Ramesh Kumar, Bangalore V. ITO, Bangalore

ITA 669/BANG/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5514 (ITAT-BANGALORE)
• Duration Of Justice: 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 20-06-2011
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Assessee Lawyers: H N KHINCHA
• Keywords: Unexplained cash credit; Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL BANGALORE BENCH A, BANGALORE BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER (SMC) I.T.A. NO.669(BANG.)/2011 ( ASSESSMENT YEAR : 2008-09) SHRI RAMESH KUMAR, PROP: VIKRAM ELECTRICALS, NO.8, GROUND & FIRST FLOOR, I CROSS, D.K.LANE, BVK IYENGAR ROAD, BANGALORE. APPELLANT VS THE INCOME-TAX OFFICER, WARD-5(3), BANGALORE. RESPONDENT APPELLANT BY : SHRI H.N.KHINCHA, CA RESPONDENT BY : SMT. JACINTA ZIMIK VASHAI, ADDL. CI T O R D E R PER SMT P. MADHAVI DEVI, JM; THIS APPEAL IS BY THE ASSESSEE FOR THE ASSESSMENT Y EAR 2008- 09. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY T HE ORDER OF THE CIT(A) WHO CONFIRMED THE ADDITION MADE BY THE AO U/ S 68 OF THE IT ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF WHOLES ALE AND RETAIL TRADING IN ELECTRICAL GOODS. DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE IT ACT, THE AO PERUSED THE ASSESS EES CAPITAL ACCOUNT AND FOUND THAT THE SAID ACCOUNT IS CREDITED WITH RS.4.00 ITA.NO.669(B)/11 2 LACS UNDER THE HEAD BY GIFT RECEIVED. AS PER THE DETAILS AVAILABLE ON RECORD, THE AO FOUND THAT THE SAID AMOUNT HAS BE EN RECEIVED FROM HIS MOTHER AND ALSO FROM HIS BROTHER AMOUNTING TO RS.3.00 LACS AND RS.1.00 LAC RESPECTIVELY. AS THE ASSESSEE COULD NOT FURNISH CONFIRMATION LETTER FROM HIS MOTHER FOR THE GIFT OF ABOUT RS.3.00 LACS, THE AO MADE ADDITION U/S 68 OF THE IT ACT. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT(A) STATING THAT HIS MOTHER IS 75 YEARS OLD AND HAS BEEN SUFFERING FROM OLD AGE ILLNESS AND THAT SHE HAS GIF TED RS.3.00 LACS TO THE ASSESSEE OUT OF LOVE AND AFFECTION ON THE OC CASION OF ACQUIRING AN IMMOVABLE PROPERTY BY HIM IN THE FY: 2 007-08 AND THAT THE SUM IS GIVEN OUT OF HER SRIDHAN AND SAVI NGS OF THE PAST. HE ALSO PRODUCED A COPY OF THE GIFT DEED IN SUPPORT OF HIS CLAIM. THE CIT(A) HOWEVER, HELD THAT THE ASSESSEE HAS FAIL ED TO PROVE THE CAPACITY OF THE DONOR TO MAKE SUCH A GIFT AND GENUI NENESS OF THE GIFT. HE ACCORDINGLY, DISMISSED THE ASSESSEES APP EAL AND THE ASSESSEE IS IN SECOND APPEAL BEFORE US. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI H.N.KH INCHA, SUBMITTED THAT THE ASSESSEES MOTHER IS AN OLD AGED PERSON, WHO OUT OF LOVE AND AFFECTION HAD GIFTED THIS MONEY TO HER SON TO PURCHASE A IMMOVABLE PROPERTY. HE SUBMITTED THAT T HE ASSESSEE HAILS FROM A BUSINESS FAMILY AND THEREFORE, HIS MOT HER IS CAPABLE ITA.NO.669(B)/11 3 OF HAVING RS.3.00 LACS IN HER POSSESSION WHICH IS H ER SRIDHAN AND ALSO HER PAST SAVINGS. HE ALSO SUBMITTED THAT HIS MOTHER HAVING CONFIRMED THE GIFT BY EXECUTION OF GIFT DEED, IT CA NNOT BE DOUBTED AND THE SAME HAS TO BE CONSIDERED AS GIFT AND NOT A S UNEXPLAINED CASH CREDITS U/S 68 OF THE IT ACT. 5. THE LEARNED DR HOWEVER, RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE H AS FAILED TO PROVE THE GENUINENESS OF THE TRANSACTIONS AND ALSO CREDIT WORTHINESS OF THE DONOR. 6. HAVING HEARD BOTH THE PARTIES AND HAVING CONSIDE RED THEIR RIVAL CONTENTIONS, I FIND THAT THE ASSESSEE H AS CLAIMED TO HAVE RECEIVED AN AMOUNT OF RS.3.00 LACS FROM HIS MOTHER AS GIFT. THE RELATIONSHIP BETWEEN THE DONOR AND DONEE IS MOTHER AND SON AND THEREFORE, THE GIFT GIVEN OUT OF LOVE AND AFFECTION CANNOT BE DOUBTED. THE IDENTITY AND GENUINENESS OF THE TRANSA CTIONS ARE BEING PROVED BY THE ASSESSEE AND THE ONLY THING LEF T IS THE CREDIT WORTHINESS OF THE DONOR, WHICH IS TO BE PROVED. 6.1 AS THE ASSESSEE COULD NOT FURNISH THE GIFT DEED AND THE EVIDENCE IN SUPPORT OF THE CREDIT WORTHINESS OF THE DONOR BEFORE THE AO, I DEEM IT FIT AND PROPER TO REMIT THE ISSUE TO THE FILE OF AO WITH A DIRECTION TO EXAMINE THE CREDIT WORTHINESS O F THE DONOR BY TAKING INTO ACCOUNT THE SOCIAL AND FINANCIAL STATUS OF THE FAMILY ITA.NO.669(B)/11 4 AND AS TO WHETHER IT WAS PROBABLE THAT SHE WOULD PO SSESS SUCH AN AMOUNT OF MONEY OUT OF HER PAST SAVINGS AS CLAIMED BY THE ASSESSEE. THEREFORE, THIS ISSUE IS SET ASIDE TO TH E FILE OF AO, ONLY TO EXAMINE THE CREDIT WORTHINESS OF THE DONOR. 7. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 14 TH JULY, 201. (SMT. P. MADHAVI DEVI) JUDICIAL MEMBER PLACE: BANGALORE DATED: 14-07-2011. COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF(BLORE) BY ORDER AR, ITAT, BANGALORE