A.C.I.T Cir - 36,kolkata., Kolkata V. Smt. Usha Datt., Kolkata

ITA 94/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99790 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 10-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2013
• Court: TRIBUNAL
• Department Lawyers: S S ALAM
• Assessee Lawyers: D C MODAK
• Keywords: Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M.BALAGANESH, AM ] ITA NO. 94/KOL/2013 ASSESSMENT YEAR : 2008 - 09 ( A PPELLANT ) (RESPONDENT) A.C.I.T., CIRCLE - 36, - VERSUS - SMT. U SHA DATT KOLKATA KOLKATA (PAN: ADNPD 9688 F) FOR THE APPELLANT : SHRI S.S.ALAM, JCIT FOR THE RESPONDENT : SHRI D.C.MODAK DATE OF HEARING : 10.09 .2015. DATE OF PRONOUNCEMENT : 16.09.2015. ORDER PER SHRI M.BALAGANESH, AM 1. THIS APPEAL OF THE REVENUE ARISES OUT OF THE ORDER OF THE LEARNED CITA IN APPEAL NO. 293/CIT(A) - XX/CIR - 36/2010 - 11/KOL. DATED 17.10.2012 F OR THE ASST YEAR 2008 - 09 ARISING OUT OF THE ORDER OF THE LEARNED ASSESSING OFFICER FRAMED U/S 143(3) OF THE INCOME TAX ACT, 1961 (H EREINAFTER REFERRED TO AS THE ACT ). 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LEARNED CITA IS JUSTIFIED IN DELETING THE ADDITION MADE IN THE SUM OF RS. 22,00,000/ - TOWARDS GIFT RECEIVED BY THE ASSESSEE FROM HUSBAND. 2.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THERE WERE CERTAIN DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE ON THE FOLLOWING DATES : - 14 . 9 . 2007 1,00,000 6 . 11 . 2007 20,00,000 26 . 12 . 2007 1,00,000 22,00,000 THE ASSESSEE EXPLAINED THE SOURCE FOR THE AFORESAID DEPOSITS AS GIFTS RECEIVED F ROM HER H USBAND DR.SOM DATT. THE LEARNED AO DISBELIEVED THE EXPLANATION GIVEN BY THE ASSESSEE AND BROUGHT THE SAID RECEIPT TO TAX U/S 68 OF THE ACT. ON FIRST APPEAL, THE ITA NO. 94/KOL/2013 SMT.USHA DATT A.YR. 2008 - 09 2 LEARNED CITA DELETED THE ADDITION MADE U/S 68 OF THE ACT ON VERIFICATION OF BANK STATEMENTS O F THE HUSBAND OF THE ASSESSEE WITH REGARD TO THE SOURCES FOR HUSBAND AND ON RECEIPT OF CONFIRMATION FROM THE HUSBAND CONFIRMING THE GIFT MADE BY HIM TO THE ASSESSEE. THE LEARNED CIT ( A ) PASSED THE ORDER AFTER CALLING FOR A REMAND REPORT FROM THE LEARNED AO AS THESE EVIDENCES WERE CONSTRUED AS FRESH EVIDENCES FILED BEFORE LEARNED CIT ( A ) . IT IS SEEN THAT THE REMAND REPORT WAS NOT SUBMITTED BY THE LEARNED AO AND ACCORDINGLY LEARNED CIT ( A ) PROCEEDED WITH THE APPEAL AND DELETED THE ADDITION BASED ON THE EVIDENC ES FILED BY THE ASSESSEE. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUND: - 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - XX, KOLKATA HAS ERRED IN DELETING THE ADDITION OF RS.22,00,000/ - WHEREAS THE ASSESSEE HAS NEITH ER PRODUCED THE GIFT DEED AT THE TIME OF ASSESSMENT PROCEEDINGS NOR APPELLATE PROCEEDINGS. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSEE FURNISHED ONLY THE BANK STATEMENT & LEDGER TO PROVE THAT THE SAID AMOUNT IS A GIFT BUT COULD NOT FURNISH T HE DETAILS IN RESPECT OF THE GIFT DONORS AND PROVE THE GENUINENESS OF THE TRANSACTION AS WELL AS THE CREDITWORTHINESS AND EXISTENCE OF THE DONORS. HOWEVER DURING THE COURSE OF APPELLANT PROCEEDING, THE ASSESSEE FURNISHED THE BANK STATEMENTS & LEDGER RELATE D TO THE SAID TRANSACTION. THE ASSESSEE ALSO FURNISHED A GIFT CONFIRMATION. THE SAID TRANSACTION, PRIMA FACIE APPEARS TO BE GENUINE AND THE IDENTITY & CREDITWORTHINESS OF THE DONOR IS ALSO ESTABLISHED. HOWEVER, THE FACT THAT HAS BEEN MISSED DURING THE COUR SE OF APPELLANT PROCEEDING IS THAT NO GIFT DEED HAS BEEN FURNISHED WHICH IS AN IMPORTANT DOCUMENTARY EVIDENCE TO PROVE THAT A GIFT IS A GIFT. HENCE, IT IS A QUESTION OF FACT STILL TO BE PROVED THAT THE GIFT AS CLAIMED BY THE ASSESSEE IS A GIFT. 2.2 SHRI . S.S.ALAM, JCIT, THE LEARNED DR ARGUED ON BEHALF OF THE REVENUE AND SHRI.D.C.MODAK, THE LEARNED AR ARGUED ON BEHALF OF THE ASSESSEE. 2.3. THE LEARNED DR ARGUED THAT THE ASSESSEE S HUSBAND HAD NOT CLEARLY PROVED THE SOURCES FOR GIVING GIFTS TO THE ASSE SSEE AND HEAVILY RELIED ON THE ORDER OF THE LEARNED AO. IN RESPONSE TO THIS, THE LEARNED AR ARGUED THAT THE ASSESSEE HAD DULY PROVED THE FACTUM OF GIFTS FROM HER HUSBAND WITH PROPER EVIDENCES AND MOREOVER, THE REVENUE ITSELF HAD ACCEPTED THE SAID GIFT AS GENUINE IN THEIR GROUNDS OF APPEAL. ACCORDINGLY, HE PLEADED FOR DISMISSAL OF THE REVENUE S APPEAL. 2.4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIALS AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE HAD DULY FURNISHED ALL THE EVIDENCES IN SUPPORT OF ITA NO. 94/KOL/2013 SMT.USHA DATT A.YR. 2008 - 09 3 GIFTS RECEIVED FROM HER HUSBAND WITH BANK STATEMENTS OF HUSBAND, CONFIRMATION FROM HIM, CREDITWORTHINESS TOGETHER WITH HIS INCOME TAX ASSESSMENT PARTICULARS BEFORE THE LOWER AUTHORITIES. IT IS SEEN THAT THE LEARNED AO DID NOT BOTHER TO FURN ISH THE REMAND REPORT IN TIME BEFORE THE LEARNED CIT ( A ) AFTER VERIFICATION OF THE NEW EVIDENCES, IF ANY, FILED BY THE ASSESSEE. HENCE THE ACTION OF THE LEARNED CIT ( A ) IN DIRECTLY PROCEEDING TO DISPOSE OFF THE APPEAL WITHOUT WAITING FOR THE REMAND REPORT IN THESE FACTS AND CIRCUMSTANCES CANNOT BE FAULTED WITH. WE FIND THAT THE REVENUE IN ITS GROUNDS OF APPEAL HAD DULY ACCEPTED THE FACT OF RECEIPT OF GIFT BY THE ASSESSEE FROM HER HUSBAND AS GENUINE AND HAVING DONE SO, THERE IS NO NEED TO PREFER ANY APPEAL BEFORE US. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE HOLD THAT THE ASSESSEE HAD DULY DISCHARGED HER ONUS IN TERMS OF SECTION 68 OF THE ACT WITH REGARD TO THE GIFTS RECEIVED BY HER FROM HUSBAND AND HENCE WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER OF THE LEARNED CITA IN THIS REGARD. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNC ED IN TH E COURT ON 16.09.2015. SD/ - SD/ - [MAHAVIR SINGH] [M.BALAG ANESH] JUDICIA L MEMBER ACCOUNTANT MEMBER DATE: 16.09.2015. R.G.(.P.S.) ITA NO. 94/KOL/2013 SMT.USHA DATT A.YR. 2008 - 09 4 COPY OF THE ORDER FORWARDED TO : 1 . SMT. USHA DATT, C/O A.S.GUPTA & CO., 10, OLD POST OFFICE STREET, FLAT NO.24 - 25, KOLKATA - 700001. 2 THE A.C.I.T., CIRCLE - 36, KOLKATA. 3 . THE CI T - XII , KOLKATA , 4. THE CIT(A) - XX , KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY , BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES