ITO, Ward - 38(4), Kolkata, Kolkata v. Sneha Goyal, Kolkata

ITA 1367/KOL/2010 | 2006-2007
Pronouncement Date: 11-03-2011

Appeal Details

RSA Number 136723514 RSA 2010
Assessee PAN ACZPG5958N
Bench Kolkata
Appeal Number ITA 1367/KOL/2010
Duration Of Justice 8 month(s) 10 day(s)
Appellant ITO, Ward - 38(4), Kolkata, Kolkata
Respondent Sneha Goyal, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 11-03-2011
Appeal Filed By Department
Bench Allotted A
Tribunal Order Date 11-03-2011
Date Of Final Hearing 03-03-2011
Next Hearing Date 03-03-2011
Assessment Year 2006-2007
Appeal Filed On 01-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA () BEFORE . . SHRI B.R MITTAL JUDICIAL MEMBER. . ! /AND .'.# '$ SHRI B.K.HALDAR ACCOUNTANT MEMBER !% / I.T.A.NO. 1367/KOL/2010 &' ()/ ASSESSMENT YEAR : 2006-07 INCOME-TAX OFFICER WARD 38(4) KOLKATA - & - - VERSUS - . SNEHA GOYAL PAN: ACZPG5958N ( - / APPELLANT ) (./ -/ RESPONDENT) - 0 1 '/ FOR THE APPELLANT: / SHRI PIYUSH KOLHE LD.DR ./ - 0 1 '/ FOR THE RESPONDENT: / SHRI VIKASH SINGHAL LD.AR '2 /ORDER .'.# '$ SHRI B.K.HALDAR ACCOUNTANT MEMBER. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) XXIV KOLKATA DATED 29.03.2010 FOR THE ASSESSMENT YEAR 2006-07. 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEA L:- 1. THE LD.CIT[A] HAS ERRED IN LAW AS WELL AS IN F ACT IN DELETING THE ADDITION OF RS.34 33 180/- MADE ON ACCOUNT OF UNEXP LAINED CASH CREDIT U/S.68. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER M ODIFY INCLUDE OR DELETE THE OTHER GROUNDS OF APPEAL. 3. DURING THE RELEVANT PREVIOUS YEAR THE ASSESSEE C REDITED AN AMOUNT OF RS.34 33 189/- IN HER CAPITAL ACCOUNT OF THE PROPRIETORSHIP FIRM M/S. SHREE TEXTILES TOWARDS MATURITY AMOUNT OF INDIA MILLENNIUM DEPOSITS AS GIFT RECEIV ED DURING THE FY 2001-02. BEFORE THE AO THE ASSESSEE FURNISHED THE COPY OF DECLARATION O F GIFT COPY OF LETTER FOR TRANSFER OF SAID INDIA MILLENNIUM DEPOSITS WITH STATE BANK OF INDIA DATED 27-11-2001 COPY OF PASSPORT FOR ITA NO. 1367/KOL/2010-BKH 2 IDENTITY PROOF OF THE DONOR. HOWEVER THE AO REQUIR ED THE PERSONAL ATTENDANCE OF THE ASSESSEE REPEATEDLY THE SAME WAS NOT COMPLIED WITH . IN THE FACTS AND AS THE DONOR WAS NOT RELATED TO THE ASSESSEE THE AO HELD THE GIFT TO BE FICTITIOUS AND ADDED THE IMPUGNED AMOUNT OF RS.34 33 189/- AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. 4. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE L D.CIT(A). 5. BEFORE THE LD.CIT(A) THE ASSESSEE FURNISHED EVID ENCE IN SUPPORT OF HER CLAIM THAT THE SAID INDIA MILLENNIUM DEPOSITS WAS GIFTED TO THE AS SESSEE DURING THE FY 2001-02 AND THE SAME WAS REGISTERED WITH SBI NRI BRANCH MUMBAI TO GETHER WITH OTHER RELEVANT EVIDENCE. AS THE ASSESSEE DID NOT APPEAR BEFORE THE AO THE LD.CIT(A) DIRECTED THE ASSESSEE TO APPEAR BEFORE THE AO AND A REPORT WAS CALLED FOR B Y HIM FROM THE AO ON THE ISSUE INVOLVED. THE AO VIDE HIS REMAND REPORT DATED 25-0 3-2010 SUBMITTED AS UNDER:- AS REITERATED THE ONLY ISSUE INVOLVED IN THIS CASE IS GIFT OF RS.34 33 189 U/S 68 OF THE I.T.ACT61. THE ASSESSEE SMT SNEHA GOYAL WAS SUMMONED TO APPEAR BEFORE ME ON 28/02/2010. THE ASS ESSEE APPEARED IN RESPONSE TO THE SUMMONS. A STATEMENT OF THE ASSESSE E WAS DILLY RECORDED. THE ASSESSEE STATED THAT SHE HAD RECEIVED THE GIFT ON A ND AROUND NOV 2001 OF INDIAN MILLENNIUM DEPOSITS WORTH US DOLLARS 50 000 FROM SRI ANAND SURARANA OF DUBAI. THE SAID BONDS WERE TRANSFERRED AND REDEEMED IN A. Y.2006-07 BY S.B.I NRI BRANCH MUMBAI FOR RS.34 LA KHS. IN SUPPORT OF EVIDENCES THE ASSESSEE SUBMITTED COPIES OF (A) IMDS BONDS (B) COPY OF LETTER DATED 27.11.2002 ISSUED TO S.B.I. NRI BRANCH MUMBA I FOR THE REQUEST OF RECORDING THE GIFT(C) COPY OF LETTER DATED 03/12/20 01 RECEIVED FROM SRI. ENDORSING TRANSFER OF THE IMDS BONDS (D) COPY OF DE CLARATION OF GIFT OBTAINED FROM SRI ANANDA SURANA REGARDING THE RELATIONSHIP WITH THE FATHER OF THE D ONOR THE ASSESSEE STATED THAT HER LATE FATHER HAD HELPED SRT ANAND SU RANA IN TIMES OF FINANCIAL DISTRESS AND ALSO HELPED HIM TO GO TO DUBAI TO SETT LE DOWN. ACCORDING TO HER TO THE ASSESSEE. THE ASSESSEE STATED THAT ALTHOUGH SRI ANAND SURANA IS CARRYING ON TRADING ACTIVITIES AT DUBAI HE IS NOT ASSESSED TO T AX UNDER TAXATION LAWS OF DUBAI AS ENQUIRED FROM HIM .AS ALREADY STATED BY TH E ASSESSEE THAT THE APPLICATION OF GIFT WAS MADE BY THE DONOR ON 27.11. 2001 SUPPORTED BY COPY OF GIFT DECLARATION. IT WAS ALSO COUNTERSIGNED BY THE ASSESSEE TO THE SRI NRI BRANCH FOR RECORDING THE GIFT THE TRANSFER WAS FINA LLY COMPLETED ON 03/ 2 2/2001. AS REGARDS THE SUCCESSIVE HOLDER OF THE CERTIFICATE THE ASSESSEE SUBMITTED THE ADDRESS OF SBI- NRI BRANCH AT MUMBAI. A LETTER WAS ISSUED TO THE BANK ON 11/03/2010. IN REPLY DATED 20/03/2010 T HE BANK FORWARDED THE COPIES OF TRANSFER LETTERS IN RESPECT OF IMD WHICH WAS TRANSFERRED FROM HABIB BANK ZURICH TO ANAND SURANA AND ALSO FROM ANAND SU RANA TO SNEHA GOEL. ITA NO. 1367/KOL/2010-BKH 3 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D.CIT(A) OPINED THAT IT WAS QUITE CLEAR THAT AMOUNT OF RS.34 33 189/- WAS RECEIVED BY THE A PPELLANT ON REDEMPTION OF INDIA MILLENNIUM DEPOSIT RECEIVED BY HER FROM SHRI ANAND SURANA IN 2001. IT WAS ALSO CLEAR THAT THE ASSESSEE AND THE DONOR WERE KNOWN TO EACH OTHER FOR A LONG PERIOD. HE THEREFORE HELD THAT THERE IS NOTHING ON RECORD TO HOLD THAT THERE WAS ABSENCE OF CLOSENESS BETWEEN THE ASSESSEE AND THE DONOR. ON THE BASIS OF THE EVIDENC E ON RECORD; IT WAS HELD BY HIM THAT IT COULD NOT BE SAID THAT THE APPELLANT FAILED TO DISC HARGE THE ONUS CAST ON HER IN ESTABLISHING THE TRANSACTION OF GIFT AND THERE IS NOTHING ON RE CORD TO SUGGEST THAT THE ABOVE AMOUNT REPRESENTED ACCOMMODATION ENTRY OF THE ASSESSEES OWN MONEY. HE THEREFORE HELD THAT THE CASE LAWS RELIED ON BY THE AO WERE NOT APPLICABLE AND DELETED THE IMPUGNED ADDITION OF RS.34 33 189/-. 7. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE TH E TRIBUNAL. 8. BEFORE US THE LD.DR IN ADDITION TO RELYING ON TH E ORDER OF THE AO SUBMITTED THAT THE DONOR WAS ONLY 32 YEARS OLD WHEN THE SO-CALLED GI FT WAS MADE TO THE ASSESSEE. IT WAS ALSO NOT KNOWN AS TO HOW HE ACCUMULATED SUFFICIENT FUND SO AS TO GIVE A GIFT OF US DOLLARS 50 000 WORTH IN INDIA MILLENNIUM DEPOSIT CERTIFICATE. IT WAS THEREFORE CONTENDED BY HIM THAT THE DONOR DID NOT HAVE THE CREDITWORTHINESS. THUS THE AO HAS RIGHTLY ADDED THE IMPUGNED AMOUNT OF RS.34 33 159/- U/S.68 OF THE ACT . RELIANCE WAS PLACED ON THE HONBLE APEX COURTS DECISION IN THE CASE OF CIT VS. P.MOHA NA KALA(SC) REPORTED IN 291 ITR 278. 