Sri Anjan Kumar Dey, Burdwan V. I.T.O., Ward-1(3), Burdwan

ITA 755/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0862 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 11-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA JCIT LD
• Assessee Lawyers: AKKAL DUDHEWALA FCA LD
• Keywords: Gift
• Section: 44AD; 201

Judgement Text

1 ITA NO. 755/KOL/2019 AY ANJAN KUMAR DEY IN THE INCOME TAX APPELLATE TRIBUNAL C (SMC KOLKATA [BEFORE SHRI A. T. VARKEY, JM ] I .TA NO. 7 55 /KOL/201 9 A.Y 201 4 - 15 S RI ANJAN KUMAR DEY PAN: ADVPD6702A VS. I.T.O. WARD 1(3), BURDWAN APPELLANT RESPONDENT DATE OF HEARING 0 4 - 03 - 2020 DATE OF PRONOUNCEMENT 05 . 06. 20 20 FOR THE APPELLANT SHRI AKKAL DUDHEWALA, FCA, LD.AR FOR THE RESPONDENT SHRI JAYANTA KHAN RA , JC IT, LD.DR ORDER TH IS APPEAL I S PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. C I T (APPEALS) , BURDWAN DATED 28 - 11 - 2018 FOR THE ASSESSMENT YEAR (A.Y) 20 1 4 - 15 . 2. THE SOLE GROUND OF APPEAL RAISED BY THE ASSESSEE IS AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 20,06,497/ - MADE BY THE AO. 3. BRIEF FACTS OF THE CASE ARE THAT THE AO NOTED THAT THE ASSESSEE SUBMITTED HIS RETURN OF INCOME FOR THE AY UNDER CONSIDERATION DISCLOSING TOTAL INCOME OF RS. 2,14,393/ - . THE CASE WAS SELECTED FOR LIMITED SCRUTINY UNDER CASS. THE AO NOTES THAT THE ASSESSEE IS ENGAGED IN RETAIL TRADING OF POTATO AND DISCLOSED THE INCOME U/S. 44AD OF THE INCOME - TAX ACT, 1961 ( IN SHORT, THE ACT) . THE AO NOTES THAT THE ASSESSEE HAD MADE CASH DEPOSITS IN HIS VARIOUS BANK ACCOUNTS IN ALLAHABAD BANK (A/C NO. 50195856534 ) & UNITED BANK OF INDIA (A/C NO. 0 54010127400). SO HE ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSITS TO THE TUNE OF RS. 20,06,497/ - . THE ASSESSEE REPLIED THAT HE BELONGS TO A JOINT FAMILY COMPRISING OF 10 (TEN) BROTHERS AND THEY HAD SOLD THEIR INHERITED PROPERTY IN THE YEAR 20 06 - 07 VIDE 18 (EIGHTEEN) SALE DEEDS STARTING (DATE OF REGISTRATION OF SALE ) FROM 01 - 07 - 2005 TO 06 - 02 - 2006. THE SALE DEEDS AND NAME OF BUYERS OF THE PROPERTIES HAVE BEEN SHOWN BY THE AO IN A CHART 2 ITA NO. 755/KOL/2019 AY ANJAN KUMAR DEY REPRODUCED BY HIM AT PAGE - 2 OF THE ASSESSMENT ORDER. ACCO RDING TO THE ASSESSEE TOTAL SALE CONSIDERATION FROM SALE OF ANCESTRAL PROPERTIES WAS KEPT IN SAFE CUSTODY BY HIS ELDER BROTHER OF THE FAMILY IN THE HOUSE CHEST. THE ASSESSEE RECEIVED AS HIS SHARE FROM THE SALE PROCEEDS OF THIS ANCESTRAL AGRICULTURAL LA ND TO THE TUNE OF RS.9,62,500/ - . 4. THE ASSESSEE ALSO CLAIMED THAT HIS MOTHER, SMT. PRATIMA D EY MADE A GIFT OF RS. 7 ,00,000/ - IN CASH ON 20 - 04 - 2013 AND SUBMITTED A N OT A RIAL A FFIDAVIT DT. 26 - 08 - 2016 OF HIS MOTHER IN SUPPORT OF THIS CLAIM. THE AO NOTES THAT SHE, BEING A S ENIOR CITIZEN, WAS HAVING AN ACCOUNT IN THE ALLHABAD BANK AND SHE WAS HABITUATED TO BANKING TRANSACTION. SO ACCORDING TO AO HER EXPLANATION THAT SHE KEPT RS. 7 ,00,000/ - IN HER FAMILY CHEST CANNOT BE BELIEVED. THEREFORE, THE AO TREATED THE SUM OF RS. 7,00,000/ - A S BOGUS. 5. REGARDING T HE BALANCE AMOUNT OF RS. 3,37,500/ - , T HE ASSESSEE EXPLAINED THAT IT IS CASH SHOWN IN REGULAR DISCLOSED ITR FILED EARLIER. HOWEVER, ASSESSEES EXPLANATION ABOUT THE SOURCE OF MONEY TO THE TUNE OF RS. 20,06 ,469/ - WAS DISBELIEVED BY THE AO AND HE MADE THE ADDITION OF RS. 20,06,497/ - . AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO WAS PLEASE D TO CONFIRM THE SAME. AGGRIEVED, THE ASSESSEE IS BEFORE ME. 6. HAV E HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. THE ISSUE BEFORE ME IS ABOUT THE EXP LANATION OF ASSESSEE REGARDING CASH OF RS. 20,06,469/ - WHICH WAS FOUND DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE, WHICH HAS BEEN DISBELIEVED BY THE AUTHORITIES BELOW. DURING THE HEARING BEFORE ME , THE LD. AR OF ASSESSEE BROUGHT TO MY NOTICE THAT IN THIS YEAR THE ASSESSEE ASKED FOR HIS SHARE OF SALE CONSIDERATION FROM THE SALE OF ANCESTRAL AGRICULTURAL PROPERTY BECAUSE HE NEEDED MONEY TO GET HIS SON S ADMISSION IN THE VICTORIA UNIVERSITY , MEL BOURNE, AUSTRALIA. THEREFORE, HE WANTED TO RAISE THE FUNDS FOR HIS SONS HIGHER STUDIES. ACCORDING TO THE LD. AR, THE SALE CONSIDERATION OF ANCESTRAL AGRICULTURAL PROPERTY TOOK PLA C E IN AY 2006 - 07 AND THE MONEY RECEIVED FROM THIS TRANSACTION WAS NOT DIV IDED BETWEEN THE BROTHERS SINCE IT WAS KEPT SAFELY IN THE HOME CHEST . AT THE TIME OF SALE OF IMMOVABLE PROPERTY, I T WAS AGREED UPON BETWEEN THE FAMILY MEMBERS THAT WHEN THERE IS A NECESSITY , SHARE (OF SALE CONSIDERATION OF THE SAID LAND ) WILL BE DISB URSED . SINCE IN THIS AY , NECESSITY AROSE AND THE ASSESSEE HAD TO RAISE THE FUNDS HE REQUESTED FOR HIS SHARE OF CONSIDERATION FROM THE 3 ITA NO. 755/KOL/2019 AY ANJAN KUMAR DEY SALE OF ANCESTRAL AGRICULTURAL IMMOVABLE P ROPERTY AND H E RECEIVED AS PART OF HIS SHARE OF SALE CONSIDERATION AN AMOUNT OF RS. 9,62,500/ - , WHICH THE ASSESSEE DEPOSITED IN HIS BANK ACCOUNT. IN RESPECT OF THIS EXPLANATION, I NOTE THAT THE ASSESSEE HAD FILED ALL SALE DEEDS PERTAINING TO THE SALE OF AGRICULTURAL LAND (ANCESTRAL PROPE R TY ) . DETAILS OF WHICH IS REPRODUCED BY THE AO AT PAGE - 2 OF THE ASSESSMENT ORDER, WHEREIN I NOTE THAT THE ASSESSEE H A S PRODUCED 18 (EIGHTEEN) SALE DEEDS , FROM WHICH THE AO HAD TAKEN NOTE OF THE DATE OF REGISTRATION OF THE SALE DEED, WHICH BEGINS FROM 01 - 07 - 2005 TO 06 - 02 - 2006 AND THE NAME O F BUYERS HAVE ALSO BEEN REFLECTED IN THE GIVEN CHART. THE AO HAS DISBELIEVED THE SOURCE OF THIS MONEY ONLY BECAUSE ACCORDING TO HIM , SINCE THE ASSESSEE INDULGED IN BANKING TRANSACTION , HE WOULD NEVER HAVE A LLOW ED THE MONEY TO BE KEPT IDLE IN THE HOUSE, WHEN IT COULD HAVE EARN ED INTEREST INCOME. IT IS NOTED THAT T HE AO HAS NOT DOUBTED THE SALE OF ANCESTRAL AGRICULTURAL LAND , BUT HE DOUBTED TH E SALE CONSIDERATION RECEIVED FORM IT. THEREFORE, THE AO DISBELIEVED THE SOURCE OF INCOME TO THE TUNE OF RS. 9 ,62,500/ - . HOWEVER, I DO NOT COUNTENANCE THIS ACTION OF THE AO BECAUSE WHEN THE ASSESSEE EXPLAINED THE SOURCE OF RS. 9,62,500/ - AND LINKED IT TO SALE OF AGRICULTURAL LAND AND HAD BROUGHT TO THE NOTICE OF THE AO THAT SOURCE OF CASH DEPOSIT IN THE BANK OF RS. 9,62,500/ - WAS HIS SHARE FROM SALE CONSIDERATION OF ANCESTRAL AGRICULTURAL PROPERTY, WHICH WAS KEPT IN THE SAFE CUSTODY OF THE FAMILY IN THE HOME CHEST COULD NOT HAVE BEEN DISBELIEVED UNLESS THE AO IS ABLE TO SHOW THAT SALE CONSIDERATION GENERATED FROM THE SALE OF PROPERTY (AGRICULTURAL LAND) IN AY 2006 - 07 HAD BEEN INVESTED IN OTHER ASSET OR EXPENDED BY THE ASSESSEE. SINCE THE ASSESSEE HAD DISCHARGED THE PRIMAR Y ONUS BY BRINGING THE REGISTERED SALE DEEDS OF THE AGRICULTURAL PROPERTY AND THE AO C OULD NOT DISPUTE THE VERACITY OF THE SALE, THEN THE SALE CONSIDERATION EMANATING FROM THE SAID TRANSACTION ( A PART/SHARE OF ASSESSEE) AS SOURCE CANNOT BE DISBELIEVED UNLESS IT IS SHOWN THAT THE SALE CONSIDERATION WAS INVESTED OR EXPENDED BY THE ASSESSE E. SINCE THE SALE OF AGRICULTURAL LAND HAS BEEN ACCEPTED, THE SALE CONSIDERATION FROM IT HAVE TO BE ACCEPTED AS SOURCE SINCE IT HAS NOT BEEN INVESTED OR EXPENDED BY THE ASSESSEE . SO I FIND THAT SOURCE OF INCOME WAS DISCLOSED BY THE ASSESSEE AND IN THAT WAY THE ASSESSEE HAS DISCHARGED HIS ONUS OF SOURCE OF RS. 9,62,500/ - . 4 ITA NO. 755/KOL/2019 AY ANJAN KUMAR DEY 7. COMING TO THE EXPLANATION OF THE ASSESSEE IN RESPECT OF RECEIPT OF RS. 7,00,000/ - FROM HIS MOTHER IS CONCERNED, I NOTE THAT ASSESSEE IN ORDER TO SUPPORT THE CLAIM HAD FILED AN AFFI DAVIT WHEREIN SHE HAD SWORN TH IS FACT OF GIFT AND THE AFFIDAVIT HAS BEEN NOTARISED. IT WAS BROUGHT TO MY NOTICE THAT AT THE TIME OF ASSESSMENT ORDER SHE WAS OF 80 YEARS OLD AND SHE GIFTED RS. 7,00,000/ - TO HER GRANDSON FOR HIGHER STUDY ABROAD OUT OF HER S AVING, WHICH ACCORDING TO HER SHE HAS INHERITED AS STRIDHAN AND KEPT IN HER HOME CHEST. THIS EXPLANATION WAS ALSO DISBELIEVED BY THE AO AS WELL AS THE LD. CIT(A) ON THE REASONING THAT SHE WAS ACTIVELY TRANSACTING IN HER BANK ACCOUNT 4 TO 5 TIMES MONTHLY . ACCORDING TO THE LD. AR THOUGH SHE HAD BANK ACCOUNT, SHE NEVER GOES TO THE BANK AND HER SON AND GRANDSON WOULD OPERATE HER BANK ACCOUNT ON HER BEHALF. ACCORDING TO LD. AR CHILDREN AND GRANDCHILDREN USED TO DEPOSIT MONEY IN HER (MOTHER) BANK ACCOUNT AND AS PER HER INSTRUCTION, SON OR GRANDSON WOULD WITHDRAW THE MONEY FOR HER. ACCORDING TO LD. AR, T HIS TRANSACTION TAKING PLACE IN THE BANK BY HER CHILDREN ON BEHALF OF HER CANNOT BE USED AGAINST HER TO DISBELIEVE THE GIFT OF RS. 7,00,000/ - (GIFT) W HICH WAS GIVEN BY HER FOR THE HIGHER EDUCATION OF HER GRANDSON, WHO GOT ADMISSION IN VICTORIA UNIVERSITY, MELBORUNE, AUSTRALIA. I NOTE THAT THE ASSESSEE PRODUCED BEFORE ME AN AFFIDAVIT OF HIS MOTHER, PRATIMA DEY ( AGED ABOUT 80 YEARS) , FOUND PLACED AT P AGE - 21 OF THE P/B , WHICH SHOWS THAT HIS MOTHER HAD GIFTED OF RS. 7,00,000/ - TO THE ASSESSEE ON 20 - 04 - 2013 IN CASH FOR HIGHER STUDY IN VICTORIA UNIVERSITY AT MELBOURNE, AUSTRALIA FOR HER GRANDSON S HIGHER EDUCATION . THE AO NOTES THAT THIS MONEY WAS HER PA ST SAVING AND WAS INHERITED FROM STRIDHAN. SHE GIFTED THE SAME FOR HIGHER EDUCATION OF HER GRANDSON IN AUSTRALIA . I NOTE THAT THE ASSESSEE HAD DISCHARGED HIS ONUS OF GIFT RECEIPT OF RS. 7LAKS FROM HIS MOTHER BY PRODUCING THE SAID AFFIDAVIT, WHICH HAS BE EN NOTARISED . SHE HAD EXPLAINED THE SOURCE OF HER ACCUMULATED AMOUNT OF RS. 7 LAKHS, WHICH SHE HAD GIVEN AS GIFT TO THE ASSESSEE FOR HIGHER EDUCATION OF HER GRANDSON . IN THE ABSENCE OF ANY OTHER EVIDENCE TO SHOW THAT THE CLAIM MADE BY MOTHER OF ASSESSEE IS FALSE , I T HAS TO BE TAKEN THAT THE ASSESSEE HAS DISCHARGED HIS ONUS . THEREFORE, I ACCEPT THE EXPLANATION OF ASSESSEE IN RESPECT OF GIFT RECEIPT OF RS. 7 LAKHS 8. COMING TO BALANCE AMOUNT OF RS. 3,37,500/ - , I NOTE THAT THE ASSESSEE HAD SUFFICIENT CASH BALANCE . THE ASSESSEE I NOTE HAD OPENING BALANCE OF RS. 4,45,00 IN THIS AY. THE REFORE, THE ASSESSEE HAS SUFFICIENT CASH BALANCE. SO THE SOURCE OF RS. 3,37,500/ - STANDS EXPLAINED. IN THE LIGHT OF THE ABOVE DISCUSSION, THE SOURCE OF CASH 5 ITA NO. 755/KOL/2019 AY ANJAN KUMAR DEY DEPOSIT OF RS. 20 ,06,497/ - STANDS EXPLAINED. I NOTE THAT THE ASSESSEE HAS DISCHARGED THE PRIMARY ONUS OF THE SOURCE OF CASH FROM THE EVID ENCES FURNISHED BEFORE THE AO A ND THE AO FAILED TO BRING ANY EVIDENCE TO PROVE THAT THE EVIDENCES FURNISHED BY THE ASSESSEE IS FALSE. THEREFORE, THE AOS NON - ACCEPTANCE OF THE CLAIM MADE BY THE ASSESSEE IS BASED ON SURMISES AND CONJECTURES, WHICH CANNOT BE COUNTENANCED. THEREFORE, I DIRECT THE AO TO DELETE THE ADDITION OF RS. 20,66,497/ - . 9 . BEFORE PARTING, IT IS NOTED THAT THE ORD E R IS BEING PRONOUNCED AFTER NINETY (90) DAYS OF HEARING. HOWEVER, TAKING NOTE OF THE EXTRAORDINARY SITUATION IN THE LIGHT OF THE COVID - 19 PANDEMIC AND LOCKDOWN, THE PERIOD OF LOCKDOWN DAYS NEED TO BE EXCLUDED. FOR COMING TO SUCH A CONCLUSION, WE RELY UPON THE DECISION OF THE CO - ORDINATE BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF DCIT VS. JSW LIMITED IN ITA NO. 6264/MUM/2018 & 6103/MUM/2018, ASSESSMENT YEAR 2013 - 14, ORDER DT. 14 TH MAY, 2020. IN THE LIGHT OF THE ABOVE DISCUSSION, THE APPEAL OF ASSESSEE IS ALLOWED IN ABOVE TERMS/DISCUSSION. 10. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05 - 06 - 2020 SD/ - A.T. VARKEY JUDICIAL MEMBER DATED 05 JUNE . 2020 * PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ ASSESSEE: S H RI ANJAN KUMAR DEY CHARU SADAN, NUTANGANJ, BURDWAN - 713102 (WB). 2 RESPONDENT/ REVENUE: THE ITO , WARD 1 ( 3 ) , AAYKAR BHAWAN, BURDWAN . 3. CIT, 4. CIT(A), KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY BY OR DER ASSISTANT REGISTRAR ITAT KOLKATA