Smt. Shivani Jain, Samana V. ITO, Patiala

ITA 962/CHANDI/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2323 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 04-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Gift; Source of fund

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 962/CHD/2011 ASSESSMENT YEAR : 2008-09 SMT. SHIVANI JAIN V THE I.T.O. #B-7/747, JAIN BASTI WARD 3, PATIALA NEAR POST OFFICE SAMANA PAN NO. AGWPJ 8625 Q (APPELLANT) (RESPONDENT) APPELLANT BY SHRI TEJ MOHAN SINGH RESPONDENT BY: SHRI J.S. NAGAR DATE OF HEARING : 17.4.2013 DATE OF PRONOUNCEMENT: 29 .4.2013 O R D E R PER T.R.SOOD, A.M THIS APPEAL IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A), PATIALA DATED 29.8.2011. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS: 1 THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITION OF RS. 3,00,000/- T REATING THE GIFT RECEIVED FROM HER BOTHER SHRI RAHUL JAIN T O BE 2 BOGUS AND WAS THE UNDISCLOSED INCOME OF THE APPELLA NT WHICH IS ARBITRARY AND UNJUSTIFIED. 2 THAT THE ASSESSEE HAVING ESTABLISHED THE IDENTITY , CREDITWORTHINESS AS WELL AS THE GENUINENESS OF THE TRANSACTION, NO ADDITION WHICH HAS BEEN UPHELD BY T HE LD. CIT(A) IS CALLED FOR AND AS SUCH THE ORDER IS ARBIT RARY AND UNJUSTIFIED. 3. THAT THE LD. CIT(A) HAS FURTHER IN UPHOLDING THE ADDITION OF RS. 50,000/- MADE ON ACCOUNT OF ALLEGE D LOW HOUSEHOLD WITHDRAWALS WHICH IS ARBITRARY AND UNJUSTIFIED. 3. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THA T DURING THE YEAR ASSESSEE HAD RECEIVED A GIFT OF RS. 3 LAKHS FROM HE R BROTHER SHRI RAHUL JIAN. THE ASSESSEE WAS ASKED TO FURNISH COPY OF GI FT DEED AND SOURCE OF FUNDS IN THE HANDS OF DONOR. IT WAS EXPLAINED T HAT GIFT WAS MADE BY SHRI RAHUL JAIN BY CHEQUE BY WITHDRAWING THE SAME F ROM HIS S.B. A/C NO. 01612010025456 MAINTAINED WITH ORIENTAL BANK OF COMMERCE, SAMANA. FROM VERIFICATION OF THIS BANK ACCOUNT, IT WAS NOTICED THAT SHRI RAHUL JAIN HAD DEPOSITED A CASH AMOUNT OF RS. 3 LAKHS ON 11.2.2008 ON THE SAME DAY, THE GIFT CHEQUE WAS ISSU ED. 4. ON FURTHER ENQUIRIES IT WAS POINTED OUT BY THE A SSESSEE THAT A SUM OF RS. 3 LAKHS HAD BEEN DEPOSITED BY SHRI RAHUL JAIN OUT OF WITHDRAWALS MADE FROM HIS BANK ACCOUNT WITH PUNJAB NATIONAL BANK. IT WAS EXPLAINED THAT SHRI RAHUL JAIN HAD TAKEN A LOAN OF RS. 4 LAKHS ON 7.1.2008 FROM M/S KESRIA JI COLD STORAGE PVT LTD VI DE CHEQUE NO. 612909 AND THE SAME WAS DEPOSITED IN ACCOUNT NUMBER 3 12790105183977 WITH PUNJAB NATIONAL BANK, SAMANA. CASH AMOUNTING TO RS. 4 LAKHS WAS WITHDRAWN FROM THIS BANK. THE ASSESSING OFFICER DID NOT BELIEVE THE STORY BECAUSE IT WAS EXPLAINED THAT SHRI RAHUL JAIN HAD KEPT THE CASH AT HIS HOME. EVEN THE PURPOSE FOR WITHDRAWAL WAS NOT GIVEN. IT WAS NOT BELIEVED THAT AFTER A GAP OF MOR E THAN A MONTH, RS. 3 LAKHS WAS AVAILABLE WITH SHRI RAHUL JAIN. IN THIS BACKGROUND, THE GIFT WAS NOT ACCEPTED AND WAS ADDED TO THE INCOME OF THE ASSESSEE. 5. BEFORE THE LD. CIT(A), THE SUBMISSIONS MADE BEFO RE THE ASSESSING OFFICER WERE REITERATED AND IT WAS FURTHE R SUBMITTED THAT SHRI RAHUL JAIN WAS AN EXISTING ASSESSEE WITH PAN NO. AB LPJ 4827 A. A COPY OF CAPITAL ACCOUNT WAS ALSO FURNISHED SHOWING A CAPITAL BALANCE OF RS. 16,08,487/- AS ON 31.3.2008 TO PROVE THE CAPACI TY OF THE DONOR. HOWEVER, THE LD. CIT(A) WAS NOT SATISFIED AND REJEC TED THE SUBMISSIONS AND CONFIRMED THE ADDITION. 6. BEFORE US, LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND CIT(A). HE F URTHER SUBMITTED THAT THERE WERE NO FINDINGS THAT MONEY WITHDRAWN BY M/S KESRIA JI COLD STORAGE PVT. LTD HAS BEEN UTILIZED ANYWHERE EL SE. IN FACT, ASSESSEE HAD WITHDRAWN THE MONEY AND ORIGINALLY THO UGHT OF GIVING THE GIFT IN CASH BUT SINCE HIS SISTER WAS NOT AVAILABLE , SO AFTER SOME TIME MONEY WAS DEPOSITED IN THE BANK AND A CHEQUE WAS IS SUED. THE ASSESSEE HAD ALREADY PROVED THE IDENTITY OF DONOR, THE SOURCE AND CAPACITY OF THE DONOR, THEREFORE, GIFT SHOULD NOT H AVE BEEN REJECTED. 4 7. ON THE OTHER HAND, THE LD. DR WHILE STRONGLY SUP PORTING THE ORDERS OF LOWER AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAD NOT SPECIFICALLY CLARIFIED WHY THE CASH WAS KEPT AT HOM E FOR SUCH A LONG PERIOD. 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSEE HAS PRODUCED THE GIFT DEED AND ALSO FURNISHED PAN N UMBER OF THE DONOR, CAPACITY OF THE DONOR HAS ALSO BEEN ESTABLIS HED BY GIVING A COPY OF CAPITAL ACCOUNT WITH THE FIRM WHERE SHRI RAHUL J AIN HAD A CREDIT BALANCE AS ON 1.4.2007 AMOUNTING TO RS. 16,08,487/- . FURTHER, THE ACTUAL SOURCE OF CASH HAS BEEN EXPLAINED. IT WAS ST ATED THAT MONEY WAS WITHDRAWN BY CHEQUE M/S KESIRIA JI COLD STORAGE. TH E CASH WAS WITHDRAWN FROM ONE SAVING BANK ACCOUNT WITH PUNJAB NATIONAL BANK ON 7.1.2008 AND DEPOSITED IN OTHER ACCOUNT ON 11.2. 2008. THIS CLEARLY SHOWS THAT CASH WAS DEPOSITED WITHIN A PERIOD OF AP PROXIMATELY A MONTH AND A FEW MORE DAYS. NO ADVERSE INFERENCE CAN BE TAKEN UNLESS AND UNTIL IT CAN BE PROVED THAT SHRI RAHUL JAIN HA S UTILIZED THE MONEY ANYWHERE LESE. WE ALSO NEED TO KEEP IN MIND THAT G IFT HAS BEEN GIVEN BY REAL BROTHER OF THE ASSESSEE WHO HAPPENS TO BE HIS YOUNGER SISTER. IN THESE CIRCUMSTANCES, WE HOLD THAT ASSESSEE HAS R ECEIVED GENUINE GIFT AND ACCORDINGLY WE DELETE THE ADDITION. 9. GROUND NO.2: DURING ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FURTHER NOTICED THAT ASSESSEE HAD WITHDRAWN A SUM OF RS. 40,000/- FOR HOUSEHOLD PURPOSES. ON AN ENQUIRY, IT WAS EXPLAINED THAT ASSESSEE WAS UNMARRIED LADY LIVING WITH HER PARENTS WHO HAD ALSO 5 WITHDRAWN MONEY FOR HOUSEHOLD EXPENSES. HOWEVER, A SSESSING OFFICER DID NOT ACCEPT THIS EXPLANATION AND ADDED A SUM OF RS. 50,000/- TOWARDS LOW HOUSE HOLD WITHDRAWALS. THE ABOVE ADDI TION WAS CONFIRMED BY LD. CIT(A). 10. BOTH THE PARTIES WERE HEARD. 11. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIN D THAT THE LADY IS UNMARRIED AND STAYING WITH HER PARENTS WHO WERE ALR EADY WITHDRAWING FOR HOUSEHOLD EXPENSES. IN THESE CIRCUMSTANCES, TH E WITHDRAWALS OF RS. 40,000/- SHOULD HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER AS SUFFICIENT. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) AND DELETE THE ADDITION. 12. IN THE RESULT, THE ASSESSEE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF APRIL, 2013. SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29 TH APRIL, 2013 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR 6