Shyamal Kumar Mallick, Bankura V. ITO, Ward - 2, Bankura, Bankura

ITA 621/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87623 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 25-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALOKE NAG
• Assessee Lawyers: D K SEN
• Keywords: Unexplained cash credit; Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER ITA NO. 621 /KOL/ 2011 ASSESSMENT YEAR: 2004 - 05 SHYAMAL KUMAR MALLICK LALBZAR, P.O. & DIST. BANKURA, PIN. 722 101 [ PAN NO.AJNPM 1440 J ] / V/S . INCOME TAX OFFICER, WARD - 2, BANKURA, P.O. KANDUADIHI, DIST. BANKURA, PIN 722 102 / APPELLANT .. / RESPONDENT / BY APPELLANT SHRI D.K. SEN, ADVOCATE / BY RESPONDENT SHRI ALOKE NAG, JCIT, DR / DATE OF HEARING 13 - 01 - 2015 / DATE OF PRONOUNCEMENT 15 - 01 - 2015 / O R D E R PER SHAMIM YAHYA , ACCOUNTANT M EMBER : - THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - DURGAPUR DATED 25 - 02 - 2011 AND PERTAINS TO ASSESSMENT YEAR 2004 - 05. 2. THE GROUNDS OF APPEAL READS AS UNDER: - 1) FOR THAT THE LD. ASSESSING OFFICER, IN CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE MATTER, ERRED IN NON - COMPLIANCE WITH THE DIRECTION OF THE HON BLE ITAT A BENCH, KOLKATA, DATED 07.5.2008. 2) FOR THAT THE LD. C.I.T.(A), DURGAPUR, IN CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE MATTER, ERRED IN CONFIRMING THE ORDER PASSED BY THE LD. ASSESSING OFFICER. ITA NO.621/KAL/2011 A.Y.2004 - 05 SHYAMAL KR. MALLICK V. ITO WD - 2 BNK PAGE 2 3) FOR THAT THE APPELLANT RESERVES HIS RIGHT TO ADD TO, TO ALTER, TO AMEND THE GROUND/S AND TO ADDUCE PAPER/S AND DOCUMENT/S AT THE TIME OF HEARING. 3. IN THIS CASE THE MATTER PE RTAINS TO ADDITION OF 7 LAKH AS UNEXPLAINED CASH CREDIT. THE MATTER WAS ADJUDICATED BY THE TRIBUNAL EARLIER IN ITA NO.435/KOL/2008 VIDE ORDER DATED 07 - 05 - 2008. THE TRIBUNAL IN THE AFORESAID ORDER HAD RESTORED THE MATTER BACK TO THE FILE OF ASSESSING OFFIC ER FOR RE - ADJUDICATION OF AFRESH IN ACCORDANCE WITH LAW , A FTER CONSIDERING ALL THE MATERIAL EVIDENCES INCLUDING INFORMATION RECEIPT FROM THE AO OF THE DONORS OF THE ASSESSEE. IT WAS FURTHER DIRECTED THAT AO SHOULD ALSO ALLOW FURTHER OPPORTUNITY TO THE ASSE SSEE TO PRODUCE FURTHER EVIDENCE, IF ANY, IN SUPPORT OF THE CLAIM OF THE GIFTS. WHEN THE MATTER WAS TAKEN UP BY THE AO IN THE SECOND ROUND AO OBSERVED THAT THE DON O R S IN QUESTION HAD RETURNED INCOME OF VERY MEAGRE AMOUNTS. FURTHER IN ONE CASE, GIFT THOUGH MADE BY CHEQUE WERE SEEN TO BE MADE FROM CASH DEPOSITS MADE ON THE SAME DATE. NONE OF THE ALLEGED DONORS WERE AVAILABLE FOR PERSONAL EXAMINATION. IT WAS ALSO FOUND THAT ALLEGED DONORS HAD FILED RETURNS WHILE THE ASSESSMENT PROCEEDINGS OF THE ASSESSEE WERE UNDER - WAY. IN THESE CIRCUMSTANCES, THE AO HAD ADDED BACK THE GIFTS AS UNEXPLAINED CASH CREDIT. LD. CIT(A) ALSO CONFIRMED THE SAME. 4. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH LD. COUNSEL AND PERUSED THE RECORDS. WE F IND THAT THE PRELIMINARY GRIEVANCE OF THE ASSESSEE THAT AUTHORITIES BELOW HAVE NOT FOLLOWED THE DIRECTIONS OF THE TRIBUNAL IS MISPLACED. THE TRIBUNAL HAD DIRECTED THE AO TO RE - ADJUDICATE OF THE ISSUE AFRESH. IN THIS VIEW OF THE MATTER, WE FIND THAT IT CANN OT BE SAID THAT AUTHORITIES BELOW HAVE FAILED TO FOLLOW THE DIRECTIONS OF THE TRIBUNAL. 6. THE AMOUNT OF GIFT RECEIPT AND THE RETURN INCOME OF THE DONORS AS TABULATED BY THE AO READ AS UNDER: - SL NO NAME OF THE DONOR S/SHRI AMOUNT OF GIFT (IN RS) MOD OF PAYMENT DATE OF PURCHASE OF DRAFT & DRAFT NO. NAME & ADDRESS OF THE BANK FROM WHERE DRAFT WAS PURCHASED ITA NO.621/KAL/2011 A.Y.2004 - 05 SHYAMAL KR. MALLICK V. ITO WD - 2 BNK PAGE 3 1 MAHABIR PD. SHARMA 2,00,000/ - DRAFT 02.05.03 DRAFT NO. 433170 PUNJAB NATIONAL BANK LENIN SARANI BRANCH KOLKATA - 13 2 VIVEK CHAUDHARY 2,00,000/ - DRAFT 08.04. - 3 DRAFT NO.239325 INDIAN BA N K BURRA BAZAR BRANCH KOLKATA 7 3 SNIL KR. JAIN 1,00,000/ - DRAFT 09.04.03 DRAFT NO.240791 PUNJAB NATIONAL BA N K B.R.B.B. ROAD BRANCH KOLKATA - 1 4 MANOJ KR. KHANDELWAL 2,00,000/ - DRAFT 11.04.03 DRAFT NO.239359 PUNJAB NATIONAL BANK B.R.B.B. ROAD BRANCH KOLKATA - 1 NOW WE NOTE THAT ASSESSEE HAS FILED CONFIRMATION OF THE GIFTS. THE DONORS HAVE FILED RETURN OF INCOME. NOW ADVERSE INFERENCE HAS BEEN DRAWN BY THE REVENUE ON THE GROUND THAT THE RETURN OF INCOME IS VERY LOW. WE FURTHER NOTE THAT WITH REGARD TO GIFTS FROM SHRI VIVEK CHAUDHARY, AO HAS MADE FURTHER OBSERVATIONS AS UNDER: - (B) FURTHER, ON PERUSAL OF BANK STATEMENT OF SB A/C NO. 15430 OF INDIAN BANK, BURRA BAZAR BRANCH, KOLKATA OF SHRI VIVEK CHAUDHARY, IT IS NOTED THAT RS.1,00,000/ - WAS DEPOSITED IN CASH IN THE SAID ACCOUNT ON 20.02.2004 AND A CHEQUE FOR RS.1,00,000/ - WAS ISSUED ON THE SAID DATE. AGAIN RS.1,00,000/ - WAS DEPOSITED IN CASH ON 20.03.2004 AND A CHEQUE OF RS.1,00,000/ - WAS ISSUED ON 23.03.2004. E XCEPT THESE TRANSACTION, PEAK OF THE SAID BANK ACCOUNT IS RS.1,487/ - 7 . NOW EXAMINING THE ABOVE, WE FIND THAT AS REGARDS TO SHRI VIVEK CHAUDHARY, THE ASSESSING OFFICER HAS GIVEN A FINDING THAT SUMS WERE DEPOSITED IN CASH JUST BEFORE ISSUANCE OF CHEQUE TO THE ASSESSEE . W HEN THIS ASPECT IS CONSIDERED COUPLED WITH THE FACT THAT ASSESSEE WAS IN RECEIPT OF AN AVERAGE SALARY OF 6,208/ - THE PREPONDERANCE OF THE PROBABILITY INDICATE S THAT THE ALLEGED GIFT BY THE DONOR CANNOT BE ACCEPTED . A PERSON RECEIVING MEREL Y 6,000/ - AS SALARY DEPOSITS OF 2 LAKHS IN HIS BANK ACCOUNT AND IMMEDIATELY THEREAFTER G I VE S A GIFT OF 2 LAKH CANNOT BE ACCEPTED AS GENUINE. HENCE, THE GIFT OF 2 LAKH FROM SHRI VIVEK CHAUDHARY HAS RIGH TLY BEEN TREATED BY AUTHORITIES BELOW AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSEE. ITA NO.621/KAL/2011 A.Y.2004 - 05 SHYAMAL KR. MALLICK V. ITO WD - 2 BNK PAGE 4 8 . AS REGARDS OTHER DONORS, THE ADVERSE INFERENCE HAS BEEN DRAWN ONLY ON THE BASIS THAT THEIR RETURNS OF INCOME WERE LOW . WE FIND THAT THERE IS NO PRESUMPTION THAT PERSONAL RECEIVING SMALL INCOME CANNO T MAKE SMALL SAVINGS. ON THE FACTS OF THIS CASE, WE FIND THAT THE SMALL AMOUNT OF SAVINGS AS CLAIMED BY THE DONORS CANNOT BE REJECTED. IN THESE CIRCUMSTANCES WHEN THE CONFIRMATIONS IS THE RE , IDENTITY IS ESTABLISHED AND RETURN OF INCOME IS ALSO ON RECORD AN D NO ADVERSE FEATURES HAVE BEEN NOTICED IN THEIR BANK ACCOUNT , T HE SMALL AMOUNT GIVEN BY THEM AS GIFT TO THE ASSESSEE CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, EXCEPT FOR THE GIFT FROM SHRI MAHABIR PD. SHARMA, WHICH WE HAVE CONFORMED AS AB OVE , T HE GIFTS FROM OTHER THREE PERSON ADDED BY THE AO AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSEE IS DELETED. 9 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 15 / 0 1 /201 5 SD/ - SD/ - ( MAHAVIR SINGH ) ( SHAMIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEM BER KOLKATA, *DKP - 15 /0 1 /201 5 / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT SHYAMAL KR. MALLICK, LALBAZAR, P.O.& DIST. BANKURA 2 . / RESPONDENT - INCOME TAX OFFICER, WARD - 2, P.O. KENDUADIHI, DIST BANKURA, PIN - 722 102 3 . / CONCERNED CIT 4 . - / CIT (A) 5 . , / DR, ITAT, KOLKATA 6 . / GUARD FILE. BY ORDER/ , /TRUE COPY/ / , ITA NO.621/KAL/2011 A.Y.2004 - 05 SHYAMAL KR. MALLICK V. ITO WD - 2 BNK PAGE 5