Shri Priyotosh Das, Kolkata V. ITO, Ward - 3(1), Siliguri, Siliguri

ITA 94/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2545 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 16-06-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 15-01-2010
• Court: TRIBUNAL
• Department Lawyers: A RAJHANSDR
• Assessee Lawyers: S M SURANA
• Keywords: Gift

Judgement Text

, SMC (C) , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - SMC , KOLKATA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. / I.T.A.NO. 94/KOL/2010 / ASS ESSMENT YEAR 2004 - 05 SHRI PRIYOTOSH DAS, MAHANANDAPARA, SILIGURI, WEST BENGAL, C/O. SHRI S.M.SURANA, ADVOCATE, P38,INDIA EXCHANGE PLACE, 3 RD FLOOR, ARUN CHAMBER, KOLKATA 700 001. PAN AHSPD 6905 C - - - VERSUS - . INCOME - TAX OFFICER, WARD 3(1 ) , SILIGU RI, WEST BENGAL. ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.M.SURANA, AR / FOR THE RESPONDENT : / SHRI A.RAJHANS,DR / ORDER . . , SHRI B.R.MI TTAL, JUDICIAL MEMBER. THE ASSESSEE HAS FILED THIS APPEAL FOR THE ASSESSMENT YEAR 2004 - 05 AGAINST THE ORDER DT.1.10.2009 OF THE COMMISSIONER OF INCOME - TAX (APPEALS), SILIGURI DISPUTING THE CONFIRMATION OF THE ADDITION OF RS.4 LAKHS U/S.68 OF THE INCOME - T AX ACT,1961 . 2. THE FACTS IN BRIEF ARE THAT DURING THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE CLAIMED TO HAVE RECEIVED GIFTS OF RS.4,00,000 I.E., OF RS.1 LAKH EACH FROM FOUR PERSONS NAMELY, (1) SHRI AMAL KUMAR PAUL, (2) SHRI PRASANTA KUNDU, (3) S HRI RANABIR CHAKRABORTY AND (4) SHRI ASHOK DEY. THE ASSESSING OFFICER OBSERVED THAT DESPITE REPEATED REQUEST, THE ASSESSEE DID NOT PRODUCE THE DONORS FOR CROSS EXAMINATION AND FOR VERIFICATION OF THEIR IDENTITY AND CREDITWORTHINESS, GENUINENESS OF THE TRAN SACTIONS OF THE GIFTS AND RELATIONSHIP OF THE DONORS. HOWEVER, THE ASSESSEE FILED A WRITTEN SUBMISSION ENCLOSING THE COPY OF THE I. T. RETURNS AS WELL AS THE STATEMENT OF AFFAIRS OF THE DONORS FOR THE LAST THREE YEARS MENTIONING THEIR FAMILY DETAILS. ON E XAMINATION OF THE I T RETURNS AND / I.T.A.NO.94/KOL/2010 2 THE DETAILS SUBMITTED BY THE ASSESSEE IN THE WRITTEN SUBMISSION , THE ASSESSING OFFICER OBSERVED THAT THE DONORS HAD NO CREDITWORTHINESS AS TH E DONORS ARE MEN OF LITTLE MEAN AND THAT THE CIRCUMSTANCES ON WHI CH THE DONORS SAID TO HAVE GIFTED RS.1 LAKH EACH DO NOT PA SS THE TEST OF HUMAN PROBABILITIES. THEREFORE, THE ASSESSING OFFICER REJECTED THE CLAIM OF GIFT AND ADDED THE SUM OF RS.4 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE U/S.68 OF THE I.T.ACT,1961. IN AP PEAL, THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 3 . DURING THE COURSE OF HEARING, THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT ALL THE DONORS ARE ASSESSED TO TAX AND THE ASSESSEE ALSO FILED BALANCE SHEETS BEFORE THE AUTHORITIES BEL OW TO ESTABLISH THEIR CREDITWORTHINESS AND IDENTITY. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE ASKED THE ASSESSING OFFICER TO ISSUE NOTICES U/S.131 OF THE ACT WHEN THE ASSESSING OFFICER WANTED THE DONORS TO BE PRODUCED BEFORE HIM, BUT THE ASSESSING OFFICER DID NOT ISSUE NOTICES ON THE GROUND THAT FULL ADDRESSES OF THE DONORS WERE NOT GIVEN. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FURNISHED THE FULL ADDRESSES AND THE ASSESSING OFFICER SHOULD HAVE ISSUED NOTICES U/S.1 31 OF THE ACT TO THE DONORS, IF HE WANTED TO EXAMINE THE DONORS. HE FURTHER SUBMITTED THAT ALL THE GIFTS WERE RECEIVED BY THE ASSESSEE BY ACCOUNT PAYEE CHEQUES. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT WHEN THE GIFTS HAVE BEEN MADE THROUGH BANKING CHA NNEL AND ALL THE DONORS ARE ASSESSED TO TAX, THE AUTHORITIES BELOW ARE NOT JUSTIFIED TO DOUBT THE GENUINENESS OF THE GIFTS. IN SUPPORT OF HIS SUBMISSIONS, THE LEARNED AR OF THE ASSESSEE PLACED RELIANCE ON THE DECISION IN THE CASE OF COMMISSIONER OF INCOME - TAX V. ORISSA CORPORATION P. LTD [159 ITR 78(SC)], DECISION OF ITAT, PATNA BENCH IN THE CASE OF DEBICHAND M OHALLAL V. INCOME - TAX OFFICER [ 50 ITD 426 (PAT)] AND THE DECISION OF HONBLE GAUHATI HIGH COURT IN THE CASE OF JALAN TIMBERS V . C IT ( 1997) 223 ITR 11 (GAU). THE LEARNED AR OF THE ASSESSEE FURTHER SUBMITTED THAT THE ADDITION COULD NOT BE MADE U/S.68 OF THE ACT AS THESE ARE NOT CASH CREDITS AND IN SUPPORT OF IT, HE RELIED ON THE DECISIONS IN THE CASE OF BALADIN RAM V. CIT (71 ITR 427) , CIT V . TAJ BORE WELLS (2007) 291 ITR 232 (MAD), AND CIT V. BHAICHAND H. GANDHI (141 ITR 67) . THE LEARNED AR OF THE ASSESSEE FURTHER SUBMITTED THAT ON SIMILAR FACTS, THE TRIBUNAL HAS DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER BY ACCEPTING THE GENUINENESS OF THE GI FTS AND REFERRED TO / I.T.A.NO.94/KOL/2010 3 VARIOUS ORDERS OF ITAT, KOLKATA BENCHES INTER ALIA IN THE CASE OF SHRI GURU PADA SAHA V. ITO IN ITA NO.674/KOL/2008 DT.21.8.2009, ITO V. SHRI SAILESH KUMAR AGARWAL IN ITA NO.313/KOL/2007 DT.11.5.2007, SMT. SUMAN JAIN V. ITO IN ITA NO.20 30/KOL/2006 DT.12.1.2007 . THE LEARNED AR OF THE ASSESSEE FURTHER SUBMITTED THAT ALL THE DONORS ARE ASSESSED BY THE SAME ASSESSING OFFICER AND THEREFORE, MERELY BECAUSE THE ASSESSEE COULD NOT PRODUCE THE DONORS IT COULD NOT BE A GROUND TO DOUBT THE GENUINEN ESS OF THE GIFTS. HE SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT(A) BE DELETED. ALTERNATELY, DURING THE COURSE OF HEARING, HE SUBMITTED THAT THE ASSESSEE WILL PRODUCE ALL THE DONORS FOR CROSS - EXAMINATION IF TH E MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. 4. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ALLEGED DONORS ARE NOT RELATIVES OF THE ASSESSEE. HE FURTHER SUBMITTED THAT IF T HE SAID PERSONS ARE HAVING LOVE AND AFFECTION TO THE ASSESSEE TO GIVE THEIR CAPITAL AS GIFT TO THE ASSESSEE, THE ASSESEE SHOULD HAVE NO PROBLEM TO PRODUCE THEM BEFORE THE ASSESSING OFFICER. HE SUBMITTED THAT THE ASSESSEE DID NOT STATE BEFORE THE ASSESSING OFFICER THAT ALL THE DONORS ARE ASSESSED TO TAX BY THE SAME ASSESSING OFFICER. HE FURTHER SUBMITTED THAT THE ADDRESSES OF THE ALLEGED DONORS FURNISHED BY THE ASSESSEE ARE NOT COMPLETE AND THEREFORE, THE ASSESSING OFFICER COULD NOT ISSUE NOTICES U/S.131 OF THE ACT. THE LEARNED DR SUBMITTED THAT THE ASSESSING OFFICER HAS STATED IN THE ASSESSMENT ORDER THAT THE ASSESSEE WAS REPEATEDLY REQUESTED TO PRODUCE THE DONORS FOR CROSS EXAMINATION AND TO ESTABLISH THEIR IDENTITY BUT THE ASSESSEE FAILED TO DO SO AND THER EFORE, THE ASSESSING OFFICER WAS JUSTIFIED IN NOT ACCEPTING THE GENUINENESS OF THE GIFTS. HE FURTHER SUBMITTED THAT ALL THE SO CALLED DONORS HAD THE INCOME RANGING FROM RS.5 0,000 TO RS.55,000 AND MEAGER DRAWINGS OF RS.30,000 EACH ANNUALLY. HE SUBMITTED THA T THE ORDER OF THE LEARNED CIT(A) CONFIRMING THE ACTION OF THE ASSESSING OFFICER BE CONFIRMED. 