KALPANA D. PANDYA, MUMBAI V. ITO 23(2)4, MUMBAI

ITA 7693/MUM/2012

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8716 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-08-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 27-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESH
• Assessee Lawyers: NAVIN B GANDHI LD
• Keywords: Gift; Salary income; Additional evidence
• Section: 143(3)

Judgement Text

ITA.NO.7693/MUM/2012 KALPANA D. PANDYA ASSESSMENT YEAR-2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.7693/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) KALPANA D. PANDYA A-1/1 VEENA NAGAR LBS MARG, MULUND (WEST) MUMBAI-400 080 / VS. INCOME TAX OFFICER 23(2)4 PRATYAKSHKAR BHAVAN, C-10, 2 ND FLOOR BANDRA KURLA COMPLEX BANDRA (E) MUMBAI - 40 0 051 ! ./ ./PAN/GIR NO. AAFPP-8649-B ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) A SSESSEE BY : NAVIN B.GANDHI, LD. AR RE VENUE BY : SAURABH DESHPANDE, LD. DR / DATE OF HEARING : 23/08/2017 / DATE OF PRONOUNCEMENT : 25/10/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2008-09 ASSAILS THE ORDER OF THE LD. COMMISSIONER O F INCOME TAX ITA.NO.7693/MUM/2012 KALPANA D. PANDYA ASSESSMENT YEAR-2008-09 2 (APPEALS)-11 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-11/CIR.23/10-11/11- 12/442-K DATED 31/10/2012. THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. INCOME TAX OFFICER-23(2)(4) U/S 143(3) OF THE I NCOME TAX ACT, 1961 ON 29/12/2010. THE SOLITARY ISSUE INVOLVED IN THE APPEAL IS ADDITION OF RS.2 LACS U/S 68. DURING HEARING, THE L D. COUNSEL FOR ASSESSEE [AR] HAS NOT PRESSED ADDITIONAL GROUNDS OF APPEAL RAISED EARLIER IN THE APPEAL. 2.1 FACTS LEADING TO THE SAME ARE THAT THE ASSESSEE BEING RESIDENT INDIVIDUAL DERIVING INCOME FROM SALARY AND OTHER SOURCES WAS ASSESSED U/S 143(3) FOR IMPUGNED AY ON 29/12/2010 AT RS.5,50 ,240/- AS AGAINST RETURNED INCOME OF RS.3,50,240/- FILED BY THE ASSES SEE ON 08/12/2009. 2.2 PURSUANT TO ANNUAL INFORMATION REPORT [AIR] , IT WAS NOTICED THAT DURING FINANCIAL YEAR 2007-08, THE ASSESSEE DEPOSIT ED CASH OF RS.12,50,100/- IN HER SAVINGS ACCOUNT MAINTAINED WI TH JANATA SAHKARI BANK LTD, THANE. HOWEVER, UPON CONFIRMATION FROM THE BANK, IT WAS FOUND THAT THE ASSESSEE DEPOSITED CASH TO THE EXTEN T OF RS.6,48,000/- ONLY, THE SOURCE OF WHICH THE ASSESSEE WAS REQUIRED TO EXPLAIN. 2.3 THE ASSESSEE ATTRIBUTED RS.4.50 LACS TO DIRECTO RS REMUNERATION RECEIVED BY THE ASSESSEE FROM A CONCERN NAMELY SHEETAL AYURVED BHANDAR PRIVATE LIMITED . THE BALANCE 2 LACS WERE STATED TO BE RECEIVED BY THE ASSESSEE FROM HER MOTHER SMT. KAPILABEN AS PER WILL DATED 18/06/2008. HOWEVER, LD. AO FOUND DISCREPANCIES IN THE DATES MENTIONED IN THE WILL AND FURTHER NOTED THAT THE MO THER OF THE ASSESSEE DIED ON 24/08/2008 I.E. AFTER THE END OF THE RELEVA NT FINANCIAL YEAR AND THEREFORE, THE ASSESSEE COULD NOT HAVE RECEIVED THE LEGACIES BEFORE THE ITA.NO.7693/MUM/2012 KALPANA D. PANDYA ASSESSMENT YEAR-2008-09 3 DEATH OF HER MOTHER. FINALLY, TREATING THE SAID DEP OSIT OF RS.2 LACS AS CASH CREDIT, THE SAME WAS ADDED TO THE INCOME OF TH E ASSESSEE. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) AND WHERE THE ASSESSEE SUBMITTED COPY OF WILL DATED 18/06/2008 OF THE FATHER OF THE ASSESSEE I.E. SHRI AMRUTLAL UPADHYAY AND DREW ATTENTION TO THE FACT THAT THE ASSESSEE RECEIV ED RS.9 LACS FROM HER LATE FATHER AND NOT FROM HER MOTHER AS WRONGLY NOTE D BY LD. AO. THE COPY OF DEATH CERTIFICATE OF SHRI AMRUTLAL UPADHYAY WAS ALSO FILED WHICH REFLECTED DATE OF DEATH AS 21/08/2008. AGAINST THES E ADDITIONAL EVIDENCES, A REMAND REPORT WAS CALLED FROM LD. AO WHERE LD. AO NOTED THAT MONEY WAS DEPOSITED IN THE BANK ACCOUNT WELL B EFORE THE EXECUTION OF WILL. THE ASSESSEE DREW ATTENTION TO THE FACT TH AT THE MONEY WAS RECEIVED WELL BEFORE THE DATE OF DEATH OF THE FATHE R. THE WITNESS TO THE WILL WAS ALSO EXAMINED WHERE HE CONCURRED WITH THE EXISTENCE OF THE WILL AND RECEIPT OF CASH OF RS.9 LACS BY THE ASSESSEE. T HE LD.CIT(A), AFTER CONSIDERING THE FACTUAL MATRIX AND THE REMAND REPORT, CAME TO A CONCLUSION THAT THE ASSESSEE COULD NOT PROVE CREDIT WORTHINESS OF THE DONOR AND THEREFORE, THE ADDITION WAS CONFIRMED. AG GRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. COUNSEL FOR ASSESSEE [AR] MADE A SHORT S UBMISSION THAT THE ASSESSEE RECEIVED THE SAID CASH FROM HER LATE F ATHER WHO GIFTED HIS LIFE TIME SAVING TO THE DAUGHTER AND THIS FACT WAS CONFIRMED BY ONE OF THE WITNESS TO THE WILL. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE [DR] PLACED RELIANCE ON THE STAND OF LOWER AUTHORITIES A ND CONTENDED THAT THE ASSESSEE FAILED TO PROVE THE CREDITWORTHINESS OF TH E DONOR. ITA.NO.7693/MUM/2012 KALPANA D. PANDYA ASSESSMENT YEAR-2008-09 4 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. WE HAVE PERUSED THE TRANSLATED COPY OF WILL OF ASSESSEES FATHER SHRI AMRUTLAL UPADHYAY DATED 18/06/2008 WHERE HE HAS STATED TO HAVE GIVEN HIS LIFE TIME SAVINGS OF RS.9 LACS TO HI S DAUGHTER KALPANA DEVENDRA PANDYA . FROM THE LANGUAGE OF THE WILL, IT APPEARS THAT TH E SAID SAVINGS HAD ALREADY BEEN HANDED OVER BY THE FATHER OF THE ASSESSEE TO THE ASSESSEE. THE ASSESSEE, DURING COURSE OF ASSESS MENT PROCEEDINGS HAD PRODUCED COPY OF 7/12 EXTRACT AND LAND RELATED DOCUMENTS WHICH PRIMA FACIE, REVEALS THAT THE ASSESSEE FATHER WAS ENGAGED IN AG RICULTURAL ACTIVITIES. THE ASSESSEE HAD ALREADY SUBMITTED FEW INCOME TAX RETURNS OF HER FATHER TO PROVE HIS CREDITWORTHINESS. AFTER CONSIDERATION OF TOTALITY OF FACTS, GIVING BENEFIT OF DOUBT TO THE ASSESSEE, WE FIND THAT BALANCE OF CONVENIENCE TILTS IN ASSESSEES FAVOR AND HOLD THAT IMPUGNED ADDITIONS ARE NOT WARRANTED FOR IN THE CIRCUMSTANCES. HENCE, BY DELETING THE SAME, WE ALLOW ASSESSEES APPEAL. 6. RESULTANTLY, THE ASSESSEES APPEAL STANDS ALLOWE D IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 25.10.2017 SR.PS:- THIRUMALESH ITA.NO.7693/MUM/2012 KALPANA D. PANDYA ASSESSMENT YEAR-2008-09 5 ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI