ACIT, CIR-38, KOLKATA, Kolkata V. Sri Prem Kumar Choudhury, Kolkata

MA 105/KOL/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4553 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 07-10-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Keywords: Unexplained cash credit; Gift
• Section: 131; 68

Judgement Text

M.A. NO. 105/KOL/2015 (IN I.T.A. NO 1103/KOL./ 2012) ASSESSMENT YEAR: 2002-2003 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI N.V. VASUDEVAN, JUDICIAL MEMBER M.A. NO. 105/KOL/2015 (ARISING OUT OF I.T.A. NO. 1103/KOL/2012) ASSESSMENT YEAR: 2002-2003 ASSISTANT COMMISSIONER OF INCOME TAX,.............. ..................APPLICANT CIRCLE-38, KOLKATA, 18, RABINDRA SARANI, PODDAR COURT, KOLKATA-700 001 -VS.- SHRI PREM KUMAR CHOWDHURY,......................... .....................RESPONDENT 308A, RABINDRA SARANI, KOLKATA-700 006 [PAN NO. ACTPC 3303 R] APPEARANCES BY: MD. GHAYAS UDDIN, JCIT, SR. D.R., FOR THE DEPARTMENT SHRI PREM KUMAR CHOWDHURY, A.R. (SELF), FOR THE APP LICANT DATE OF CONCLUDING THE HEARING : JUNE 03, 2016 DATE OF PRONOUNCING THE ORDER : JUNE 03, 2016 O R D E R PER SHRI P.M. JAGTAP :- BY THIS MISCELLANEOUS APPLICATION, THE REVENUE IS S EEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 16 TH JUNE, 2015 PASSED IN I.T.A. NO. 1103/KOL/2012. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. D.R. HAS SUBMITTED THAT THE RELEVANT ASPECTS, SUCH AS GENUINENESS OF THE GIFTS AND CREDITWORTHINESS OF THE DONORS HAVE NOT BEEN TAKEN INTO CONSIDERATION B Y THE TRIBUNAL WHILE DECIDING THE ISSUE RELATING TO THE ADDITION OF RS.2 0,00,000/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPE ALS) ON ACCOUNT OF THE M.A. NO. 105/KOL/2015 (IN I.T.A. NO 1103/KOL./ 2012) ASSESSMENT YEAR: 2002-2003 PAGE 2 OF 4 GIFTS TREATING THE SAME AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 AND THE SAID ADDITION HAS BEEN DELETED WITHOUT TAKING I NTO CONSIDERATION THESE RELEVANT ASPECTS, WHICH IS CONTRARY TO THE DE CISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT-VS.- MIHIR K ANTI HAZRA REPORTED IN 375 ITR 555. HE HAS CONTENDED THAT THE ISSUE RELATI NG TO THE ADDITION MADE UNDER SECTION 68 ON ACCOUNT OF UNEXPLAINED GIF TS THUS HAS BEEN DECIDED BY THE TRIBUNAL WITHOUT APPLYING THE DECISI ON OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF MIHIR KANTI HAZR A (SUPRA) AND SUCH NON-APPLICATION OF THE JUDGMENT OF THE HONBLE JURI SDICTIONAL HIGH COURT CLEARLY AMOUNTS TO A MISTAKE APPARENT FROM RECORD, WHICH IS LIABLE TO BE RECTIFIED UNDER SECTION 254(2). THE ASSESSEE, ON TH E OTHER HAND, HAS SUBMITTED THAT THE TRIBUNAL HAS ALREADY CONSIDERED ALL THE RELEVANT ASPECTS OF THE MATTER WHILE DELETING THE ADDITION M ADE ON ACCOUNT OF UNEXPLAINED GIFTS AND THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AS ALLEGED BY THE REVENUE. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL AVAILABLE ON RECORD, IT IS OBSERVED THAT T HE ISSUE INVOLVED IN THE APPEAL OF THE ASSESSEE RELATING TO THE ADDITION MAD E UNDER SECTION 68 ON ACCOUNT OF GIFTS TREATING THE SAME AS UNEXPLAINED C ASH CREDITS HAS BEEN DECIDED BY THE TRIBUNAL VIDE PARAGRAPH NO. 6 OF ITS ORDER DATED 16.06.2015, WHICH READS AS UNDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. THE MAIN THRUST OF THE AO AND THE LD. CIT(A) IN DISALLOWING THE GIFTS SO RECEIVED IS THAT THE DONORS ARE NOT GENUINE DON ORS, NOT RELATED WITH THE DONEE. IN THIS REGARD THE DONORS HAVE PERSONALLY AP PEARED BEFORE THE AO, WHO WERE EXAMINED U/S 131 OF THE ACT, WHO HAVE ALSO FILED THE DIRECT CONFIRMATION TO THE AO AND ALSO THE IDENTITY CONFIR MING THE GIFT. THE SOURCE OF THE GIFT AS ALSO STANDS EXPLAINED. AS FAR AS RELATION IS CONCERNED, IN THE IMPUGNED YEAR THE BLOOD RELATION IS NOT NECESSARY FOR THE GIFT TO BE A GENUINE GIFT BUT IN THE IMPUGNED Y EAR THEIR RELATIONSHIP ALSO MATTERS A LOT AND IN THE PRESENT CASE THE DONOR IS STATED TO BE A FRIEND OF THE ASSESSEE, WHO HAD SUBMITTED HIS EXPLANATION FOR THE SOURCE OF THE GIFT, A COPY OF THE BANK ACCOUNT OF THE DONOR IS ON RECORD ALONG WITH THE INCOME TAX RETURN OF THE IMPUGNED YEAR AND OF THE PRECEDING YEAR. IN ALL PROBABILITY THE GIFT IS FOUND TO BE GENUINE AND T HE ASSESSEE HAS PROVED THE IDENTITY, CREDITWORTHINESS OF THE DONOR AS WELL AND THEREFORE RELIANCE M.A. NO. 105/KOL/2015 (IN I.T.A. NO 1103/KOL./ 2012) ASSESSMENT YEAR: 2002-2003 PAGE 3 OF 4 OF VARIOUS COURTS BY THE LD.CIT(A) DOES NOT HELP TH E REVENUE, IN THE CIRCUMSTANCES AND FACTS OF THE PRESENT CASE. ACCORD INGLY WE REVERSE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO DELETE THE ADDITIONS SO MADE. THUS ALL THE GROUNDS OF ASSESSEE ARE ALLOWED. A PERUSAL OF THE RELEVANT OBSERVATIONS RECORDED BY THE TRIBUNAL IN PARA 6 OF ITS ORDER (EMPHASIS SUPPLIED BY BOLD LETTERS) SH OWS THAT ALL THE RELEVANT ASPECTS INCLUDING ESPECIALLY THE GENUINENE SS OF THE GIFTS AS WELL AS THE CREDITWORTHINESS OF THE DONORS WERE TAKEN IN TO CONSIDERATION BY THE TRIBUNAL AND ONLY AFTER HAVING FOUND THAT THE G IFTS WERE GENUINE AND THE ASSESSEE HAD PROVED THE CREDITWORTHINESS OF THE DONORS THAT THE TRIBUNAL DELETED THE ADDITION MADE UNDER SECTION 68 . IN OUR OPINION, THERE IS THUS NO MISTAKE IN THE ORDER OF THE TRIBUN AL AS ALLEGED BY THE REVENUE AND THE TRIBUNAL HAVING RECORDED ITS SATISF ACTION ABOUT GENUINENESS OF THE GIFTS AS WELL AS THE CREDITWORTH INESS OF THE DONORS, IT CANNOT BE SAID THAT THE RATIO OF THE DECISION OF TH E HONBLE CALCUTTA HIGH COURT IN THE CASE OF MIHIR KANTI HAZRA (SUPRA) IS A PPLICABLE AND THERE IS NON-APPLICATION OF THE SAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT BY THE TRIBUNAL WHILE DECIDING THIS ISSUE. WE , THEREFORE, FIND NO MERIT IN THIS MISCELLANEOUS APPLICATION FILED BY TH E REVENUE AND DISMISS THE SAME. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 03, 2016 . SD/- SD/- (N.V. VASUDEVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 3 RD DAY OF JUNE, 2016 COPIES TO : (1) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-38, KOLKATA, 18, RABINDRA SARANI, PODDAR COURT, KOLKATA-700 001 M.A. NO. 105/KOL/2015 (IN I.T.A. NO 1103/KOL./ 2012) ASSESSMENT YEAR: 2002-2003 PAGE 4 OF 4 (2) SHRI PREM KUMAR CHOWDHURY, 308A, RABINDRA SARANI, KOLKATA-700 006 (3) COMMISSIONER OF INCOME TAX, KOLKATA- , K OLKATA (4) THE DEPARTMENTAL REPRESENTATIVE (5) CIT(APPEALS)-XXIV, KOLKATA (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.