9. THE LD.AR FOR THE ASSESSEE ON THE OTHER HAND I N ADDITION TO RELYING ON THE ORDER OF THE LD.CIT(A) SUBMITTED THAT THE GIFT IF ANY WAS MADE DURING THE FY 2001-02 WHICH IS QUITE EVIDENT FROM THE DOCUMENTS FURNISHED BEFORE T HE AO. IT WAS CONTENDED BY HIM THAT THE SAME COULD NOT BE REFLECTED IN THE ACCOUNT OF AY 2 001-02 BECAUSE IT WAS IN KIND. IT WAS ARGUED BY HIM THAT THE LD.CIT(A) WAS JUSTIFIED IN D ELETING THE IMPUGNED ADDITION MADE BY THE AO. RELIANCE WAS PLACED BY HIM ON THE FOLLOWING CASE LAW:- KANCHAN SINGH VS. CIT 174 TAXMAN 383(ALL) 10. WE HAVE HEARD THE PARTIES AND PERUSED THE RECOR D. WE HAVE ALSO GONE THROUGH THE CASE LAWS CITED BY BOTH THE PARTIES 10.1 THERE IS AMPLE EVIDENCE AVAILABLE ON RECORD TO SUPPORT ASSESSEES CLAIM THAT THE GIFT OF INDIA MILLENNIUM BOND WAS GIVEN TO THE ASSESSEE IN THE FY 2001-02 I.E. RELEVANT TO A.Y 2002-03. THUS IT CANNOT BE SAID THAT THE GIFT WAS RECEIVED BY THE APPELLANT DURING THE ITA NO. 1367/KOL/2010-BKH 4 PREVIOUS YEAR RELEVANT TO AY UNDER CONSIDERATION. E VEN IF THE GIFT WAS FICTITIOUS IT COULD HAVE BEEN ADDED AS INCOME OF THE ASSESSEE IN THE AY 2002-03. IT IS NOT THE CASE OF THE REVENUE THAT DURING THE PREVIOUS YEAR 2005-06 THE A SSESSEE HAS ROUTED HER UNDISCLOSED MONEY IN THE SHAPE OF THE SAID GIFT. THERE IS NO E VIDENCE ON RECORD TO SUGGEST THE SAME. THUS THE ONLY ISSUE THAT IS TO BE DECIDED BY US IS AS TO WHETHER THE AMOUNT OF RS.34 33 189/- CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE WAS UNEXPLAINED IN TERMS OF SECTION 68 OR NOT. THERE IS NO DISPUTE THAT THE SAI D AMOUNT WAS RECEIVED BY THE ASSESSEE ON REDEMPTION OF INDIA MILLENNIUM DEPOSIT. COPY OF THE CHEQUE FOR RECEIVING THE SAID AMOUNT FROM SBI. NRI BRANCH MUMBAI HAS BEEN FURNISHED BY THE ASSESSEE AVAILABLE AT PAGE 5 OF THE APB. IN THIS VIEW OF THE MATTER WE ARE OF THE CONSIDERED OPINION THAT IT CANNOT BE SAID THAT THE CREDIT OF THE SAID AMOUNT IN THE ASSESSEE S BOOKS OF A/C WAS NOT PROPERLY EXPLAINED IN TERMS OF SECTION 68 OF THE ACT. THUS WE HOLD THAT THE AMOUNT CANNOT BE ADDED U/S. 68 OF THE ACT. THE GROUNDS TAKEN BY THE REVENUE ARE THEREFOR E REJECTED. 11. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. # '2 $3' 4 3& 5 #6 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 11-0 3-2011 SD/- SD/- ( . . ) ( .'.# ) '$ (B.R MITTAL JUDICIAL MEMBER. ) (B.K.HALDAR ACCOUN TANT MEMBER) (7$) DATE :11/.03/2011 *PP / SR. PRIVATE SECRETARY : '2 0 .8 9'8(:- COPY OF THE ORDER FORWARDED TO: 1. ( - / APPELLANT ) : INCOME-TAX OFFICER W 38(4) 18 RABINDRA SARANI PODDAR COURT 8 TH FL. KOLKATA-700 001. 2. ( ./ -/ RESPONDENT) : SNEHA GOYAL PROP:M/S. SHREE TEXTILES 40 JORA PUKUR SQ LANE. KOLKATA-700006. 3. 2& ( )/ THE CIT(A) 4. 2& ( )/ THE CIT 5. ;5 .& / DR KOLKATA BENCH 5. GUARD FILE /8 ./ TRUE COPY '2&3/ BY ORDER !< /ASSTT. 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