Ashok Kumar Agarwala, Hooghly v. ITO, Ward - 1, Malda, Malda

ITA 1/KOL/2012 | 2005-2006
Pronouncement Date: 12-11-2014 | Result: Allowed

Appeal Details

RSA Number 123514 RSA 2012
Assessee PAN ACQPA3428C
Bench Kolkata
Appeal Number ITA 1/KOL/2012
Duration Of Justice 2 year(s) 10 month(s) 9 day(s)
Appellant Ashok Kumar Agarwala, Hooghly
Respondent ITO, Ward - 1, Malda, Malda
Appeal Type Income Tax Appeal
Pronouncement Date 12-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 12-11-2014
Assessment Year 2005-2006
Appeal Filed On 02-01-2012
Judgment Text
I.T.A. NO. 01/KOL./2012 ASSESSMENT YEAR: 2005-2006 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 01/KOL./ 2012 ASSESSMENT YEAR : 2005-2006 ASHOK KUMAR AGARWALA .............................. ...............APPELLANT C/O. ADVOCATE SOMNATH GHOSH SEVEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DISTRICT- HOOGHLY-712 105 [PAN : ACQPA 3428 C] -VS.- INCOME TAX OFFICER ................................ . ..................RESPONDENT WARD-1 MALDA INCOME TAX OFFICE FIRST FLOOR NETAJI COMMERCIAL MARKET P.O. + P.S. : MALDA DISTRICT-MALDA-732 101 APPEARANCES BY: SHRI SOMNATH GHOSH ADVOCATE FOR THE ASSESSEE SHRI VIVEK KUMAR GUPTA JCIT SR. D.R. FOR THE DEP ARTMENT DATE OF CONCLUDING THE HEARING : NOVEMBER 10 201 4 DATE OF PRONOUNCING THE ORDER : NOVEMBER 12 2014 O R D E R PER GEORGE MATHAN: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) JALPAIGURI IN APPEAL NO. 256/MLD/CIT(A)/JAL/07-08 DATED 03.10.2011 FOR THE A SSESSMENT YEAR 2005-06. I.T.A. NO. 01/KOL./2012 ASSESSMENT YEAR: 2005-2006 PAGE 2 OF 5 2. SHRI SOMNATH GHOSH ADVOCATE REPRESENTED ON BEH ALF OF THE ASSESSEE AND SHRI VIVEK KUMAR GUPTA JCIT SR. D.R. REPRESENTED ON BEHALF OF THE REVENUE. 3. AT THE TIME OF HEARING IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSESSEE IS AN INDIVIDUAL WHO IS IN THE BUSINESS O F TRADING IN SALT. IT WAS THE SUBMISSION THAT IN THE COURSE OF ASSESSMENT IT WAS NOTICED THAT THE ASSESSEE HAD RECEIVED GIFTS OF RS.5 00 000/- FROM S IX DONORS. IT WAS THE SUBMISSION THAT THE GIFTS HAD BEEN RECEIVED BY THE ASSESSEE FROM SIX DONORS THROUGH ACCOUNT PAYEE DEMAND DRAFTS. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAD DISBELIEVED THE CLAIM OF RECEIPT OF GIFTS ON THE GROUND THAT THE DONORS DID NOT HAVE SURPLUS MONEY T O GIVE THE GIFT. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD PROVIDED THE D ETAILS OF PAN AND THE NAMES AND ADDRESSES TO THE ASSESSING OFFICER AND TH E ASSESSING OFFICER HAD ALSO OBTAINED THE RETURN COPIES AND THE BANK ST ATEMENTS OF THE DONORS. IT WAS THE SUBMISSION THAT AFTER EXAMINING THE BALANCE-SHEETS OF THE DONORS AND THE RETURNS AS ALSO THE BANK ACCOUNT S THE ASSESSING OFFICER HAD DRAWN THE CONCLUSION THAT THE DONORS DI D NOT HAVE SURPLUS MONEY TO GIVE THE GIFTS TO THE ASSESSEE AND CONSEQU ENTLY HAD HELD THAT THE CREDITWORTHINESS OF THE DONORS HAD NOT BEEN ESTABLI SHED. IT WAS THE SUBMISSION THAT ON APPEAL LD. CIT(APPEALS) UPHELD T HE ORDER OF THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT ALL T HE DONORS WERE FRIENDS OF THE ASSESSEE AND ONE OF THE DONORS WERE RELATIVE TO THE ASSESSEE. IT WAS THE SUBMISSION THAT ALL THE DETAILS OF THE DONORS H AVE BEEN PRODUCED BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFI CER HAD ALSO EXAMINED AND ACCEPTED THE IDENTITY AND GENUINENESS OF THE TR ANSACTIONS IN SO FAR AS THE GENUINENESS ITSELF HAS NOT BEEN DOUBTED BY THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT NOWHERE IN THE ASSESSMENT O RDER THE ASSESSING OFFICER HAS QUESTIONED THE GENUINENESS OF THE GIFTS . IT WAS THE SUBMISSION THAT THE CREDITWORTHINESS OF THE DONORS HAS BEEN DO UBTED. IT WAS THE SUBMISSION THAT THE ASSESSEE HAVING PROVIDED ALL TH E DETAILS AND NO ADVERSE EVIDENCE HAVING BEEN FOUND AGAINST THE ASSE SSEE THE ADDITION AS I.T.A. NO. 01/KOL./2012 ASSESSMENT YEAR: 2005-2006 PAGE 3 OF 5 MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) WAS LIABLE TO BE DELETED. HE PLACED RELIANCE UPON THE D ECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DATAWARE P RIVATE LIMITED IN ITAT NO. 263 OF 2011 IN G.A. NO. 2856 OF 2011 DATED 21 ST SEPTEMBER 2011 WHEREIN THE HONBLE JURISDICTIONAL HIGH COURT HAS H ELD AS FOLLOWS:- IN OUR OPINION IN SUCH CIRCUMSTANCES THE ASSESSI NG OFFICER OF THE ASSESSEE CANNOT TAKE THE BURDEN OF A SSESSING THE PROFIT AND LOSS ACCOUNT OF THE CREDITOR WHEN AD MITTEDLY THE CREDITOR HIMSELF IS AN INCOME TAX ASSESSEE. AFT ER GETTING THE PAN NUMBER AND GETTING THE INFORMATION THAT THE CREDITOR IS ASSESSED UNDER THE ACT THE ASSESSING O FFICER SHOULD ENQUIRE FROM THE ASSESSING OFFICER OF THE CR EDITOR AS TO THE GENUINENESS OF THE TRANSACTION AND WHETHER S UCH TRANSACTION HAS BEEN ACCEPTED BY THE ASSESSING OFFI CER OF THE CREDITOR BUT INSTEAD OF ADOPTING SUCH COURSE T HE ASSESSING OFFICER HIMSELF COULD NOT ENTER INTO THE RETURN OF THE CREDITOR AND BRAND THE SAME AS UNWORTHY OF CRED ENCE. SO LONG IT IS NOT ESTABLISHED THAT THE RETURN SUBMITTED BY THE CREDITOR HAS BEEN REJECTED BY ITS ASSESSING OFFICER THE ASSESSING OFFICER OF THE ASSESSEE IS B OUND TO ACCEPT THE SAME AS GENUINE WHEN THE IDENTITY OF THE CREDITOR AND THE GENUINENESS OF TRANSACTION THROUGH ACCOUNT PAYEE HAS BEEN ESTABLISHED. WE FIND THAT BOTH THE COMMISSIONER OF INCOME TAX (APPEALS) AND THE TRIBUNAL BELOW FOLLOWED THE WELL- ACCEPTED PRINCIPLE WHICH ARE REQUIRED TO BE FOLLOW ED IN CONSIDERING THE EFFECT OF SECTION 68 OF THE ACT AND WE THUS FIND NO REASON TO INTERFERE WITH THE CONCURRENT FIN DINGS OF FACT RECORDED BY BOTH THE AUTHORITIES. 4. IN REPLY LD. SR. D.R. SUBMITTED THAT THE CREDIT WORTHINESS OF THE DONORS HAS NOT BEEN ESTABLISHED BEYOND DOUBT. IT WA S THE SUBMISSION THAT THE ORDER OF THE LD. CIT(APPEALS) WAS LIABLE TO BE UPHELD. LD. SR. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER AND LD. CIT(APPEALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE DETAILS OF THE DONORS WERE AVAILABLE BEFORE HIM. THE FACT THAT THE ASSESSING O FFICER HAS TAKEN INTO I.T.A. NO. 01/KOL./2012 ASSESSMENT YEAR: 2005-2006 PAGE 4 OF 5 CONSIDERATION THE BALANCE-SHEETS OF THE DONORS SHOW S THAT ALL THE DETAILS HAVE BEEN PRODUCED BEFORE HIM. IN FACT IN PAGE 3 O F THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS EXAMINED THE BANK ACCOUNT S OF THE DONORS AND HAVE ALSO OBTAINED DETAILS FROM ABN AMRO BANK FROM WHERE THE DRAFTS HAVE BEEN OBTAINED. HAVING EXAMINED THE SAME IT HA S BEEN FOUND THAT THE DRAFTS HAVE BEEN OBTAINED FROM THE SPECIFIED BANK A CCOUNTS OF THE DONORS. HOWEVER THE ISSUE SEEMS TO BE THAT CASH DE POSITED IN THE BANK ACCOUNTS OF THE DONORS BEFORE THE DRAFTS WERE TAKEN . THIS ALONE WOULD NOT BE GROUND ENOUGH TO DISBELIEVE THE CLAIM OF GIFTS R ECEIVED BY THE ASSESSEE. THE TRANSACTIONS IN THE BANK OF THE DONOR S ARE ISSUES WHICH THE DONORS WOULD HAVE TO EXPLAIN. THE ASSESSEE HAVING P ROVIDED THE DETAILS IN THE COURSE OF ASSESSMENT TO THE ASSESSING OFFICER A ND NO ADVERSE EVIDENCE HAVING BEEN FOUND AGAINST THE ASSESSEE IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF DATAWARE PRIVATE LIMITED REFERRED TO SUPRA WE ARE OF THE VIEW THAT THE ADDITION AS MADE BY THE ASSESSING OFFICER AND AS CONFIRMED BY THE LD. C IT(APPEALS) IS UNSUSTAINABLE. IN THESE CIRCUMSTANCES WE DELETE TH E ADDITION. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH NOVEMBER 2014. SD/- SD/- SHAMIM YAHYA GEORGE MATHAN (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA THE 12 TH DAY OF NOVEMBER 2014 I.T.A. NO. 01/KOL./2012 ASSESSMENT YEAR: 2005-2006 PAGE 5 OF 5 COPIES TO : (1) ASHOK KUMAR AGARWALA C/O. ADVOCATE SOMNATH GHOSH SEVEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DISTRICT- HOOGHLY-712 105 (2) INCOME TAX OFFICER WARD-1 MALDA INCOME TAX OFFICE FIRST FLOOR NETAJI COMMERCIAL MARKET P.O. + P.S. : MALDA DISTRICT-MALDA-732 101 (3) COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES KOLKATA LAHA/SR. P.S.