Dr. Ashok Kumar Shukla, Faizabad V. Income Tax Officer-II, Faizabad

ITA 707/LKW/2006

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78608 (ITAT-LUCKNOW)
• Duration Of Justice: 8 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-06-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 16-06-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift; Salary income

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.707/LKW/2006 ASSESSMENT YEAR:2002 - 03 DR. ASHOK KUMAR SHUKLA, 364, AWADHPURI COLONY, FAIZABAD. PAN:AUQPS4232A VS. INCOME TAX OFFICER - II, FAIZABAD. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI M. P. MISHRA, ADVOCATE SHRI SHAILENDRA MISHRA, ADVOCATE RESPONDENT BY SHRI MANOJ KUMAR GUPTA, CIT, D.R. DATE OF HEARING 18/06/2014 DATE OF PRONOUNCEMENT 0 4 /07/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - I, LUCKNOW DATED 28/02/2006 FOR ASSESSMENT YEAR 2002 - 2003. THIS APPEAL WAS EARLIER DECIDED BY THE TRIBUNAL AS PER ITS ORDER DATED 27/07/2007 AND THE APPEAL WAS PARTLY ALLOWED. THEREAFTER, THE ASSESSEE MOVED A MISC. APPLICATION VIDE MISC. APPLICATION NO.12/LKW/2009 DATED 22/04/2009 AND THE TRIBUNAL PARTIALLY RECALLED THE EARLIER ORDER OF THE TRIBUNAL DATED 27/07/2007 TO DECIDE THE ISSUE REGARDING RECEIPT OF RS.2 LACS FROM SHRI G. C. SRIVASTAVA AND SHRI RAM SUMER OUT OF TOTAL RECEIPT OF RS.2.08 LAC AS PER GROUND NO. 1 OF THE ASSESSEES APPEAL. SIMILARLY, THE TRIBUNAL RECALLED THE EARLIER ORDER IN RESPECT OF AN ADDITION OF RS.50,000/ - ON ACCOUNT OF NON ACCEPTANCE OF AGRICULTURAL INCOME AS PER GROUND NO. 2 OF ASSESSEES APPEAL. IN ADDITION TO THIS, THE TRIBUNAL ALSO RECALLED THE ISSUE IN RESPECT OF THE ADDITION OF RS. 2.4 8 2 LAC ON ACCOUNT OF THREE GIFT S RECEIVED BY THE ASSESSEE AS PER GROUND NO. 3. HENCE, WE HAVE TO DECIDE AFRESH GROUND NO. 1, 2 & 3 OF THE ASSESSEE. 2. REGARDING GROUND NO. 1, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT COPY OF AFFIDAVIT OF SHRI G. C. SRIVASTAVA IS AVAILABLE ON PAGE NO. 1 & 2 OF THE PAPER BOOK AND CERTIFICATE REGARDING HIS SALARY INCOME IS ALSO AVAILABLE ON PAGE NO. 3 OF THE PAPER BOOK. REGARDING RECEIPT OF RS.1 LAC FROM SHRI RAM SUMER , IT WAS SUBMITTED THAT COPY OF HIS STATEMENT ON OATH RECORDED BY THE ASSESSING OFFICER IS AVAILABLE ON PAGE NO. 4 TO 6 OF THE PAPER BOOK AND THE COPY OF H IS BANK ACCOUNT IS AVAILABLE ON PAGE NO. 7 & 8 OF THE PAPER BOOK. 3. AS AGAINST THIS , THE LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD A ND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IN THE MISC. APPLICATION ORDER, IT IS OBSERVED THAT THERE IS MISTAKE IN THE TRIBUNAL DECISION BECAUSE IT WAS HELD IN THE EARLIER ORDER THAT SHRI G. C. SRIVASTAVA AND SHRI RAM SUMER WERE NOT PRODUCED INSPITE OF THE ASSESSING OFFICER ASKING FOR IT. IT IS NOTED IN THE MISC. APPLICATION ORDER THAT SHRI G. C. SRIVASTAVA DIED WHEREAS SHRI RAM SUMER WAS PRODUCED