Smt Preksha Kedia, Kolkata V. ITO, WD-24(4), KOLKATA, Kolkata

ITA 949/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9151 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 20-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 05-05-2016
• Court: TRIBUNAL
• Department Lawyers: SUDHANSU BISWAS
• Assessee Lawyers: MANISH TIWARI
• Keywords: Gift
• Section: 143(3)

Judgement Text

I.T.A. NO. 949/KOL./2016 ASSESSMENT YEAR: 2007-2008 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 949/KOL/ 2016 ASSESSMENT YEAR: 2007-2008 SMT. PREKSHA KEDIA,................................ ....................................APPELLANT 2, RAJA WOODMUNT STREET, 3 RD FLOOR, KOLKATA-700 001 [PAN: ACJPA 0683 J] -VS.- INCOME TAX OFFICER,................................ .....................................RESPONDENT WARD-24(4), KOLKATA, 169, A.J.C. BOSE ROAD, KOLKATA-700 014 APPEARANCES BY: SHRI MANISH TIWARI, FCA, FOR THE ASSESSEE SHRI SUDHANSU BISWAS, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MARCH 09, 2017 DATE OF PRONOUNCING THE ORDER : MARCH 17, 2017 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-19, KOLKATA DA TED 12.02.2016 AND THE SOLITARY ISSUE ARISING OUT OF THE SAME RELATES TO THE ADDITION OF RS.6,24,831/- MADE BY THE ASSESSING OFFICER AND CON FIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF GIFTS RECEIVED BY THE AS SESSEE ON THE OCCASION OF MARRIAGE BY TREATING THE SAME AS UNEXPLAINED/UNP ROVED. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 03.08.2007 DECLARING TOTAL INCOME OF RS.70,305/-. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE OF HAVING RE CEIVED GIFTS OF RS.9,99,743/- IN THE FORM OF JEWELLERY, CHEQUES AND CASH ON THE OCCASION OF HER MARRIAGE HELD ON 16.04.2006 WAS EXAMINED BY THE ASSESSING I.T.A. NO. 949/KOL./2016 ASSESSMENT YEAR: 2007-2008 PAGE 2 OF 5 OFFICER. ON SUCH EXAMINATION, THE ASSESSING OFFICER HELD THAT THE GIFT OF RS.1,00,000/- CLAIMED TO BE RECEIVED BY THE ASSESSE E BY CHEQUE FROM HER FATHER-IN-LAW SHRI GOPAL KEDIA WAS NOT SATISFACTORI LY EXPLAINED FOR THE FOLLOWING REASONS:- 1. DECLARATION WAS MADE ON STAMP PAPER OF RS.10/-. IT WAS SIGNED BY THE DONOR, SRI GOPAL KEDIA AND NOTARI ZED BY SRI DILIP KUMAR BASU, NOTARY TO THE GOVERNMENT OF W EST BENGAL, REGD. NO. 29617 ON THE SAME DATE, I.E. 26.0 2.2007 BUT THE DATE OF ISSUE OF THE STAMP PAPER WAS RECORD ED ON ITS REVERSE AS 12.03.2007. 2. THE DONOR DECLARED TO HAVE MADE THE GIFT VIDE CHEQUE NO. 252483 DATED 24.02.2007, DRAWN ON HDFC BANK LIMITED. WHILE VERIFYING THE BANK STATEMENT OF THE ASSESSEE, NO CREDIT AGAINST THE AFOREMENTIONED CHEQ UE WAS FOUND. 3. AS REGARDS THE GIFTS RECEIVED IN CASH FROM 77 DI FFERENT PERSONS AGGREGATING TO RS.5,24,831/-, THE ASSESSING OFFICER DEPUTED HIS INSPECTOR TO CONTACT THE SAID PERSONS IN ORDER TO VERIFY THE CLAIM OF THE ASSESSEE. AS REPORTED BY THE INSPECTOR TO THE ASSESSING OFFICER, NONE OF THE SAID PERSONS CHOSEN BY HIM FOR THE PURPOSE OF VERIFICATI ON COULD BE TRACED OUT AT THE GIVEN ADDRESSES. THE ASSESSING OFFICER, THER EFORE, REQUIRED THE ASSESSEE TO PRODUCE THOSE PERSONS BEFORE HIM FOR VE RIFICATION, BUT THE ASSESSEE FAILED TO PRODUCE THEM. THE ASSESSING OFFI CER, THEREFORE, TREATED EVEN THE ENTIRE CASH GIFT AMOUNT OF RS.5,24,831/- A S UNEXPLAINED AND THE TOTAL ADDITION OF RS.6,24,831/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED/UNPROVED MARRIAG E GIFTS IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN O RDER DATED 30.12.2009. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THE SUBMISSIONS MADE BY THE ASSESSEE IN SUPPORT OF HER CASE ON THE ISSUE OF MARRIAGE GIFTS WAS NOT FOUND SATISFACTORY BY HIM, THE LD. CIT(APPEALS) PROCEEDED TO CONFIRM THE ADDITION OF I.T.A. NO. 949/KOL./2016 ASSESSMENT YEAR: 2007-2008 PAGE 3 OF 5 RS.6,24,831/- MADE BY THE ASSESSING OFFICER FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 6 OF HIS IMPUGNED ORDER:- I HAVE CONSIDERED THE FACTS OF THE CASE. OUT OF TH E TOTAL CLAIM OF RS.9,99,743/- AS GIFTS RECEIVED, THE ASSES SING OFFICER HAD FOUND THAT THE GENUINENESS OF CLAIM FOR RS.6,24,831/- COULD NOT BE VERIFIED AND HAD ADDED B ACK THE SAME TO THE INCOME. I FIND THAT THE ASSESSING O FFICER HAD POINTED OUT DEFECTS IN THE NOTARIZED STAMP PAPE R ITSELF WHICH IS NO WAY HAS BEEN COUNTERED BY THE APPELLANT. SIMILARLY, THE ASSESSING OFFICER HAD GIV EN AN OPPORTUNITY TO PRODUCE THE DONORS BEFORE HIM IN SUP PORT OF HIS CLAIM AS THEY WERE NOT FOUND AT THE ADDRESSE S FURNISHED BY THE ASSESSEE. THE ASSESSEE DID NOT AVA IL OF THE OPPORTUNITY. UNDER THE CIRCUMSTANCES, I DECLINE TO INTERFERE WITH THE ACTION OF THE ASSESSING OFFICER. THE ADDITION OF RS.6,24,831/- IS CONFIRMED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS REGARDS T HE GIFT OF RS.1,00,000/- CLAIMED TO BE RECEIVED BY THE ASSESSEE FROM HER FAT HER-IN-LAW SHRI GOPAL KEDIA BY CHEQUE, IT IS OBSERVED THAT THE GENUINENES S OF THE SAME HAS NOT BEEN ACCEPTED BY THE ASSESSING OFFICER FOR TWO REAS ONS. FIRSTLY, HE FOUND THAT THE DECLARATION OF GIFT MADE BY THE DONOR ON 2 6.02.2007 WAS ON THE STAMP PAPER ISSUED ON 12.03.2007. IN THIS REGARD, T HE LD. COUNSEL FOR THE ASSESSEE HAS EXPLAINED THAT SINCE THE CHEQUE FOR MA RRIAGE GIFT WAS GIVEN BY SHRI GOPAL KEDIA ON 26.02.2007, THE DECLARATION OF GIFT MADE SUBSEQUENTLY AFTER THE ISSUANCE OF THE STAMP PAPER WAS GIVEN THE SAME DATE ON 26.02.2007. IN MY OPINION, THIS EXPLANATION OFFERED BY THE LD. COUNSEL FOR THE ASSESSEE IS A PLAUSIBLE ONE AND IT CANNOT BE SAID MERELY ON THE BASIS OF DATE OF THE ISSUE OF STAMP PAPER ITSEL F THAT THE DECLARATION GIVEN BY THE DONOR IS FRAUDULENT. AS REGARDS THE OT HER OBJECTION RAISED BY THE ASSESSING OFFICER THAT THE CREDIT FOR THE SUM O F RS.1,00,000/- CLAIMED TO BE RECEIVED BY THE ASSESSEE AS MARRIAGE GIFT BY CHEQUE FROM SHRI GOPAL KEDIA WAS NOT FOUND IN HER BANK ACCOUNT, THE LD. CO UNSEL FOR THE ASSESSEE I.T.A. NO. 949/KOL./2016 ASSESSMENT YEAR: 2007-2008 PAGE 4 OF 5 HAS FILED COPY OF THE BANK ACCOUNT OF THE ASSESSEE WITH HDFC BANK, WHICH SHOWS THE CREDIT OF RS.1,00,000/- ON 01.03.2007. IN MY OPINION, THIS ASPECT REQUIRES VERIFICATION BY THE ASSESSING OFFIC ER IN VIEW OF SPECIFIC CONTRARY FINDING RECORDED BY HIM IN THE ASSESSMENT ORDER. I, THEREFORE, RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFF ICER FOR THE LIMITED PURPOSE OF VERIFYING THE RELEVANT CREDIT IN THE BAN K ACCOUNT OF THE ASSESSEE FOR THE AMOUNT OF GIFT IN QUESTION AND ALL OW APPROPRIATE RELIEF TO THE ASSESSEE ON THE BASIS OF SUCH VERIFICATION. 6. AS REGARDS THE CASH GIFTS CLAIMED TO BE RECEIVED BY THE ASSESSEE FROM 77 DIFFERENT PERSONS ON THE OCCASION OF MARRIA GE, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD BEFORE THE ASSESS ING OFFICER THE DETAILS OF SUCH GIFTS INCLUDING THE NAME AND ADDRESS OF THE DONORS, THEIR RELATIONSHIP WITH THE ASSESSEE AND PERMANENT ACCOUN T NUMBERS. AS SUBMITTED BY HIM, EVEN THOUGH THE ASSESSING OFFICER RELIED ON THE REPORT OF THE INSPECTOR TO DOUBT THE GENUINENESS OF THE SA ID GIFTS, IT IS NOT MADE CLEAR BY THE INSPECTOR AS TO WHO WERE THE PARTIES C HOSEN BY HIM FOR VERIFICATION AND WHAT EXACTLY WAS THE OUTCOME OF TH E ENQUIRY MADE BY HIM WITH THEM. AS FURTHER SUBMITTED BY HIM, THE PRA CTICE OF GIVING CASH GIFTS ON THE OCCASION OF MARRIAGE BY THE FRIENDS AN D RELATIVES IS COMMON IN THE INDIAN SOCIETY AND THE ASSESSING OFFICER WAS NOT JUSTIFIED IN NOT TAKING INTO CONSIDERATION THE SAID PRACTICE WHILE T REATING THE ENTIRE AMOUNT OF GIFTS RECEIVED FROM 77 DIFFERENT PERSONS AS UNPROVED/UNEXPLAINED. THE LD. D.R., ON THE OTHER HA ND, HAS CONTENDED THAT THE ASSESSEE FAILED TO PRODUCE THE CONCERNED D ONORS FOR VERIFICATION BEFORE THE ASSESSING OFFICER DESPITE SPECIFIC OPPOR TUNITY GIVEN IN THIS REGARD. IT IS NOTED IN THIS REGARD THAT THE ASSESSE E ATLEAST COULD HAVE PRODUCED CONFIRMATIONS OF SOME OF THE CONCERNED DON ORS, ESPECIALLY WHEN OTHER DETAILS, SUCH AS NAMES AND ADDRESSES OF THE D ONORS AS WELL AS THEIR PERMANENT ACCOUNT NUMBERS, WERE FURNISHED BY HER ON RECORD TO DISCHARGE THE PRIMARY ONUS AND THE ASSESSING OFFICE R COULD HAVE VERIFIED THE CLAIM OF THE ASSESSEE ON THE BASIS OF SUCH CONF IRMATIONS. KEEPING IN VIEW ALL THESE FACTS OF THE CASE, I AM OF THE VIEW THAT THE MATTER SHOULD GO I.T.A. NO. 949/KOL./2016 ASSESSMENT YEAR: 2007-2008 PAGE 5 OF 5 BACK TO THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER GIVING THE ASSESSEE ONE MORE OPPORTUNITY OF PROVING THE GENUIN ENESS OF THE CASH GIFT BY FILING SOME CONFIRMATIONS. WHILE DECIDING THE IS SUE, THE ASSESSING OFFICER SHALL TAKE INTO CONSIDERATION THE COMMON PR ACTICE OR CUSTOM PREVAILING IN THE INDIAN SOCIETY TO GIVE CASH GIFTS TO THE BRIDE AND GROOM ON THE OCCASION OF MARRIAGE AND CONSIDER THE CLAIM OF THE ASSESSEE ABOUT THE REASONABLENESS OF SUCH GIFTS DEPENDING ON THE S TATUS OF THE FAMILY IN THE SOCIETY. I ACCORDINGLY SET ASIDE THE IMPUGNED O RDER OF THE LD. CIT(APPEALS) ON THIS ISSUE AND RESTORE THE MATTER T O THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 17, 201 7. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 17 TH DAY OF MARCH, 2017 COPIES TO : (1) SMT. PREKSHA KEDIA, 2, RAJA WOODMUNT STREET, 3 RD FLOOR, KOLKATA-700 001 (2) INCOME TAX OFFICER, WARD-24(4), KOLKATA, 169, A.J.C. BOSE ROAD, KOLKATA-700 014 (3) COMMISSIONER OF INCOME TAX(APPEALS)-19, KOLKAT A (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.