5. HAVING HEARD BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND CONSIDERING VARIOUS DECISIONS AS RELIED ON BY THE LEARNED AR OF TH E ASSESSEE ; IT IS NOTICED THAT THE ASSESSEE CLAIMED TO HAVE RECEIVED GIFTS OF RS.1 LAKH EACH FROM FOUR PERSONS NAMED ABOVE. IT IS A FACT NOT DISPUTED BY EITHER / I.T.A.NO.94/KOL/2010 4 PARTY THAT DESPITE REPEATED REQUEST OF THE ASSESSING OFFICER, THE ASSESSEE DID NOT PRODUCE THE D ONORS, BUT AT THE SAME TIME THE ASSESSEE FILED COPIES OF INCOME - TAX RETURNS AS WELL AS THE STATEMENT OF AFFAIRS OF THE DONORS FOR THE LAST THREE YEARS MENTIONING THEIR FAMILY DETAILS ETC., ALONGWITH THE WRITTEN SUBMISSION FILED BEFORE THE ASSESSING OFFICER . T HE ASSESSING OFFICER HAS NOT ISSUED NOTICES U/S.131 OF THE ACT TO THE RESPECTIVE DONORS OBSERVING THAT THE ASSESSEE HAD NOT FURNISHED THE ADDRESSES OF THE DONORS. BUT, AS IS EVIDENT FROM THE ASSESSMENT ORDER ITSELF, THE ASSESSING OFFICER HAS EXAMINED TH E INCOME - TAX RETURNS OF EACH OF THE DONORS AND CAME TO CONCLUDE THAT THE DONORS HAVE NO CREDITWORTHINESS. DURING THE COURSE OF HEARING THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT ALL THE GIFTS WERE RECEIVED BY THE ASSESSEE BY ACCOUNT PAYEE CHEQUES. THE D ONORS ARE ASSESSED BY THE SAME ASSESSING OFFICER . IT IS OBSERVED THAT THE ASSESSEE HAS PRODUCED ALL THE DETAILS, WHICH HE COULD, EXCEPT PRODUCING THE DONORS IN PERSON, FOR ESTABLISHING THE CLAIM OF GIFTS FROM FOUR PERSONS. NOW THAT THE LEARNED AR OF THE AS SESSEE SUBMITTED THAT THE ASSESSEE WILL PRODUCE THE DONORS FOR EXAMINATION IN PERSON IF ANOTHER OPPORTUNITY IS GIVEN TO THE A SSESSEE, AND CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE IN ENTIRETY, I FEEL IT PROPER TO RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE - DECIDE THE MATTER AFTER EXAMINING THE DONORS TO BE PRODUCED BY THE ASSESSEE AS STATED HEREIN ABOVE AND CONSIDERING SUCH EVIDENCE/MATERIALS AS MAY BE FURNISHED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM AND PASS A SPEAKING ORDER AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE. I MAY STATE THAT, IF THE ASSESSEE FAILS TO PRODUCE THE DONORS BEFORE THE ASSESSING OFFICER AND/OR FAILS TO CO - OPERATE THE ASSESSING OFFICER, THE ASSESSING OFFICER WILL DECIDE THE ISSUE ON THE BASIS OF DOCUMENTS WITH HIM BY A REASONED ORDER. I ORDER ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 25.06.2010 ( . . ), ( B.R.MITTAL ), JUDICIAL MEMBER ( ) DATE :25.06.2010 ( /) H.K.PADHEE / S NR.PRIVATE SECRETARY. / I.T.A.NO.94/KOL/2010 5 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : SHRI PRIYOTOSH DAS, MAHANANDAPARA, SILIGURI, WEST BENGAL, C/O. SHRI S.M.SURANA, ADVOCATE, P38,INDIA EXCHANGE PLACE, 3 RD FLOOR, ARUN CHAMBER, KOLKATA 700 001 2 / THE RESPONDENT - INCOME - TAX OFFICER, WARD 3(1), SILIGURI, WEST BENGAL. 3. / THE CIT, 4. ( )/ THE CIT(A), 5. / DR, KOLKATA BENCH 6. GUARD FILE . / TRUE COPY , / BY ORDER , / DEPUTY REGISTRAR .