Kumari Nancy Duggal, Phagwara V. Income tax Officer, Phagwara

ITA 610/ASR/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8761 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 07-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKAR
• Assessee Lawyers: J S BHASIN
• Keywords: Gift; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (CAMP AT JALANDH AR ) BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.610(ASR)/2013 ASSESSMENT YEAR: 2008-09 KUMARI NANCY DUGGAL, 372, HARGOBIND NAGAR, PHAGWARA. PAN: ADCPN-7142H VS. INCOME TAX OFFICER, WARD-1, PHAGWARA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.S.BHASIN (ADV.) RESPONDENT BY: SH. BHAWANI SHANKAR (DR.) DATE OF HEARING: 19.01.2017 DATE OF PRONOUNCEMENT: 21.02.20 17 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF LD. CIT(A), JALANDHAR, DATED 07.08.2013, FOR ASST. YEAR: 2008-0 9. 2. THE APPEAL OF THE ASSESSEE WAS EARLIER DISMISSED ON MERITS VIDE TRIBUNAL ORDER DATED 28.02.2014, HOWEVER, THE SAID ORDER OF TRIBUNAL WAS RECALLED ON A MISCELLANEOUS APPLICATION FILED B Y ASSESSEE VIDE TRIBUNAL ORDER DATED 20.05.2016 AND THE APPEAL WAS LISTED FOR FRESH HEARING. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT WHILE D ISMISSING THE APPEAL OF THE ASSESSEE, THE LD. CIT(A) HAD IGNORED CERTAIN CRUCIAL FACTS ITA NO.61 0(ASR)/2013 ASST. YEARS: 2008-09 2 AND WHICH EXPLAINED THE CASH IN HAND OF THE ASSESSE E AND IN THIS RESPECT, THE LD. AR INVITED OUR ATTENTION TO WRITTE N SUBMISSIONS AND FROM PAGE 2 ONWARDS HE SPECIFICALLY INVITED OUR ATTENTIO N TO THE FINDINGS OF LD. CIT(A). THE LD. AR SUBMITTED THAT THE LD. CIT(A), H AD SUSTAINED AN ADDITION OF RS.8,00,000/- WHICH WAS MADE TO THE INC OME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED DEPOSIT IN BANK WHEREAS T HE FACT REMAINS THAT THE ASSESSEE HAD DIVORCED FROM HER HUSBAND AND HAD SOLD THE DOWRY ITEMS AND BESIDES THE SALE OF DOWRY ITEMS THE ASSES SEE ALONGWITH HIS FAMILY MEMBER HAD WITHDRAWN CASH FROM BANKS WHICH W ERE OMITTED TO BE TAKEN INTO CONSIDERATION. THE LD. AR, IN THIS RE SPECT READ OUT FROM THE ORDER OF LD. CIT(A). 4. THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORD ER OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE LD. CIT (A) AFTER ADMITTING THE ADDITIONAL EVIDENCE HAD DECIDED THE ISSUE AGAINST T HE ASSESSEE, HOWEVER, THE LD. AR HAS BROUGHT TO NOTICE THAT OUR CERTAIN C RUCIAL FACTS WHICH THOUGH THE LD. CIT(A) HAD MENTIONED IN HIS ORDER BU T WHILE DECIDING THE APPEAL