Silla Siva Prasad, Berhampur V. CIT, Bhubaneswar

ITSSA 10/CTK/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8175 (ITAT-CUTTACK)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-06-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 27-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: S BANDOPADHAYAS M RAO
• Keywords: Gift; Income from undisclosed sources; Reasonable cause; Corroborative evidences
• Section: 68

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK (BEFORE S/SHRI K.K. GUPTA AM & K.S.S.PRASAD RAO, J M) I.T(SS)A.NOS.008 TO 011/CTK/2012 ASSESSMENT YEARS: 2000-01, 2002-03, 2003-04 & 2004- 05 SILLA SIVA PRASAD BIG BAZAR, BERHAMPUR PA NO.AGVPS 3386 G VS DCIT, AAYAKAR BHAVAN, BERHAMPUR APPELLANT RESPONDENT APPELLANT BY: SHRI S.BANDOPADHAYA/S.M.RAO RESPONDENT BY: SMT. PARAMITA TRIPATHY DATE OF HEARING: 18.6.2012 DATE OF PRONOUNCEMENT: 22.6.2012 ORDER PER BENCH THESE FOUR APPEALS ARE FILED BY THE ASSESSEE AGAIN ST SEPARATE ORDERS DATED 25.3.2001 OF THE CIT (A), BERHAMPUR FOR THE ASSESSM ENT YEARS 2000-01, 2001-02, 2003-04 AND 2004-05, RESPECTIVELY. 2. ALL THE APPEALS ARE TIME BARRED BY 242 DAYS. TH E ASSESASEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY, INTER ALIA, S TATING THAT THE DELAY WAS OCCURRED DUE TO THE FACT THAT THE BROTHER OF THE ASSESSEE SHRI S ILLA MALLESWAR RAO, WHO LOOKS AFTER THE TAX MATTERS, UNDERWENT KIDNEY TRANSPLANTATION OPERA TION AND AS SUCH THE MATTER OF FILING THE APPEALS BEFORE THE TRIBUNAL COULD NOT BE ATTEND ED TO. ONLY AFTER HIS RECOVERY, ASSESSEE COULD FILE THE APPEAL. IN SUPPORT OF THIS , THE ASSESSEE HAS FILED A MEDICAL CERTIFICATE AS WELL AS AFFIDAVIT SWORN BY SILLA MAL LESWAR RAO. 3. ON GOING THROUGH THE ABOVE FACTS AND AFTER HEARI NG BOTH PARTIES, WE ARE SATISFIED THAT THE DELAY IN FILING APPEALS BEFORE THE TRIBUNA L WAS OCCURRED DUE TO A REASONABLE CAUSE. ACCORDINGLY, WE CONDONE THE DELAY AND PROCE ED TO DECIDE THE APPEALS ON MERITS. I.T(SS).A.NOS.008 TO 011/CTK/2012 ASSESSMENT YEARS: 2001-01, 2002-03, 2003-04 & 2004- 05 2 4. THE ONLY ISSUE RAISED IN I.T.A. NOS.008, 009 & 010/CTK/2012 FOR THE ASSESSMENT YEARS 2000-2001, 2002-03 AND 2003-04 IS THAT THE CIT(A) HAS CONFIRMED THE ACTION OF AO IN DISALLOWING THE GIFTS RECEIVED BY T HE ASSESSEE FROM HIS BROTHER-IN-LAW, SHRI SATYANARAYAN SUBUDHI. SINCE THE IDENTICAL FAC TS ARE RAISED IN THESE APPEALS, THEY WERE CLUBBED TOGETHER AND DISPOSED OF ACCORDINGLY. 5. FACTS IN BRIEF ARE THAT DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE, FOR THE ASSESSME NT YEARS UNDER CONSIDERATION, HAD RECEIVED THE GIFTS FROM HIS BROTHERIN-LAW SHRI SAT YANARAYAN SUBUDHI AS UNDER: A.Y. 2000-2001 : RS.55,000 A.Y. 2002-03 : RS.14,000 A.Y. 2003-04 : RS.14,000 6. ALTHOUGH FOR THE ASSESSMENT YEAR 2000-2001, THE ASSESSEE HAS SHOWN TO HAVE RECEIVED A SUM OF RS.55,000 TOWARDS SALES PROCEEDS OF LAND SITUATED AT KONISI, HOWEVER, LATER ON, LD A.R. IN THE COURSE OF ASSESSMENT PROCE EDINGS, SHIFTED THE STAND AND ARGUED THAT THE RECEIPT WAS NOT ON ACCOUNT OF SALE OF LAND BUT IT WAS THE GIFT RECEIVED FROM HIS BROTHER IN-LAW SHRI SATYANARAYAN SUBUDHI. SINCE TH E ASSESSEE FAILED TO PRODUCE EVIDENCE OF RECEIPT OF GIFT, THE AO ADDED RS.55,000 , FOR A.Y. 2000-20001, RS.14,000 FOR A.Y. 2002-03 AND RS.14,000 FOR A.Y. 2003-04 TO THE RETURNED INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE I.T.ACT. AGGRIEVED, ASSESS EE CARRIED THE MATTER IN APPEAL BEFORE LD CIT(A) FOR ALL THREE ASSESSMENTS YEARS BUT WITHO UT ANY SUCCESS. FURTHER AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. 7. ON CAREFUL ANALYSIS OF THE ORDER OF THE CIT (A) IN THE LIGHT OF MATERIAL MADE AVAILABLE BEFORE THE TRIBUNAL AS WELL AS RIVAL SUBM ISSIONS OF BOTH PARTIES, WE FIND THAT FOR THE ASSESSMENT YEAR 2000-2001, THE ASSESSEE HAS SHO WN AN AMOUNT OF RS.55,000 TOWARDS SALE OF LAND. HOWEVER AT THE TIME OF ASSES SMENT PROCEEDINGS, HE SHIFTED HIS STAND AND CONTENDED THAT THE AMOUNT WAS RECEIVED FR OM HIS BROTHER IN LAW AS GIFT. IN OTHER TWO ASSESSMENT YEARS, HE HAS SHOWN RS.14,000 AS GIFT FROM HIS BROTHER IN LAW. THE MEMORANDUM OF GIFT WAS MADE BY SHRI CH. SATYANA RAYAN SUBUDHI, BROTHER-IN-LAW OF ASSESSEE ON A PLAIN PAPER CONTENDING THAT THE AMOUN T WAS GIVEN OUT OF LOVE AND I.T(SS).A.NOS.008 TO 011/CTK/2012 ASSESSMENT YEARS: 2001-01, 2002-03, 2003-04 & 2004- 05 3 AFFECTION. IT WAS CLAIMED THAT THE DONOR HAS FURNI SHED HIS INCOME TAX RETURN AND CONFIRMATORY LETTER. HOWEVER, THE BANK DETAILS FRO M WHERE THE AMOUNT HAS BEEN DEBITED, SOURCE OF INCOME. IT IS AN ADMITTED FACT THAT MERE FURNISHING OF CONFIRMATORY LETTER FROM THE DONOR IS NOT ENOUGH TO ESTABLISH TH E VALIDITY OF GIFT. IN THIS CASE, THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH THE CREDITW ORTHINESS OF THE DONOR AND GENUINENESS OF TRANSACTION EXCEPT IDENTITY. THEREF ORE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS NOT ESTABLISHED THE GENUINENE SS OF GIFTS. IN VIEW OF THIS, WE SEE NO REASON TO INTERFERE WITH THE ORDER OF LD CIT(A) AND UPHOLD THE SAME BY REJECTING THE GROUND OF APPEAL TAKEN BY ASSESSEE FOR ALL THREE AS SESSMENT YEARS UNDER CONSIDERATION. 8. IN I.T.A. NO.011/CTK/2012 FOR A.Y. 2004-05 , THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF THE AMOUNT OF RS.1,00 ,312 BEING THE AGGREGATE OF LOANS FROM S/SHRI R.K.BISWAL, DURGA PR ASAD ISWAL, S.K.SWAIN, J. MALLKIKARJUNA RAO, K. NANIBABU AND K. V.RAVANA, THEREBY NEGLECTING TO TAKE INTO CONSIDERATION THE FACT THAT THE APPELLANT HAD DISCHARGED HIS PRIMARY ONUS OF PROVING THE GENUINEN ESS OF THE LOANS BY FILING THE CONFIRMATORY LETTERS FROM THE LOAN CR EDITORS ALONGWITH COPIES OF THEIR I.T,.RETURNS BEFORE THE AO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD CITA) ERRED IN REFUSING TO ENTERTAIN THE CLAIM OF ALLOWANCE OF INTEREST PAYMENT OF RS.98,959 TO SBI U/S.36(1)(III) OF THE I.T.ACT, 196 1. 9. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD TAKEN LOAN OF RS.1,00,312 FROM S/S HRI R.K.BISWAL, DURGA PRASAD BISWAL, S.K.SWAIN, J. MALLIKARJUNA RAO, K. NANIBABU AND K.V.RAVANA,. SINCE THE ASSESSEE FAILED TO ESTABLISH THE IDENTITY, GENUINENESS OF TR ANSACTIONS AND CREDITWORTHINESS OF THE CREDITORS, THE AO TREATED THE TOTAL AMOUNT OF RS.1, 00,312 AS UNACCOUNTED INCOME U/S.68 OF THE I.T.ACT, 1961. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD CIT(A) BUT WITHOUT ANY SUCCESS. 10. ON CAREFUL ANALYSIS OF THE ORDER OF THE CIT (A ) IN THE LIGHT OF MATERIAL MADE AVAILABLE BEFORE THE TRIBUNAL AS WELL AS RIVAL SUBM ISSIONS OF BOTH PARTIES, WE FIND THAT THE LOAN OF RS.1,00,312 TAKEN BY THE ASSESSEE FROM DIFFERENT PERSONS HAS NOT BEEN I.T(SS).A.NOS.008 TO 011/CTK/2012 ASSESSMENT YEARS: 2001-01, 2002-03, 2003-04 & 2004- 05 4 PROVED WITH CORROBORATIVE EVIDENCES. IT WAS THE CO NTENTION OF THE ASSESSEE THAT CONFIRMATION LETTERS HAVE BEEN FILED BEFORE THE AO ALONGWITH THEIR SOURCE OF INCOME. THE ASSESSEE HAS TO ESTABLISH THE IDENTITY, GENUINE NESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE CREDITORS BUT THESE INGREDI ENTS HAVE NOT BEEN COMPLIED WITH BEFORE THE AUTHORITIES BELOW OR BEFORE US. SIMILAR ISSUE HAD COME UP FOR CONSIDERATION IN THE CASE OF SILLA VENKETSWAR IN I.T.A NO.16/CTK/ 2012 AND VIDE OUR ORDER OF EVEN DATE, WE HAVE CONFIRMED THE ACTION OF LD CIT(A) REJECTING THE GROUNDS OF APPEAL TAKEN BY ASSESSEE. FOLLOWING THE SAME, WE SEE NO REASON TO INTERFERE WITH THE ORDER OF LD CIT(A) AND, ACCORDINGLY, CONFIRM THE SAME BY REJECTING GRO UND NO.1 TAKEN BY ASSESSEE. 11. WITH REGARD TO GROUND NO.2, WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL MADE AVAILABLE BEFORE THE TRIBUNAL AS WELL AS ORDERS OF AUTHORITIES BELOW. IT IS NOTICED THAT THE ALLEGED INTEREST OF RS.98,959 PAID TO BANK WAS NOT MADE IN THE RETURN OF INCOME AND WHEREAS THE ASSESSEE HAS DISCLOSED SA LARY FROM SREE ALANKAR, INTEREST ON CAPITAL AND INCOME FROM OTHER SOURCES. THE CLAIM O F THE ASSESSEE THAT HE HAS PAID INTEREST OF RS.98,959 ON THE LOAN OF RS.8,27,000 T AKEN FROM SBI. IN VIEW OF THIS, WE RESTORE THE MATTER TO THE FILE OF AO TO VERIFY AS T O WHETHER THE ASSESSEE HAS PAID INTEREST OF RS.98,959 ON THE LOAN TAKEN FROM SBI AN D IF HE IS SATISFIED ON THE EXPLANATION OF THE ASSESSEE WITH MATERIAL FACTS, THEN THE AO IS DIRECTED TO ALLOW THE INTEREST PAID TO BANK. 12. IN FINE, APPEALS FOR ASSESSMENT YEAR 2000-2001, 2002-03 AND 2003-04 ARE DISMISSED AND APPEAL FOR A.Y. 2004-05 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ON THE OPEN COURT ON 22 ND JUNE, 2012 SD/- SD/- (K.K.GUPTA) (K.S.S.PRASAD RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22 ND JUNE, 2012 PARIDA I.T(SS).A.NOS.008 TO 011/CTK/2012 ASSESSMENT YEARS: 2001-01, 2002-03, 2003-04 & 2004- 05 5 COPY TO : 1. ASSESSEE- 2. ASSESSING OFFICER 3. CIT, BERHAMPUR 4. CIT (A), BERHAMPUR 5. D.R., ITAT, CUTTACK. 6. GUARD FILE. TRUE COPY BY ORDER SR. PVT. SECRETARY