECEIVED FROM WIFE , BY INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT. 3 . BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE INTRODUCED A SUM OF RS. 8 LA CS AS CAPITAL IN HIS PROPRIETARY CONCERN. THE SOURCES OF WHICH WERE SUBJECTED TO VERIFICATION BY THE AO IN THE ASSESSMENT PROCEEDINGS. THE ASSE SSEE STATED THAT HE WAS IN RECEIPT OF A GIFT FROM HIS WIFE TO THE EXTENT OF R S. 10 LACS AND THE SAME WAS USED AS A SOURCE FOR CAPITAL INTRODUCTION IN THE PROPRIETARY CONCERN. IN SUPPORT OF T HIS, THE ASSESSEE SOUGHT TO PRODUCE AFFIDAVIT FROM HIS WIFE E XPLAINING THE SOURCES OF SAID CAPITAL ARISING OUT OF SALE OF GOLD ORNAMENTS OF HIS WIFE. THE ASSESSEE FURNISHED COPIES OF IT RETURNS AND STATEMENT OF TOTAL INCOME OF HIS WIFE BEFORE THE AO. THE AO DISBELIEVED THE FACT OF RECEIPT OF GIFT FROM WIFE AS T HE ASSESSEE HAD NOT FURNISHED THE BALANCE SHEET OF HIS WIFE AND BANK STATEMENT OF THE WIFE AND NO EVIDENCE FOR SALE OF GOLD ITA NO . 600/ /KOL/1 4 SMC - MVS SUPRATIK BANERJEE 2 ORNAMENTS BY THE WIFE WAS FURNISHED BY THE ASSESSEE. AGGRIEVED , ASSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED CIT(A) , WHO U PHELD THE DECISION OF THE AO WITHOUT ADDUCING ANY REASONS. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THIS HONOURBLE TRIBUNAL. 4 . SHRI SHUVO CHAKRABORTY, ADVOCATE, THE LEARNED AUTHORISED REPRESENTATIVE [A/R] APPEARED ON BEHALF OF THE ASSESSEE AND SHR I MD. GHAYAS UDDIN, JCIT, THE LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE [DR] APPEARED ON BEHALF OF THE REVENUE. THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE ARGUED THAT THE ASSESSEE HAD DULY DISCHARGED HIS ONUS COMPLETELY IN TERMS OF SECTION 68 OF THE A CT IN RESPECT OF GIFT RECEIVED BY HIM FROM HIS WIFE. HE ALSO SUBMITTED A PAPER BOOK CONTAINING PAGES 1 - 48 AND STATED THAT THE SAME ARE PART OF THE RECORDS OF THE LOWER AUTHORITIES. IN RESPONSE TO THIS, THE LEARNED DR HAS VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 5 . I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND THAT THE ASSESSEE HAD INTRODUCED CAPITAL IN HIS CAPITAL ACCOUNT. TO EXPLAIN THE SAME HE STATED THAT SUM OF R S. 8 LACS WAS ON ACCOUNT OF GIFT RECEIVED FROM HIS WIFE. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE OF GIFT OF R S. 8 LACS RECEIVED FROM HIS WIFE. IN TURN THE ASSESSEE EXPLAINED THAT HIS WIFE HAS SOLD HER GOLD ORNAMENTS. OUT OF THE SALE PROCEEDS , SUM OF RS. 8 LACS WAS RECEIVED. WHEN THE AO AND THE CIT(A) BOTH REQUIRED THE ASSESSEE TO PRODUCE THE EVIDENCE ON SALE OF GOLD ORNAMENTS, THE ASSESSEE HAS FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF THE SAME . THE IMMEDIATE SOURCE OF RS. 8 LACS THE ASSESSEE IS UNABLE TO PROVE THE SAME. THE ASSESSEE HAS RECEIVED THIS GIFT IN CASH AND SOURCE OF THE SAME IS NOT EXPLAINED. NO DOUBT THE ASSESSEE HAS PRODUCED AFFIDAVIT, IT RETURN AND STATEMENT OF TOTAL INCOME , B UT HE FAILED TO PRODUCE EVIDENCE OF SALE OF GOLD ORNAMENTS BY HIS W IFE AS CLAIMED BY HI M . EVEN THE GENUINENESS OF THE TRANSACTION IS NOT PROVED FOR THE REASON THAT THE AMOUNT IS RECEIVED IN CASH AND NOT BY CHEQUE. THE ASSESSEE IS UNABLE TO PROVE THE SALE OF GOLD ORNAMENTS BY ANY COGENT EVIDENCE. IT IS ALSO SEEN FROM THE MEMO OF INCOME OF WIFE, SMT. BARNALI BANERJEE, SHE HAS NOT OFFERED ANY CAPITAL GAINS ON SALE OF JEWELLERY. HENCE, THE CREDITWORTHINESS O F THE TRANSACTION I.E IMMEDIATE SOURCE OF THE TRANSACTION REMAINS UNEXPLAINED. SECTION 68 OF THE ACT CLEARLY PROVIDES THREE INGREDIENTS NAMELY IDENTITY OF THE PARTY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE PARTY IS TO BE PROVED FOR A CREDIT ENTRY TO BE EXPLAINED OR NOT. ITA NO . 600/ /KOL/1 4 SMC - MVS SUPRATIK BANERJEE 3 IN SUCH CIRCUMSTANCES, I AM OF THE VIEW THAT THIS TRANSACTION IN THE ABSENCE OF PROOF OF SALE OF GOLD ORNAMENTS REMAINS UNEXPLAINED. ACCORDINGLY, I UPHOLD THE ADDITION. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 08 - 2015 10 /9/2015 SD/ - DATED : 08 - 2015 [ MAHAVIR SINGH, JUDICIAL MEMBER ] *PP /SR.P.S. 10/09/2015 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT - SHRI SUPRATIK BANERJEE C/O SHUVO CHAKRABORTY, ADVOCATE, 151 NATUN PALLY (BESIDE KRISHNA KALI S HOUSE, NEAR BANKA BRIDGE) BURDWAN - 713101. 2 RESPONDENT : ASSTT . COMMISSIONER OF INCOME TAX, CIR - SURI, AAYKAR BHAWAN, LALKUTHIR PARA, PO DUTI, DIST: BIRBHUM PIN 713101. 3 . THE CIT, 4 . THE CIT(A), KOLKATA 5 . DR, KOLKATA BENCHES, KOLKAT A TRUE COPY, / BY ORDER A SSTT. REGISTRAR