BEFORE THE ASSESSING OFFICER AND STATEMENT ON OATH WAS RECORDED. HENCE, NOW WE HAVE T O DECIDE AS PER THE MATERIAL AVAILABLE ON RECORD BEING THE AFFIDAVIT OF SHRI G. C. SRIVASTAVA AND STATEMENT OF SHRI RAM SUM E R RECORDED BY THE ASSESSING OFFICER. WHEN WE EXAMINE THE AFFIDAVIT OF SHRI G. C. SRIVASTAVA ALONG WITH THE CERTIFICATE ISSUED BY HI S EMPLOYER IN RESPECT OF HIS SALARY INCOME, WE FIND THAT AS PER THE SALARY CERTIFICATE AND AFFIDAVIT, THE SALARY INCOME OF SHRI G. C. SRIVASTAVA WAS STATED TO BE RS.8,300/ - PER MONTH . NOW THE QUESTION IS WHETHER A PERSON EARNING SALARY INCOME OF RS.8,300/ - PER MONTH CAN ADVANCE 3 A SUM OF RS.1 LAC. WE ALSO FIND THAT AS PER THE SALARY CERTIFICATE ISSUED IN THE YEAR 2005, IT IS NOT COMING OUT AS TO FROM WHICH DATE SHRI G. C. SRIVASTAVA WAS IN SERVICE AND WHAT WAS HIS SALARY INCOME DURING FINANCIAL YEAR 2000 - 2001 AND 2001 - 2002 BECAUSE IN THE SALARY CERTIFICATE, HIS BASIC SALARY WAS STATED TO BE RS.8,300/ - AT THE TIME OF ISSUING THE CERTIFICATE IN THE YEAR 2005. IT IS ALSO NOT COMING OUT AS TO HOW MANY FAMILY MEMBERS WERE DEPENDENT ON SHRI G. C. SRIVASTAVA AND HOW MUCH SAVING HE CAN MAKE OUT OF THIS MEAGER MONTHLY SALARY INCOME OF RS.8,300/ - DURING FINANCIAL YEAR 2005 - 06. CONSIDERING THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE COULD NOT DISCHARGE HIS ONUS OF PROVING CREDITWORTHINESS OF SHRI G. C. SRIVASTAVA. 5. REGARDING RECEIPT OF RS. ONE LAC FROM SHRI RAM SUMER, WE FIND THAT AS PER THE COPY OF PASSBOOK AVAILABLE ON PAGE NO. 8 OF THE PAPER BOOK, A SUM OF RS. ONE LAC WAS DEPOSITED IN HIS BANK ACCOUNT IN CASH IMMEDIATELY BEFORE PURCHASE OF D RAFT FROM THE BANK. AS PER THE STATEMENT RECORDED ON OATH, IT WAS STATED BY HIM THAT HE WAS HAVING 40 BIGHA AGRICULTURAL LAND. IT WAS STATED BY SHRI RAM SUMER THAT HE IS SAVING RS. 3 TO 4 LAC S FROM AGRICULTURAL INCOME IN RESPECT OF THE SMALL AGRICULTURAL HOLDING OF 40 BIGHA ONLY. HE ALSO STATED BEFORE THE ASSESSING OFFICER THAT HIS DEPENDENTS ARE HIS WIFE AND FOUR CHILDREN, WHO ARE STUDYING. REGARDING HIS HOUSE HOLD EXPENSES, IT WAS STATED THAT THE SAME IS AROUND RS.25,000/ - TO RS.30,000/ - PER YEAR. ON THE BASIS OF THIS STATEMENT OF SHRI RAM SUMER, IT IS NOTED BY THE ASSESSING OFFICER ON PAGE NO. 4 OF THE ASSESSMENT ORDER THAT THE ASSESSEE IS HAVING AGRICULTURAL LAND OF 6 BIGHA ONLY BUT SHRI RAM SUMER HAS STATED THAT HE IS HAVING 40 BIGHA AGRICULTURAL L AND. IT IS OBSERVED BY THE ASSESSING OFFICER THAT WHEN THAT PERSON IS HAVING MORE LAND THAN THE ASSESSEE, THEN WHERE IS THE QUESTION THAT THIS PERSON WILL TAKE ASSESSEES LAND IN LIEU OF HANDING OVER HALF OF THE PRODUCT TO THE ASSESSEE. ON THIS BASIS, IT IS OBSERVED BY THE ASSESSING OFFICER THAT THE STATEMENT GIVEN BY THIS PERSON SHRI RAM SUMER DOES NOT APPEAR TO BE TRUE. 4 THEREAFTER, IT IS STATED BY THE ASSESSING OFFICER THAT FROM THESE FACTS, IT COMES OUT THAT THIS