OF THE ASSESSEE HAD NOT CONSIDERED THE SAME. FOR THE SAKE OF COMPLETENESS, THE CRUCIAL FACTS AS POINTED OUT BY L D. AR IN HIS WRITTEN SUBMISSIONS ARE REPRODUCED BELOW. I) THE ID. CIT(A), IN PARA 10 PAGE 15 OF HIS ORDER , WHILE ADMITTING THE ADDITIONAL EVIDENCE FILED BEFORE HIM TO EXPLAIN ITA NO.61 0(ASR)/2013 ASST. YEARS: 2008-09 3 MARRIAGE EXPENSES COLLECTIVELY INCURRED BY FAMILY, AS DETAILED ON PAGE 11 OF HIS ORDER, HELD THUS 'I AM OF THE CON SIDERED OPINION THAT THE AMOUNT OF WITHDRAWALS ARE INTERCONNECTED WITH THAT OF MARRIAGE EXPENSES AS WELL AS DEPOSITS UNDER REFERENCE. THEREFORE THE COPIES OF BANK ACCOUNTS MAINTAINED BY THE FAMILY MEMBERS ARE VERY CRUCIAL AND NECESSARY EVIDENCE IN DECIDING THE APPEAL UNDER REFERENCE....' THIS FINDING OF THE CIT(A), NOT CHALLENGED BY REVENUE, IS CRUCIAL, ACCEPTING THE INTERCONNECTION OF WITHDRAWALS WITH MARRIAGE EXPENS ES AND THE BANK DEPOSIT IN DISPUTE. II) IN PARA 11.4 PG.16, THE ID. CIT(A) TOOK NOT E THAT THE TOTAL FAMILY WITHDRAWALS FOR MARRIAGE EXPENSES WERE OF RS.13,91,000/-. BUT IN THIS PROCESS, HE OMITTED WIT HDRAWAL OF RS.68000/- MADE BY ASSESSEE'S BROTHER (AS NOTED ON PAGE 11 OF HIS ORDER), WHEN HE TOOK NOTE ONLY OF RS.1,24,00 0/- (BEING TWO WITHDRAWALS OF RS.50000 + 74000) AGAINST THREE WITHDRAWALS, ONE MORE OF RS.68000/-. III) FURTHER, WHILE SUMMING UP THE TOTAL WITHDRAW ALS ON PAGE 17, THE ID. CIT(A) ERRED TO REDUCE DEPOSITS OF RS.7 5000/- MADE IN BANK ON 25.7.07 AND 21.11.07, OUT OF TOTAL WITHDRAWALS OF RS.14,66,000/-, THUS LEAVING BALANCE WITHDRAWALS AT RS.13,91,000/-, WHEN THE SAID DEPOSI TS OF RS.75000/- WERE INDEPENDENTLY SURRENDERED IN THE RE TURN FILED FOR WANT OF ANY SOURCE (AS MENTIONED IN OPENI NG PARA ON PG.10 OF CIT(A)'S ORDER). IV) IF THE ABOVE TWO ERRORS ARE CORRECTED, THE AMO UNT AVAILABLE AS PER CIT(A), FOR MARRIAGE AS ALSO FOR MAKING BANK DEPOSIT, WOULD BE RS.13,91,000 + 68000 + 75000 = 15,34,000/- . V) THE ID. CIT(A) FURTHER INFERRED ON PAGE 17-18 T HAT OUT OF ABOVE WITHDRAWALS, THE ASSESSEE'S OWN NET WITHDRAWA LS WERE ONLY RS.9,67,000/ (800000+42000+200000-75000), AND IF SHE PRESUMABLY DEPOSITED RS.8 LACS IN HER BANK ON 30.01.2008, THEN SHE WAS LEFT WITH ONLY RS.1,67,000 /- FOR HER MARRIAGE EXPENSES. THEN HE FURTHER INFERRED THAT CO LLECTIVELY WITH HIS FATHER AND BROTHER'S WITHDRAWALS, THE TOTA L CASH AVAILABLE WAS RS.5,91,000/- , WHICH HE RIDICULED WH ETHER COULD BE ENOUGH TO PERFORM A DAUGHTER'S MARRIAGE, T O MEET EXPENSES ON JEWELLERY, BOOKING OF JC RESORT, CATERI NG AND DOWRY ETC LOOKING TO THE STATUS OF ASSESSEE'S FAMIL Y. HE ALSO WONDERED THAT IF THE ASSESSEE'S MARRIAGE WAS PERFOR MED WITH RS.5.91 LACS, WHAT WOULD HAVE BEEN RECEIVED BY THE ASSESSEE FROM HER IN LAWS AT THE TIME OF HER DIVORCE. VI) WHILE ASSUMING PURCHASE OF JEWELLERY ALSO TO HAVE BEEN MADE OUT OF THE ABOVE FUNDS OF RS.5.91 LACS, THE ID . CIT(A) ALSO FAILED TO NOTICE ASSESSEE'S CLAIM MADE BEFORE HIM, (AS ITA NO.61 0(ASR)/2013 ASST. YEARS: 2008-09 4 APPEARS ON PAGE 7 OF HIS ORDER) THAT ABOUT 50 TOLAS OF OLD FAMILY JEWELLERY WAS GIFTED AT THE TIME MARRIAGE. VII) THEN THE ASSESSEE'S CLAIM OF HAVING RECEIVED SHOGUNS OF (APPROX) RS.2.50 LACS (AS APPEARS ON PAGE 7 OF HIS ORDER) ON MARRIAGE, ALSO ESCAPED THE NOTICE OF CIT(A). VIII) THUS IF THE OMISSIONS OF ID. CIT(A) AS POIN TED OUT ABOVE ARE TAKEN CARE OF, THEN THE TOTAL FAMILY FUNDS AVAI LABLE WERE RS.15,34,000/-, BESIDE RS.2,50,000/- RECEIVED AS SH AGUNS. NOW IF RS.8 LACS WERE DEPOSITED IN BANK, THE BALANC E LEFT FOR MARRIAGE EXPENSES WERE RS.9.84 LACS. BESIDES THIS A MOUNT, ONE ACCENT CAR OF OVER RS.7 LACS AND 50 TOLAS JEWEL LERY OF THE VALUE OF OVER RS.10 LACS WAS ALSO GIFTED. THUS, ARO UND RS.27 LACS HAD GONE INTO MARRIAGE EXPENSES, WHICH PROVES THAT A REASONABLY GOOD AMOUNT WAS SPENT ON DOWRY ARTICLES. IX) THE ID. CIT(A), TO SHOW THE BALANCE FUNDS FOR MARRIAGE EXPENSES AT ABYSMAL LOW, TOOK APART THE ENTIRE AMOU NT OF RS.8 LACS DEPOSITED IN BANK, CONTRARY TO ASSESSEE'S CLAIM THAT NOT THE WHOLE, BUT PARTLY OUT OF WITHDRAWALS AND PA RTLY OUT OF SALE PROCEEDS OF DOWRY ARTICLES HAD GONE INTO THIS BANK DEPOSIT. NOW FROM THE CORRECTED FIGURES PROJECTED A BOVE, IT BEARS OUT THAT THE ASSESSEE COLLECTIVELY HAD AMPLE FUNDS TO SUPPORT ITS TWIN CLAIM OF HAVING MADE THE IMPUGNED DEPOSIT OF RS.8 LAC, OUT OF THE ABOVE WITHDRAWALS AS ALSO OUT OF FUNDS RETRIEVED FROM DISPOSAL OF DOWRY ARTICLES. WE FIND THAT THE MATERIAL FACTS BROUGHT TO OUR NOT ICE INVOLVED VERIFICATIONS OF FIGURES, THEREFORE, WE DEEM IT APP ROPRIATE TO REMIT THIS APPEAL BACK TO THE OFFICE OF LD. CIT(A), WHO SHOULD PASS A FRESH ORDER AFTER CONSIDERING THE SUBMISSIONS MADE BY ASSESSEE AND AFTER HEARING THE ASSESSEE. 6. IN VIEW OF THE ABOVE, THE APPEAL FILED BY ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21 .02. 2017. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:21.02.2017. /PK/ PS. ITA NO.61 0(ASR)/2013 ASST. YEARS: 2008-09 5 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER