Pushpa C. Varma, Kolkata V. DCIT, Circle - 35, Kolkata, Kolkata

MA 24/KOL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8716 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 02-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , ! ! ! ! /AND ' !' ' !' ' !' ' !' , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] # # $ # # $ # # $ # # $ !% !% !% !% /M. A. NO. 24/KOL/2012 !% !% !% !% /IN I.T.A NO. 2126/KOL/2010 $& '( $& '( $& '( $& '(/ // / ASSESSMENT YEAR: 2006-07 PUSHPA C. VARMA VS. DEPUTY COMMISSIONER OF INCOME-TAX, (PAN: ABSPV5402G) CIRCLE-35, KOLKATA. ( /APPLICANT ) (*+,/ RESPONDENT ) DATE OF HEARING: 01.06.2012 DATE OF PRONOUNCEMENT: 08.06.2012 - . /FOR THE APPLICANT: SHRI A. K. BANERJEE *+, - . /FOR THE RESPONDENT: SHRI NIRANJAN SATPATI / / ORDER PER MAHAVIR SINGH, JM/ ' !' ' !' ' !' ' !' , : THIS MISCELLANEOUS PETITION FILED BY ASSESSEE IS DI RECTED AGAINST THE ORDER PASSED BY TRIBUNAL DATED 29.12.2011 IN ITA NO.2126/K/2010 FOR ASSESSMENT YEAR 2006-07. 2. THROUGH THIS MISC. APPLICATION THE ASSESSEE CONT ENDED THAT THERE IS MISTAKE IN THE ORDER OF TRIBUNAL DATED 29.12.2011 IN THE OBSERVATIONS AS UNDER: EVEN NOW BEFORE US, LD. COUNSEL COULD NOT PRODUCE ANYTHING TO CONTRADICT THAT THESE FITS ARE DECLARED IN THE BALANCE SHEET OR CASH QUA THAT AMOUNT HAS BEEN WITHDRAWN FROM THE BALANCE SHEET OF THE RESPECTIVE DONORS. THE ASSESSEES CONTENTION IS THAT SHE HAS FILED COP IES OF DECLARATION, INCOME-TAX RETURNS, STATEMENT OF ACCOUNT AND OTHER DOCUMENTS AT PAGES 1 3 TO 31 OF ASSESSEES PAPER BOOK INDICATING GENUINENESS OF TRANSACTION WITHDRAWAL OF FUNDS FOR PAYMENT TO ASSESEE BY DONORS BY WAY OF GIFT AND THEIR CREDITWORTHINESS. WE FIND THAT THE TRUIB UNAL AFTER GOING THROUGH THESE DOCUMENTS NTED THAT WE CANNOT ACCEPT THE CONTENTIONS OF ASSESSEE THAT T HE BASIC REQUIREMENT OF PROVISIONS OF SECTION 68 TO PROVE GENUINENESS OF GI FTS OR SOURCE OF CREDITWORTHINESS, GENUINENESS OF TRANSACTION AND IDENTITY OF DONOR OR CREDITOR. WHEN A CASH ENTRY APPEARS IN THE ACCOUNTS OF ASSESSEE, HE HAS A LEGAL OBLIGATION TO EXPLAIN THE NATURE AND SOURCE OF SUCH CREDIT, IF ASSESSEE OFFERS AN EXPLANATION ABOUT CASH CREDIT , REVENUE CAN PUT ASSESSEE TO PROVE OF HIS EXPLANATION AND IF ASSESSEE FAILED TO TENDER EVIDEN CE OR BURKS ENQUIRY, ASSESSING OFFICER IS JUSTIFIED IN REJECTING THE EXPLANATION AND HOLDING AS INCOME FROM UNEXPLAINED SOURCES. IN THE PRESENT CASE, ASSESSING OFFICER IS RIGHT IN TREATIN G THE GIFTS AS UNEXPLAINED AND RIGHTLY ADD TO 2 MA NO. 24/K/2012 PUSHPA C. VARMA A. Y 2006-07 THE INCOME OF ASSESSEE, HENCE, WE CONFIRM THE ORDER OF CIT(A). THIS ISSUE OF ASSESEES APPEAL IS DISMISSED. ONCE THE TRIBUNAL HAS FORMED AN OPINION ON THE GIVE N FACTS IT IS NOT THE SUBJECT MATTER OF RECTIFICATION U/S. 254(2) OF THE ACT AND WE FIND NO MISTAKE APPARENT FROM RECORD ON MERITS OF THE CASE. SECONDLY, THE ARGUMENT OF THE ASSESSEE THAT ONCE THE QUANTUM OF GIFT DID NOT EXCEED RS.25,000/- AND THE DONORS ARE RELATIVES THEN NONE OF THE GIFTS CAN BE TREATED AS INCOME IN TERMS OF SECTION 56(2)(V) OF THE ACT. AC CORDING TO LD. COUNSEL IT DID NOT NECESSITATE ANY OTHER EVIDENCE TO BE RECORDED AND HENCE, THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. WE HAVE GONE THROUGH THE PR OVISIONS OF SECTION 56(2)(V) READ WITH SECTION 68 OF THE ACT. WE FIND THAT SECTION 56(2)( V) CLEARLY DEBAR THE AO FROM MAKING ADDITION OF GIFTS RECEIPTS IN CASE OF RELATIVES UP TO RS.25, 000/- FROM RELATIVES FOR MAKING ADDITION BUT IN CASE THE SOURCE IS EXPLAINED. IN CASE SOURCE IS NO T EXPLAINED THE PROVISIONS OF SECTION 68 OF THE ACT WILL APPLY. THE ASSESSEE HAS TO SATISFY THE CO NDITIONS OF SECTION 68 OF THE ACT I.E. THE SOURCE OF GIFT, THE GENUINENESS OF TRANSACTION AND IDENTITY OF THE PARTY. IN THIS CASE, ADMITTEDLY, GIFTS ARE UP TO RS.25,000/- FROM THESE FOUR PERSONS IN EACH OF THE CASE AND THEY ARE ADMITTEDLY RELATIVES. BUT THE TRIBUNAL HAS DECIDED THE ISSUE AS THE CONDITIONS SPECIFIED IN SECTION 68 OF THE ACT ARE NOT SATISFIED. EVEN OTHERWISE, THE ISSUE I S HIGHLY DEBATABLE AND CANNOT BE CONSIDERED WHILE ADJUDICATING RECTIFICATION U/S. 254(2) OF THE ACT. MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. 3. IN THE RESULT, THE ASSESSEES MISC. PETITION STA NDS DISMISSED. 4. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08.06.2 012 SD/- SD/- , ' !' ' !' ' !' ' !' , (PRAMOD KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 0 0 0 0) )) ) DATED : 8TH JUNE, 2012 12 $34 5 JD.(SR.P.S.) / - # 6#'7- COPY OF THE ORDER FORWARDED TO: 1 . /APPLICANT SM. PUSHPA C. VARMA, 135, CANNING STR EET, KOLKATA-700 001. 2 *+, / RESPONDENT DCIT, CIRCLE-35, KOLKATA. . 3 . /$ ( )/ THE CIT(A) , KOLKATA 4. CIT, KOLKATA 5 . >? $ / DR, KOLKATA BENCHES, KOLKATA *# / TRUE COPY, /$/ BY ORDER, ' !4 /ASSTT. REGISTRAR .