Shri Anilkumar Jain, Bhavnagar V. The ACIT, Circle-1, Bhavnagar

ITSSA 29/AHD/2016

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3512 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 13-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Assessee Lawyers: T P HEMANI
• Keywords: Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE, SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER AND SHRI S. S. GODARA, JUDICIAL MEMBER IT(SS)A NO. 29/AHD/2016 (ASSESSMENT YEAR: 2012-13) SHRI ANILKUMAR JAIN D-250, KALIABAD, BHAVNAGAR-364001 APPELLANT VS. ACIT, CIRCLE - 1, BHAVNAGAR RESPONDENT PAN: ACYPK8352R /BY ASSESSEE : SHRI T. P. HEMANI, A.R. /BY REVENUE : SHRI ANTONY PARIATH , SR. D.R. /DATE OF HEARING : 15.11.2017 /DATE OF PRONOUNCEMENT : 18.12.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 EMANATES AGAINST THE CIT(A)-6, AHMEDABADS ORDER DATED 14.10.2015, IN CA SE NO. CIT(A)-6/228/14-15, AFFIRMING ASSESSING OFFICERS ACTION MAKING SECTION 69A ADDITION OF UNEXPLAINED CASH AMOUNTING TO RS.3,50,000/- IN ASSESSMENT ORDER DATED 18.03.2014, IN PROCEEDINGS U/S. 143(3) R.W.S. 153C OF THE INCOME T AX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. RELEVANT FACTS ARE IN A NARROW COMPASS. IT EMER GES FROM THE CASE RECORD THAT THE STATE SURVEILLANCE TEAM OF KHANNA DISTRICT ADMI NISTRATION (PUNJAB) FOUND THE IT(SS)A NO. 29/AHD/16 [SHRI ANILKMAR JAIN VS. ACIT] A.Y. 2012-13 - 2 - ASSESSEE TO BE CARRYING THE AMOUNT IN QUESTION OF R S.3.5LACS DURING ELECTION CODE OF CONDUCT ON 17.01.2012. THE SAID AUTHORITIES PASSED ON THE NECESSARY INFORMATION TO THE DEPARTMENT. THE DEPARTMENTAL AUTHORITIES ISSUE D SECTION 132(A) NOTICE. THE ASSESSEE EXPLAINED THEREIN THAT HE HAD RECEIVED THE ABOVE AMOUNT AS GIFT FROM HIS MOTHER SMT. KAMLESH RANI. THE ASSESSING OFFICER HO WEVER TREATED THE SAID EXPLANATION AS AFTER THOUGHT AND NOT GENUINE TO MAK E THE IMPUGNED ADDITION OF UNEXPLAINED CASH U/S.69A OF THE ACT. 3. THE CIT(A) UPHOLDS ASSESSMENT FINDINGS AS FOLLOW S: 7. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDE R AND THE SUBMISSION OF THE APPELLANT. THE BRIEF FACTS OF THE APPEAL ARE THAT T HE APPELLANT WAS INTERCEPTED BY THE PUNJAB STATE ADMINISTRATION - STATIC SURVEILLANCE T EAM ON 17-1-2012 ALONG WITH CASH OF RS. 3,50,000/- AT POLICE NAKA AT G.T. ROAD, NR. KFC RESTAURANT, KHANNA. ON THE BASIS OF INFORMATION RECEIVED THE I.T. DEPARTMENT ISSUED NOT ICE TO THE APPELLANT ON 19-1-2012 AND VARIOUS OTHER NOTICES SUBSEQUENTLY HOWEVER, THE APP ELLANT DID NOT COMPLY. ON 4-1-2013 THE APPELLANT FILED E-RETURN AND DURING THE ASSESSM ENT PROCEEDINGS, THE AO HAS SPECIFICALLY ASKED THE ASSESSEE VIDE ORDER SHEET EN TRY DATED 19-2-2014 ABOUT THE SOURCES OF RS. 3,50,000/-. THE APPELLANT MERELY SUBMITTED THAT RS. 3,50,000/- WAS RECEIVED BY HIM AS GIFT FROM HIS MOTHER ON 17-1-2012 AND THE SAME WAS REFLECTED IN THE CASHBOOK. THE APPELLANT FURTHER SUBMITTED THAT THE SOURCES OF SMT . KAMLESH RANI JAIN FOR MAKING GIFT OF RS. 3,50,0007- ARE FROM THE SALE OF AN IMMOVABLE PR OPERTY FOR RS. 7,15,000/- ON 17-1- 2012 AND OUT OF THAT RS. 3,50,000/- WAS RECEIVED AS GIFT. 7.1 DURING THE APPELLATE PROCEEDINGS, APPELLANT FIL ED THE SIMILAR SUBMISSIONS. HOWEVER, THE CONTENTION OF THE APPELLANT WAS FOUND UNREASONABLE AND ILLOGICAL AS THE SEQUENCE OF EVENTS DO NOT SUPPORT THE CLAIM OF THE APPELLANT. IT IS SEEN THAT THE MOTHER OF THE APPELLANT SMT. KAMLESHRANI JAIN SOLD THE PROPER TY ON THE SAME DAY I.E. 17-1-2012 AND THE APPELLANT CLAIMED THAT AFTER TAKING THE GIFT OF RS. 3,50,000/- HE TRAVELLED BY ROAD OF APPROXIMATELY 1400 KMS FROM BHAVNAGAR TO KHANNA IN A SINGLE DAY. THE CONTENTION OF THE APPELLANT WAS FOUND VAGUE AND DEVOID OF MERIT AS IT IS IMPOSSIBLE TO COVER THIS MUCH OF DISTANCE BY ROAD JOURNEY IN A SINGLE DAY HENCE NOT TENABLE. 7.2 THE ENTIRE SEQUENCE OF EVENTS SEEMS TO BE ILLOG ICAL AND IRRATIONAL THEREFORE, VIDE ORDER SHEET DATED 15-9-2015 THE APPELLANT WAS ASKED TO FILE THE SEQUENCE OF EVENTS OF THE SALE OF PROPERTY, CASH RECEIVED, TRAVELING UNDERTAK EN BY THE ANILKUMAR JAIN AND CAUGHT BY THE POLICE, MODE OF TRAVEL ETC. HOWEVER, THE APPELL ANT DID NOT SUBMIT ANYTHING IN THIS REGARD AND SUBMITTED THAT THE MATTER MAY BE DECIDED AS PER THE WRITTEN SUBMISSION FILED. IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED VIEW T HAT THE APPELLANT WAS CAUGHT BY THE DISTRICT ADMINISTRATION WITH UNDISCLOSED MONEY OF R S. 3,50,000/- AND THE EXPLANATION AND DOCUMENTS SUBMITTED BY THE APPELLANT ARE FABRICATED AND NOT RELIABLE THEREFORE, THE ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED C ASH OF RS. 3,50,000/- U/S. 69A IS JUSTIFIED AND THE ADDITION IS CONFIRMED. THE GROUND OF APPEAL IS DISMISSED. 4. BOTH THE LEARNED REPRESENTATIVES REITERATE THEIR RESPECTIVE PLEADINGS DURING THE COURSE OF HEARING AGAINST AND IN SUPPORT OF THE IMPUGNED ADDITION. THE ASSESSEES STAND FROM THE DAY ONE IS THAT HE HAD RE CEIVED THE IMPUGNED SUM AS GIFT IT(SS)A NO. 29/AHD/16 [SHRI ANILKMAR JAIN VS. ACIT] A.Y. 2012-13 - 3 - FROM HIS MOTHER. BOTH THE LOWER AUTHORITIES HAVE N OWHERE SOUGHT TO TEST GENUINENESS OF THE ABOVE EXPLANATION BY ISSUING NOT ICE TO HIS MOTHER / DONOR FOR THE PURPOSE OF CONFIRMATION OF THE RELEVANT GIFT. THE CIT(A)S ABOVE EXTRACTED FINDINGS HOLD THAT IT IS HUMANLY IMPOSSIBLE FOR THE ASSESSEE TO TRAVEL FROM BHAVNAGAR TO KHANNA COVERING A DISTANCE OF APPROXIM ATELY 1400 KMS. IN A SINGLE DAY. BUT THE LEARNED CIT(A) HAS NOT NOTICED IT THA T THE ASSESSEES MOTHER SOLD AN IMMOVABLE PROPERTY ON THE VERY DAY FOR RS.7,15,000/ - IN KHANNA. THE SAID SALE DEED EXTRACTS FORMING PART OF THE CASE RECORDS STAT E THE ABOVE VENDORS ADDRESS TO BE IN KHANNA ONLY. THE ASSESSEE WAS ADMITTEDLY FOU ND TO BE CARRYING CASH ON THE DAY OF EXECUTION OF THIS SALE DEED. IT THEREFORE T RANSPIRES THAT HE HAD NOT TRAVELLED IN A SINGLE DAY FROM BHAVNAGAR TO KHANNA. WE ACCORD INGLY ARE OF THE OPINION THAT BOTH THE LOWER AUTHORITIES HAVE FAILED IN REJECTING ASSESSEES COGENT EXPLANATION TO HAVE RECEIVED THE AMOUNT IN QUESTION FROM HIS MOTHE R AS GIFT AFTER SALE OF THE IMMOVABLE PROPERTY IN QUESTION ON THE SAME DAY. WE ACCEPT ASSESSEES EXPLANATION ATTRIBUTING SOURCE OF THE IMPUGNED SUM TO THE ABOVE GIFT. THE IMPUGNED ADDITION IS THEREFORE DIRECTED TO BE DELET ED. 5. THIS ASSESSEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 18 TH DAY OF DECEMBER, 2017.] SD/- SD/- ( N. K. BILLAIYA ) ( S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL M EMBER AHMEDABAD: DATED 18/12/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0