PERSON HAS NO CREDITWORTHINESS TO ADVAN CE AN AMOUNT OF RS. ONE LAC TO THE ASSESSEE. FROM THE BANK PASSBOOK OF THIS PERSON, IT IS OBSERVED BY THE ASSESSING OFFICER THAT THIS PERSON HAS NEVER ANY AMOUNT IN HIS BANK ACCOUNT EVEN RS.10,000/ - . THEREFORE, THE ASSESSING OFFICER CAME TO THE CONCLUSIO N THAT THE ASSESSEE HAS DEPOSITED THIS AMOUNT IN THE BANK ACCOUNT OF SHRI RAM SUMER AND TOOK A CHEQUE FROM HIM OF THIS AMOUNT. WE HAVE SEEN THE STATEMENT OF SHRI RAM SUMER, WHICH IS ON PAGE NO. 4 TO 6 OF THE PAPER BOOK AND HIS COPY OF BANK ACCOUNT IS AVAI LABLE ON PAGE NO. 8 OF THE PAPER BOOK AND WE FIND THAT IN FACT , CASH WAS DEPOSITED IN THE BANK ACCOUNT OF SHRI RAM SUMER ON 18/03/2002 AND DRAFT HAS BEEN PURCHASED FROM THE BANK FOR RS. ONE LAC ON 19/03/2002. PRIOR TO THIS, THE MAXIMUM DEPOSIT IN THIS BANK ACCOUNT ON ANY DATE IS BELOW RS.10,000/ - . THE STATEMENT OF T HAT PERSON THAT HE WAS EARNING RS. 3 TO RS. 4 LAC PER YEAR ON LAND HOLDING OF 40 BIGHA IS ALSO NOT ACCEPTABLE BECAUSE FROM THE LAND HOLDING OF 40 BIGHAS , IT IS NOT POSSIBLE TO EARN RS. 3 TO RS.4 LAC IN ONE YEAR PARTICULARLY IN THAT PERIOD . CONSIDERING ALL THESE FACTS, EVEN AFTER CONSIDERING THIS STATEMENT OF SHRI RAM SUM E R AND HIS PASSBOOK, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE WAS NOT ABLE TO ESTABLISH THE CREDITWORTHINESS OF SHRI RAM SUMER. 6. AS PER ABOVE DISCUSSION, WE FIND THAT FOR BOTH THESE ISSUES, THE ASSESSEE COULD NOT ESTABLISH THE THREE INGREDIENTS I.E. IDENTITY, CREDITWORTHINESS OF THE CREDITORS AND GENUINE OF THE TRANSACTIONS. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) WITH REGARD TO THE ISSUE INVOLV ED IN GROUND NO. 1 OF THE ASSESSEES APPEAL. GROUND NO. 1 OF THE ASSESSEE IS REJECTED. 7. REGARDING GROUND NO. 2, WE FIND THAT AS PER PARA 13 OF THE TRIBUNAL ORDER IN MISC. APPLICATION ORDER , IT WAS HELD BY THE TRIBUNAL THAT IN THE ORIGINAL ORDER OF THE TRIBUNAL, THE TRIBUNAL DID NOT CONSIDER THE EVIDENCE AVAILABLE ON 5 PAGE NO. 17 ABOUT SALE OF AGRICULTURAL PRODUCE WHILE ARRIVING AT THE DECISION. NOW WE ARE CONSIDERING THIS PAGE NO. 17 ALSO. ON THIS PAGE , WE FIND THAT IT WAS SUBMITTED BY THE LEARNED A.R. OF THE ASSESSEE BEFORE THE ASSESSING OFFICER THAT THE ASSESSEE HAS SOLD AGRICULTURAL PRODUCE FOR RS.13,000/ - , RS.12,000/ - , RS.19,500/ - , RS.17,650/ - AND RS.15,000/ - TOTALING RS.76,150/ - . THE ASSESSEE HAS GIVEN NAMES OF FIVE PERSONS TO WHOM THESE PRODUCTS ARE STATED TO BE SOLD I.E. SHRI BAL KISHAN, SHRI SANJAY, SHRI ARUN, SHRI SIYA RAM AND SHRI ADHAREY. WE FIND THAT THE ASSESSING OFFICER HAS ALSO NOTED THESE SALE FIGURES ON PAGE NO. 4 OF THE ASSESSMENT ORDER BUT THEREAFTER , HE HAS OBSERVED THAT AS PER KHAS RA FILED BY THE ASSESSEE BEFORE HIM, THE ASSESSEE HAS STATED THAT THE ASSESSEE HAS GROWN DHAN, SUGARCANE, ARHAR AND WHEAT. THE ASSESSING OFFICER CONCLUDED THAT BECAUSE OF THIS, IT CANNOT BE ACCEPTED THAT THE ASSESSEE HAS GROWN VEGETABLES AND SOLD IT. REG ARDING THE CLAIM OF THE ASSESSEE IN RESPECT OF SALE OF MANGO OF RS.19,500/ - AND RS.17,650/ - , IT IS STATED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE REGARDING THE POSSESSION BY THE ASSESSEE OF ANY MANGO ORCHARD. IN THIS REGA RD, THE ASSESSING OFFICER HAS ALSO OBSERVED THAT THE ASSESSEE HAS FILED STATEMENT IN WHICH THERE IS MENTION OF HAVING 25 TREES OF MAHUA. REGARDING THE STATEMENT OF SHRI ARUN AND SHRI SIYA RAM, WHO HAVE STATED TO HAVE PURCHASED MANGO, THE ASSESSING OFFICER OBSERVED THAT SINCE THE ASSESSEE HAS NOT ESTABLISHED THAT HE OWNS ANY MANGO ORCHARD, THESE STATEMENT S OF SHRI ARUN & SIYA RAM ARE NOT RELIABLE. CONSIDERING ALL THESE FACTS, THE ASSESSING OFFICER HELD THAT UNDER THESE FACTS, THE ASSESSEES CLAIM OF HAVING AGRICULTURAL INCOME IS ACCEPTABLE TO THE EXTENT OF RS.40,000/ - PER ANNUM AND ON THIS BASIS , HE ACCEPTED RS.40,000/ - AND REJECTED THE CLAIM FOR BALANCE AMOUNT OF RS.50,000/ - . BEFORE US , LEARNED A.R. OF THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE ON RECORD TO SHOW THAT ANY WRONG FACTS HAVE BEEN MENTIONED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER PARTICULARLY THIS THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE THAT HE WAS G ROW ING 6 AND SELLING VEGETABLES AND THAT THE ASSESSEE WAS HAVING ANY MANGO ORCH ARD. HENCE, ON THIS ASPECT ALSO, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT(A) EVEN AFTER CONSIDERING PAGE NO. 17. ACCORDINGLY GROUND NO. 2 IS ALSO REJECTED. 8. REGARDING GROUND NO. 3, WE FIND THAT ON THIS ASPECT, IT IS OBSERVED BY THE TRIBUNAL IN THE MISC. APPLICATION ORDER THAT THE TRIBUNAL HAS NOT CONSIDERED THIS FACT THAT THE DONOR SHRI UDAY NARAYAN IS REAL ELDER BROTHER OF THE ASSESSEE AND SECOND DONOR SMT. AUTARI DEVI IS REAL AUNT OF THE ASSESSEE AND THE THIRD DONOR SHRI SURAJ DEV IS NEPHEW OF THE ASSESSEE. NOW WE CONSIDER THESE ASPECTS ALSO. WITH REGARD TO ACCEPTING THE CLAIM OF THE ASSESSEE REGARDING RECEIPT OF GIFT, THIS IS A VITAL ASPECT THAT WHETHER THE DONOR IS HAVING ANY RELATION WITH THE DONE BUT MERELY BECAUSE THE DONOR IS HAVING RELATION WITH THE ASSESSEE, THE CLAIM OF THE GIFT CANNOT BE ACCEPTED UNLESS THE ASSESSEE IS ABLE TO ESTABLISH THE CREDITWORTHINESS OF THE ALLEGED DONOR. IN THIS REGARD, OUR ATTENTION WAS DRAWN TO PAGE NO. 21 OF THE PAPER BOOK TO SHOW THE BANK STA TEMENT F ROM WHICH IT IS CLAIMED THAT HE HAS GIVEN GIFT OF RS. ONE LAC. WE ALSO FIND THAT THERE IS CASH DEPOSIT OF RS.1,00,325/ - ON 11/08/2001 AND ON THE SAME DATE , A DRAFT HAS BEEN PURCHASED FOR RS. ONE LAKH WITH A COMMISSION OF RS.325/ - . IN ADDITION TO THAT , THERE IS NO EVIDENCE BROUGHT ON RECORD REGARDING CREDITWORTHINESS OF SHRI UDAY NARAYAN AND THEREFORE, MERELY FOR THIS REASON THAT SHRI UDAY NARAYAN IS HAVING A RELATION WITH THE ASSESSEE, THE CLAIM OF THE GIFT CANNOT BE ACCEPTED. 9. FOR THE SECOND GIFT OF RS. ONE LAC FROM SMT. AUTARI DEVI, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE GIFT DECLARATION IS AVAILABLE ON PAGE NO. 25 OF THE PAPER BOOK AND ON PAGE NO. 26 OF THE PAPER BOOK IS THE COPY OF BANKERS CHEQUE ISSUED ON 22/03/2002 BY CENTRAL BANK OF INDIA. THEREAFTER, HE POINTED OUT THAT THE AFFIDAVIT OF SMT. AUTARI DEVI IS ON PAGE NO. 28 OF THE PAPER BOOK. WE FIND THAT CASH OF RS.1,00,325/ - W AS DEPOSITED ON 7 22/03/2002 AND ON THE SAME DATE , A BANKERS CHEQUE OF RS. ONE LAKH WAS ISSUED AND BANK CHARGES OF RS.325/ - WAS PAID. LEARNED A.R. OF THE ASSESSEE ALSO DRAWN OUR ATTENTION TO PAGE NO.30 & 31 WHERE PHOTOCOPY OF STATEMENT RECORDED BY ASSESSING OFFICER IS AVAILABLE. AS PER THIS STATEMENT, WE FIND THAT IN REPLY TO QUESTION NO. 2, IT WAS STATED THAT SHE IS HAVING 45 BIGHAS AGRICULTURAL LAND. SH E HAS ALSO STATED IN REPLY TO QUESTION NO. 8 THAT SHE IS HAVING AGRICULTURAL INCOME OF RS. 2 TO 2.5 LAC PER YEAR. BUT IN ADDITION TO THIS STATEMENT, NOTHING HAS BEEN BROUGHT ON RECORD IN SUPPORT OF THIS CONTENTION SUCH AS KHASRA /KHATAUNI AND COPY OF SALE BILL ETC. OR ANY EVIDENCE REGARDING SALE OF AGRICULTURAL PRODUCE BY SMT. AUTARI DEVI. IN THE ABSENCE OF ANY SUCH EVIDENCE AND IN VIEW OF CASH DEPOSITED IN HER BANK ACCOUNT, THE CREDITWORTHINESS OF THIS DONOR IS ALSO NOT ESTABLISHED . 10. REGARDING THIRD GIFT OF RS.48,000/ - OF SHRI SURAJ DEV, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE GIFT D ECLARATION IS AVAILABLE ON PAGE NO. 32 OF THE PAPER BOOK AND THE COPY OF BANKERS CHEQUE IS AVAILABLE ON PAGE NO. 33 OF THE PAPER BOOK. THEREAFTER, HE SUBMITTED THAT ON PAGE NO. 34 TO 36 IS COPY OF HIS STATEMENT RECORDED BY THE ASSESSING OFFICER. WE FIND THAT IN THIS STATEMENT , IT WAS STATED BY HIM THAT HE IS HAVING AGRICULTURAL LAND OF 20 BIGHA. HE HAS ALSO STATED IN THE STATEMENT THAT HE IS HAVING KHATAUNI WHICH HE WILL GIVE AFTERWARD BUT THE COPY OF KHATAUNI HAS NOT BEEN BROUGHT BEFORE US. HE HAS ALS O STATED THAT HE IS HAVING HOUSE HOLD EXPENSES OF RS.25,000/ - PER ANNUM . HE HAS ALSO STATED THAT HE IS STILL TO MARRY HIS YOUNGER DAUGHTER. IN REPLY OF A QUESTION , HE STATED THAT HIS ANNUAL SAVING IS RS.50,000/ - . NOW THE QUESTION IS THAT A PERSON HAVING ANNUAL SAVING OF RS.50,000/ - AND ON WHICH THERE IS RESPONSIBILITY OF MARR Y ING HIS YOUNGER DAUGHTER, WHETHER HE WILL GIVE A GIFT OF RS.48,000/ - TO HIS UNCLE. IN OUR CONSIDERED OPINION, UNDER THESE FACTS, THIS CLAIM OF GIVING GIFT TO HIS UNCLE BY SHRI SURA J DEV IS BEYOND HUMAN PROBABILITY AND HENCE IM PROBABLE. THEREFORE , THIS CLAIM IS ALSO NOT 8 ACCEPTABLE. HENCE, ON THIS ISSUE ALSO, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED WI TH REGARD TO THESE THREE GROUNDS AND THE TRIBUNAL DECISION FOR OTHER GROUNDS REMAINS THE SAME. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 4 /07/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR