SAMSON ALEX, MUMBAI V. ITO 22(2)(3),

ITA 867/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3413 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 25-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 01-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Additional evidence
• Section: 69; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SANJAY ARORA , A M AND SHRI RAM LAL NEGI, J M ./ I.T.A. NO. 867/MUM/2013 ( / ASSESSMENT YEAR: 2008 - 09 ) SAMSON ALEX A - 1001, NATASHA, GR. FLOOR, NIKITA NATASHA CHS, AMRUT NAGAR, GHATKOPAR (W), MUMBAI - 400 086 / VS. ITO - 22(2)(3), MUMBAI ./ ./ PAN/GIR NO. ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT B Y : NONE / RESPONDENT BY : SHRI RAVINDER SINDHU / DATE OF HEARING : 26.5.2016 / DATE OF PRONOUNCEMENT : 26 .8 .2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 33 , MUMBAI (CIT(A) FOR SHORT) DATED 17.9.2012 , DISMISSING THE A SSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2008 - 09 VIDE ORDER DATED 27.12.2010. 2 ITA NO. 867/MUM/2013 (A.Y. 2008 - 09) SAMSON ALEX VS. ITO 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE - APPELLANT WHEN HIS APPEAL WAS CALLED OUT FOR HEARING NOR IS THERE ANY ADJOURNMENT MOTION ON RECORD . THIS , DESPITE DUE SERVICE OF NOTICE OF HEARING, PROOF OF W HICH IS ON RECORD. THERE IS EVEN NO LETTER OF AUTHORITY IN FAVOUR OF ANY COUNSEL ON RECORD. THE AP PEAL IS PENDING DISPOSAL SINCE FEBRUARY, 2013, HAVING BEEN FILED ON 0 1 . 0 2. 2013. IT WAS, ACCORDINGLY, CONSIDER ED PROPER TO PROCEED WITH THE HEARING THEREOF, AN D DECIDE THE SAME AFTER HEARING THE PARTY BEFORE US AND CONSIDERING THE MATERIAL ON RECORD. 3. 1 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE - INDIVIDUAL , WHO FILED HIS RETURN OF INCOME FOR THE YEAR ON 31 .3. 2009 AT AN INCOME OF RS.11.11 L ACS, WAS FOUN D DURING THE ASSESSMENT PROCEEDINGS TO HAVE DEPOSIT ED CASH IN HIS BANK ACCOUNT DURING THE YEAR AT RS. 3 4 L ACS, AS UNDER: (REFER PARA 3 OF THE ASSESSMENT ORDER) DATE DEPOSIT (RS.) WITHDRAWAL BALANCE (RS.) 27.12.2007 3,00,000/ - - 3,00,000/ - 29.12.2007 3,00, 000/ - - 6,00,000/ - 03.01.2008 3,00,000/ - - 9,00,000/ - 04.04.2008 3,00,000/ - - 12,00,000/ - 07.01.2008 3,00,000/ - - 15,00,000/ - 09.01.2008 3,00,000/ - - 18,00,000/ - 11.01.2008 3,00,000/ - - 21,00,000/ - 14.01.2008 2,00,000/ - - 23,00,000/ - 17.01.2008 2,00 ,000/ - - 31,00,000/ - 09.02.2008 3,00,000/ - - 34,00,000/ - RS.34,00,000/ - ( THE TABLE IS INCOMPLETE AS THE TOTAL DEPOSITS AGGREGATE TO RS. 28 LACS, AS AGAINST THE ADMITTED SUM OF RS. 34 LACS ) T HE ASSESSEE NOT FURNISHING ANY EXPLANATION IN THE ASSESSMEN T PROCEEDINGS TOWARD THE NATURE AND SOURCE OF THE SAID CASH DEPOSITS, THE SAME WERE BROUGHT TO TAX U /S. 6 9 /69A OF THE A CT BY THE A SSESSING O FFICER (AO). 3 . 2 IN APPEAL, THE ASSESSEE EXPLAIN ED THE SAME AS ON ACCOUNT OF THE SALE PROCEEDS OF AN ANCESTRAL LAND BY HIS FATHER, MR. IRUDHAYAM WHO I S STATED TO HAVE DEPOSITED THE 3 ITA NO. 867/MUM/2013 (A.Y. 2008 - 09) SAMSON ALEX VS. ITO SAID CASH IN THE ASSESS EES BANK ACCOUNT UNKNOWINGLY , PRODUCING A DEED OF PROPERTY DOCUMENT (IN TAMIL) AS WELL AS THE ENGLISH TRANSLATION THEREOF. THE SAME WAS, HOWEVER, CONSIDERED NOT ADEQUATE BY THE LD. CIT(A) TO ESTABLISH THE ASSESSEES CLAIM. FIRSTLY, THERE WAS NO REASON FOR NOT FURNISHING THE SAID DOCUMENT BEFORE THE ASSESSING AUTHORITY, WHO HAD ALLOWED THE ASSESSEE PROPER OPPORTUNITY TO EXPLAIN HIS CASE DURING THE ASSESSMENT PROCE EDINGS , SO THAT THERE WAS NON - SATISFACTION OF RULE 46A (OF THE INCOME TAX RULES, 1962) , MANDATORY IN ITS APPLICATION . THEN, THE TRANS FER DEED , WHICH I S DATED 05.9.2 007, WAS ON A STAMP PAPER OF RS. 1 00 , STATING THE SALE CONSIDERATION AT RS.33.40 L ACS, OF WHICH RS.3.4 0 L ACS WAS STATED PAID AS ADVANCE AND THE BALANCE RS.3 0 L ACS TO BE PAID IN 10 EQUAL MONTHLY INSTA L L M ENTS OF RS. 3 LAKH EACH. THE M ODE AND MANNER OF THE PAYMENT OF RS.3.4 0 L ACS WAS NOT STATED THEREIN. FURTHER, N O CASH RECEIPTS WERE ADDUCED IN SU PPORT NOR WERE SO THE CASH D EPOSIT SLIPS (TOWARD THE DEPOSIT OF THE CASH IN THE ASSESSEES BANK ACCOUNT) , I.E., DESPITE BEING CALLED FOR . IN FACT, THE ASSESSEE HAD NOT EVEN MOVED ANY APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE, SO THAT THE SAID DOCUME NT COULD NOT BE ADMITTED. RELIANCE FOR THE PURPOSE WAS PLACED ON THE DECISION BY THE T RIBUNAL (AMRISTSAR BENCH) IN THE CASE OF DY. CIT V. GURDASPUR CENTRAL CO - OP BANK LTD . [2012] 25 TAXMANN.COM 27 , STATING R ULE 46A , PRESCRIBING THE MODE AND MANNER OF ADMIS SION OF ADDITIONAL EVIDENCE BY THE FIRST APPELLATE AUTHORITY, AS MANDATORY. THE ADDITION BEING CONFIRMED THUS, THE ASSESSEE IS IN SECOND APPEAL. 4 . WE HAVE HEARD THE PARTY BEFORE US, AND PERUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW , THE MATTER IS FACTUALLY INDETERMINATE AND , ACCORDINGLY, REQUIRES EXAMINATION. TRUE, THE ASSESSEE DID NOT FURNISH ANY EX PLANATION BEFORE THE ASSESSING AUTHORITY, SO THAT HIS ACTION IN ASSESSING THE IMPUGNED SUM AS INCOME CANNOT, AS IT APPEARS, BE FAULTED WITH. BEFORE THE FIRST APPELLATE AUTHORITY, HOWEVER, THE ASSESSEE FURNISHED AN EXPLANATION ALONG WITH A DOCUMENT ARY EVIDENCE. THE SAME MAY BE NOT COMPLETE OR CONCLUSIVE OF T HE MATTER, BUT CANNOT BE DISREGARDED, AS DONE BY THE 4 ITA NO. 867/MUM/2013 (A.Y. 2008 - 09) SAMSON ALEX VS. ITO LD . CIT (A) , WITHOUT PROPER VERIFICATION, LE ADING TO ITS REPU DIAT ION. IF THE LAND STA ND S IN DEED SOLD BY THE ASSESSEES FATHER PRIOR TO THE DATE OF DEPOSIT/ S , RECEIVING THE SA LE CONSIDERATION OVER TIME, AS CONTENDED, IT C OULD DEFINITELY EXPLAIN THE NATURE AND SOURCE OF THE IMPUGNED DEPOSITS. FIRSTLY , WHAT IS THE FAIR VALUE OF THE SAID LAND IN - AS - MUCH AS IT COULD WELL BE THAT THE ASSESSEE IS TAKING ADVANTAGE OF THE SALE OF LAND AROUND THE RELEVANT TIME TO EXPLAIN THE CASH DEPOSIT S IN HIS BANK ACCOUNT. THEN, BY WHEN HAS THE TOTAL AMOUNT BEEN RECEIVED A ND TITLE IN LAND CONVEYED IN FAVOUR OF THE BUYERS WHOSE CONFIRMATIONS COULD ALSO BE RELEVANT . FURTHER , DOES THE ASSESSEE HAVE SIBLINGS, AS EACH OF THEM WOULD HAVE A CLAIM ON THE FATHERS MONEY, AND WOULD REASONABLY OBJECT TO THE ENTIRE OF IT BEING GIVEN TO THE ASSESSEE. THE DEPOSIT IN THE ASSESSEES BANK ACCOUNT, WHICH I S ON A REGULAR BASIS, CANNOT BE REGARDED AS A MISTAKE, BUT ONLY AS A RESULT OF A CONSCIOUS DECISION BY THE ASSESSEES FATHER. PUT DIFFERENTLY, HAS THE MONEY BEEN GIFTED BY H IS FATHER TO TH E ASSESSEE , I.E., IN PREFERENCE TO HIS OTHER CHILDREN . IF SO, WHY DID NOT THE ASSESSEE STATE SO? IN THIS REGARD IT WOULD ALSO BE RELEVANT TO KNOW AS TO HOW THE MONEY STANDS USED , I.E., SUBSEQUENTLY , IN - AS - MUCH AS IT COULD ALSO BE INDICATIVE OF THE BONA FID ES OF THE ASSESSEES CASE . THE MATCHING OF THE DATES IS ALSO IMPORTANT. ANSWERS TO T HESE A N D SUCH - LIKE QUESTIONS , PRIMARILY FACTUAL, WOULD BE RELEVANT AND ENABLE ARRIVING AT A SATISFACTION AS REGARDS THE GENUINENESS OF THE ASSESSEES EXP LANATION - IN THE FACTS AND CIRCUMSTANCES, AS TO THE NATURE AND SOURCE OF THE DEPOSITS , THE PRIMARY BURDEN FOR WHICH IS ON THE ASSESSEE . WE, ACCORDINGLY, ONLY CONSIDER I T FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY TO ALLOW THE ASSESSE E AN OPPORTUNITY TO EXPLAIN HIS CASE BEFORE IT W ITH MATERIALS AS HE MAY WISH TO AD DUCE OR RELY UPON. AS REGARDS THE OBJECTION BY THE L D . CIT (A) WITH REFERENCE TO THE ADMISSION OF ADDITIONAL EVIDENCE, WE FIND THE SAME AS NOT MAINTAINABLE IN THE FACTS AND CI RCUMSTANCES OF THE CASE, RELYING ON THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN PRABHAVATI S. S HAH V. CIT [1998] 2 31 ITR 1 (BOM). RATHER, THE RE COULD BE AN OCCASION FOR THE L D . CIT (A) TO HIMSELF REQUIRE THE ASSESSEE , IN ORDER TO ENABLE HIM TO SUBSTANTIATE HIS CASE AND WITH A 5 ITA NO. 867/MUM/2013 (A.Y. 2008 - 09) SAMSON ALEX VS. ITO VIEW TO ARRIVE A T HIS OWN SATISFACTION, ADDUCE EVIDENCE, AND TO WHICH THE RULE 46A ITSELF , VIDE CLAUSE (4) THEREOF, MAKES AN EXCEPTION. NEEDLESS TO ADD, T HE APPELLATE ORDER BEING SET ASIDE, HE SHALL DECIDE THE ASSESSEES AP PEAL IN ACCORDANCE WITH LAW BY ISSUING DEFINITE FINDINGS OF FACT AND AFTER HEARING BOTH THE PARTIES , I.E., UPON ALLOWING DUE OPPORTUNITY TO THE AO TO EXAMINE THE ASSESSEES CASE , INCLUDING BY LE A DING MATERIAL IN REBUTTAL (R. 46A( 1 )). ALSO, WHERE THE ASSESS EE FAILS TO FURNISH THE MATERIALS/ EVIDENCES IN SUBSTANTIATION, THE REVENUE AUTHORITIES SHALL ADJUDICATE BY DRAWING INFERENCE PERMISSIBLE IN LAW. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 26 , 201 6 SD/ - SD/ - ( RAM LAL NEGI ) (S ANJAY ARORA) / J UDICIA L MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 26 . 0 8 .201 6 . . ./ ROSHANI , SR. PS / 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 F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI