Basanti Devi Nahata, Kolkata v. ITO, Ward - 29(4), Kolkata, Kolkata

ITA 2144/KOL/2009 | 2002-2003
Pronouncement Date: 13-04-2010

Appeal Details

RSA Number 214423514 RSA 2009
Assessee PAN ABRPN6486H
Bench Kolkata
Appeal Number ITA 2144/KOL/2009
Duration Of Justice 3 month(s) 23 day(s)
Appellant Basanti Devi Nahata, Kolkata
Respondent ITO, Ward - 29(4), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 13-04-2010
Appeal Filed By Assessee
Bench Allotted C
Tribunal Order Date 13-04-2010
Date Of Final Hearing 08-04-2010
Next Hearing Date 08-04-2010
Assessment Year 2002-2003
Appeal Filed On 21-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI B . C. MEENA AM] I.T.A. NO. 2144/KOL/2009 ASSESSMENT YEAR :2002-03 BASANTI DEVI NAHATA -VS- INCOME-TAX OFFICER WD -29(4) KOLKATA (PA NO.ABRPN 6486 H) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI P. JAIN RESPONDENT BY : MRS. JYOTI KUMARI O R D E R PER D. K. TYAGI JM : THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A) KOLKATA DATED 09.11.2009 FOR ASSESSMENT YEA R 2002-03 IN CONFIRMING THE ADDITION RS. 3 LAKHS ON ACCOUNT OF GIFTS OF RS.2 00 000/- RECEIVED FROM SMT. SUSHILA DEVI BHANSALI AND SRI CHHAGANMAL BHANSALI RS. 1 LAC EACH AND A LOAN OF RS.1 00 000/- FROM SMT. SUSHILA DEVI BHANSALI AND ALSO CONSEQUENT DISALLOWANCE OF INTEREST AMOUNTING TO RS.2 959/-. 2. FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS OBSERVED BY THE A.O. THAT THE ASSESSEE HAS CLAIMED THE RECEIPT OF GIFTS AMOUNTING TO RS.2 LACS. THE GIFTS OF RS.1 LAC EACH WERE CLAIMED TO BE RECEIVED FROM SUSHILA DEVI BHANSALI AND SHRI CHHAGANMAL BHANSALI. BESIDES THE ASSESSEE HAS ALSO CLAIMED RECEIPT OF RS. 1 LAC AS UNSECURED LOAN FROM SUSHILA DEVI BH ANSALI. IN ORDER TO VERIFY THE GENUINENESS OF GIFT AND LOAN TRANSACTION THE A.O. HAS ISSUED NOTICE U/S. 133(6) OF THE I. T. ACT TO THE DONORS/LOAN CREDITOR TO CALL FOR CERT AIN DETAILS. LATER ON SUMMONS U/S.131 OF THE I. T. ACT WERE ISSUED TO BOTH THE PERSONS. I N RESPONSE TO THE NOTICE U/S. 131 AN A/R APPEARED ON BEHALF OF BOTH THE DONORS AND IT WA S STATED BY HIM THAT DONORS HAVE GONE TO RAJASTHAN AND WOULD RETURN AFTER MARCH 200 5. IN THE CASE OF SHRI CHHAGANMAL BHANSALI IT WAS OBSERVED BY THE A.O. THAT DURING TH E A.Y. 2001-02 HIS INCOME WAS RS.48 588/- AND HIS SOURCE OF INCOME WAS FROM COMMI SSION. THE TOTAL DRAWINGS OF SHRI CHHAGANMAL DURING A.Y. 2001-02 WERE RS.15 000/- ONL Y. FURTHER IT WAS OBSERVED BY THE A.O. THAT THE INCOME OF THE DONOR DURING A.Y. 2 002-03 WAS RS.47 574/- WHICH WAS CLAIMED TO HAVE BEEN EARNED THROUGH SHARE SPECULATI ON PROFIT. THE PERSONAL DRAWINGS DURING THAT YEAR WERE ONLY OF RS.18 000/-. ON PERUS AL OF BANK ACCOUNT OF SHRI 2 CHHAGANMAL BHANSALI IT WAS OBSERVED BY THE A.O. TH AT THE SUBSTANTIAL AMOUNT OF CASH WAS DEPOSITED ON DIFFERENT DATES AND ON THE VERY NE XT DAY OF SUCH CASH DEPOSIT THE CHEQUES OR DEMAND DRAFT OF EQUIVALENT AMOUNT WERE I SSUED AS GIFTS. THE DONOR HAS GIVEN A TOTAL GIFT OF RS.3 51 000/- DURING F.Y. 2001-02 O UT OF HIS OPENING CAPITAL OF RS.4 18 916/-. SIMILARLY IN THE CASE OF SMT. SUSHI LA DEVI BHANSALI THE NET PROFIT SHOWN DURING A.Y. 2001-02 WAS RS.24 965/-. THE SOURCE OF INCOME WAS DECLARED AS SHARE PROFIT. THE DRAWINGS DURING A.Y. 2001-02 WAS SHOWN AT RS.31 200/-. THE NET PROFIT DURING A.Y. 2002-03 WAS DECLARED AT RS.47 372/- OUT OF WHICH INCOME OF RS.38 947/- WAS CLAIMED TO HAVE BEEN EARNED FROM SHARE SPECULAT ION. DURING A.Y. 2002-03 THE WITHDRAWAL SHOWN WERE RS.15 000/- ONLY. FROM THE BA NK ACCOUNT OF SMT. SUSHILA DEVI IT WAS OBSERVED BY THE A.O. THAT THE CASH WAS DEPOS ITED IN THE BANK ACCOUNT JUST PRIOR TO GIVING GIFTS OR LOAN TO THE PERSON. ON THE BASIS OF ABOVE IT WAS CONCLUDED BY THE A.O. THAT EVEN THOUGH THE DONORS WERE NOT HAVING ANY REL ATION WITH THE ASSESSEE STILL THEY HAD GIVEN GIFTS OF RS.2 00 000/- TO THE ASSESSEE. FROM THE RETURN OF INCOME OF BOTH THE PERSONS IT WAS APPARENT THAT THEY HAD DECLARED MEAG ER AMOUNT OF INCOME AND HAS SHOWN VERY LESS AMOUNT OF WITHDRAWAL FOR THEIR OWN EXPENS ES. THE CAPITAL OF BOTH THE PERSONS WAS VERY SMALL AND THEY HAD GIVEN SUBSTANTIAL AMOUN T OF GIFTS NOT ONLY TO THE ASSESSEE BUT TO OTHER PERSONS ALSO. BESIDES DURING THE COUR SE OF ASSESSMENT PROCEEDINGS THEY COULD NOT PRODUCE ANY EVIDENCE REGARDING THE SOURCE S OF INCOME ON ACCOUNT OF COMMISSION AND SHARE SPECULATION PROFIT AS DECLARED BY THEM IN THE RETURN OF INCOME. FURTHER JUST PRIOR TO THE GIVING GIFTS AND LOAN E QUIVALENT AMOUNT WAS DEPOSITED IN THE BANK ACCOUNT IN CASH. AFTER DISCUSSING IN LENGTH TH E FACTS IT WAS HELD BY THE A.O. THAT THE DONORS WERE NOT HAVING CREDITWORTHINESS TO GIVE GIFTS OF RS.2 00 000/- AND LOAN OF RS.1 00 000/- TO THE ASSESSEE AND THAT THE GIFT AND LOAN TRANSACTIONS WERE NOT GENUINE. HE MADE ADDITION OF RS.3 00 000/- U/S. 68 OF THE I. T. ACT AND ALSO DISALLOWED CLAIM OF INTEREST PAYMENT ON ALLEGED LOAN FROM SUSHILA DEVI BHANSALI. IN APPEAL THE LD. CIT(A) CONFIRMED THIS ACTION OF THE AO. BEING FURTHER AGG RIEVED NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE WHILE REITERATING HIS SAME SUBMISSIONS AS SUBMITTED BEFOR E THE LOWER AUTHORITIES FURTHER SUBMITTED IN RESPECT OF GIFT OF RS.2 LACS RECEIVED FROM TWO PERSONS THAT BOTH THE DONORS OF THE SAID GIFT HAVE CONFIRMED ALONG WITH SUPPORTI NG EVIDENCES HAVING MADE THE GIFT 3 ALONG WITH THE COPY OF THEIR RESPECTIVE I. T. RETUR NS BALANCE SHEETS BANK ACCOUNTS AND DEED OF GIFTS. THEREFORE THE GENUINENESS IDENTIT Y AND CREDITWORTHINESS OF THE DONORS HAVE BEEN ESTABLISHED. HE ALSO SUBMITTED THAT THE LD. CIT(A) SHOULD HAVE APPRECIATED THAT THE ASSESSEE DISCHARGED HER ONUS OF PROVING TH E GIFTS AS WELL AS LOAN AGGREGATING TO RS.3 00 000/- BY IDENTIFYING THE DONORS/CREDITOR SU PPORTED BY THEIR CONFIRMATION BANK ACCOUNTS. P. A. NOS AND PRODUCING THEIR BALANCE SHE ETS EVIDENCE OF FILING RETURNS ETC WHICH ARE MORE THAN ADEQUATE TO PROVE THE IDENTITY GENUINENESS AND CREDITWORTHINESS OF THE PARTIES. HE ALSO SUBMITTED THAT IN RESPECT OF LOAN OF RS.1 00 000/- FROM SMT. SUSHILA DEVI BHANSALI ON WHICH AN INTEREST OF RS.2 959/- WA S PAID BY THE ASSESSEE TO HER. THE AO ADDED THE SAME AS UNEXPLAINED CASH CREDIT ALTHO UGH THE LOAN HAS BEEN DULY AND PROPERLY EVIDENCED BY BOOKS/RECORDS OF BOTH THE LEN DER AND BORROWER OF THE LOAN AS IS CLEAR FROM THE RECORDS FILED BY BOTH OF THEM WITH T HEIR RESPECTIVE ITOS. THE ACTIONS OF THE AO AND THE LD. CIT(A) ARE TOTALLY ARBITRARY AND UNWARRANTED. THE LOAN CREDITOR HAS GIVEN HIS OWN FUNDS ON INTEREST BEARING LOAN. THE TRANSACTIONS HAVE DULY BEEN REFLECTED IN THE RETURN OF INCOME AND HAD ALSO BEEN ADMITTED /CONFIRMED BY THE LOAN CREDITOR. HENCE HE URGED BEFORE THE BENCH THE ENTIRE ADDITIO N MAY PLEASE BE DELETED. 4. LD. DR ON THE OTHER HAND RELIED ON THE ORDERS OF THE LOWER AUTHORITIES AND PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS- P. MOHANAKALA (2007) 291 ITR 278 (SC) AND IN THE CASE OF SAJAN DASS & SONS VS- CIT 264 ITR 435 (DEL) IN RESPECT OF GIFT AND IN RESPECT OF LOAN SHE PLACED RELIANCE ON THE FOLLOWING DECISIONS : I) CIT VS- PRECISION FINANCE PVT. LTD. (1994) 208 ITR 465 (CAL) II) CIT VS- UNITED COMMERCIAL & INDUSTRIAL CO. (P) LTD.(1991) 187 ITR 596 (CAL) SHE LASTLY URGED BEFORE THE BENCH TO CONFIRM THE AC TION OF THE LD. CIT(A) 5. AFTER HEARING BOTH THE PARTIES PERUSING THE MAT ERIAL AVAILABLE ON RECORDS AND THE CASE LAWS CITED BY THE LD. DR WE FIND THAT WHILE C ONFIRMING THE ADDITIONS THE LD. CIT(A) HAS GIVEN A VERY ELABORATE ORDER AND FOR THE SAKE OF BREVITY WE REPRODUCE THE RELEVANT PORTION OF HIS ORDER AS UNDER : I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT AND PERUSED THE ASSESSMENT ORDER. DURING THE RELEVANT PREVIOUS YEAR THE APPELLANT HAS CLAIMED RECEIPT OF GIFTS AMOUNTING OF RS.2 00 000/- FROM TWO PERSONS NAMELY SMT. SUSHI LA DEVI BHANSALI AND SHRI CHHAGANMAL BHANSALI AMOUNTING TO RS.1 00 000/- EACH . BESIDES THE APPELLANT HAS ALSO CLAIMED RECEIPT OF UNSECURED LOAN AMOUNTING TO RS. 1 00 000/- FROM SMT. SUSHILA DEVI 4 BHANSALI. DURING THE COURSE OF ASSESSMENT PROCEED INGS AS MENTIONED ABOVE THE AO HAS EXAMINED THE RETURN OF INCOME FILED BY THE ALLE GED DONORS/LOAN CREDITOR AS WELL AS THEIR BANK ACCOUNTS. IT WAS OBSERVED BY THE AO THA T BOTH OF THESE PERSONS WERE HAVING MEAGER AMOUNT OF INCOME WHICH WERE CLAIMED TO BE EA RNED EITHER FROM COMMISSION OR SHARE SPECULATION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS NONE OF THE DONOR APPEARED BEFORE THE A.O. IN RESPONSE TO THE NOTICE U/S. 131 OF THE ACT FOR THE REASON THAT THEY HAD GONE TO RAJASTHAN. ONE OF THE AUTHORISED R EPRESENTATIVE OF THE DONORS APPEARED BEFORE THE A.O. AND WHEN HE WAS ASKED TO P RODUCE THE NAME AND ADDRESSES OF THE PARTIES FROM WHOM COMMISSION WAS RECEIVED BY ON E OF THE DONOR AND ALSO TO PRODUCE THE COPIES OF CONTRACT NOTES TO SUBSTANTIAT E THE CLAIM OF RECEIPT OF SHARE SPECULATION PROFIT THE AIR HAS FAILED TO PRODUCE A NY EVIDENCE. IT WAS FURTHER OBSERVED BY THE A.O. THAT THESE TWO PERSONS HAD NOT ONLY GIV EN THE GIFTS TO THE APPELLANT BUT ALSO TO OTHER PERSONS. AS PER BALANCE SHEET BOTH OF THEM WERE HAVING VERY SMALL AMOUNT OF CAPITAL AS WELL AS INCOME STILL THE APPELLANT HAS CLAIMED THAT SUBSTANTIAL AMOUNT OF GIFT WERE RECEIVED BY HER FROM THESE PERSONS. THE GENUIN ENESS OF THE TRANSACTIONS IS VERY MUCH IN DOUBT CONSIDERING THE FINANCIAL STATUS OF B OTH THE DONORS AND KEEPING IN VIEW THAT APPELLANT WAS NOT HAVING ANY SORT OF RELATION WITH THESE PERSONS. THE GENUINENESS OF THE TRANSACTION IS FURTHER DOUBTFUL FOR THE REAS ON THAT JUST PRIOR TO ISSUING OF CHEQUE OR D/D FOR GIVING GIFTS OR PROVIDING LOAN THE DONO RS HAVE DEPOSITED CASH OF EQUIVALENT AMOUNT. IT IS NOT KNOWN THAT FROM WHERE SUBSTANTIAL AMOUNT OF CASH WAS RECEIVED BY THESE PERSONS BECAUSE AS PER THE BALANCE SHEET THEY WERE NEITHER HAVING CASH IN HAND NOR HAVING ANY RECEIPTS BY WHICH THE CASH DEPOSITED IN THE BANKS COULD BE EXPLAINED. IF THE ALLEGED DONORS/LOAN CREDITOR WERE HAVING SO MUC H OF AMOUNT THAT THE GIFTS OF LAKHS OF RUPEES COULD BE GIVEN TO THE UNKNOWN PERSONS SU CH DONOR WOULD LIKE TO SPEND OR INVEST SUCH AMOUNT ON HIS OR HER OWN AND NOT TO DEP LETE THE CAPITAL BY GIVING GIFTS. THE ALLEGED DONORS HAS DONE THIS ONLY FOR THE REASON TH AT THE CASH DEPOSITED ON THE BANK ACCOUNT AND GIVEN EQUIVALENT AMOUNT AS GIFT OR LOAN WAS NOT THEIR OWN MONEY. IT IS NOT SUFFICIENT THAT THE ALLEGED DONORS/LOAN CREDITOR HA D CONFIRMED THE GIFTS AND LOAN AND THEY WERE REFLECTED IN THEIR BALANCE SHEET. THE APP ELLANT HAS FAILED TO PROVE THE CREDITWORTHINESS OF DONORS/CREDITOR AS WELL AS THE GENUINENESS OF THE TRANSACTIONS. IN VIEW OF ABOVE I AM OF THE OPINION THAT THE AO WAS JUSTIFIED IN MAKING THE ADDITION OF RS.3 00 000/- I.E. RS.2 00 000/- ON ACCOUNT OF GIFT S AND RS.1 00 000/- ON ACCOUNT OF ALLEGED LOAN. THE AO WAS ALSO JUSTIFIED IN MAKING THE DISALLOWANCE OF CLAIM OF PAYMENT OF INTEREST AMOUNTING TO RS.2 959/- ON THE AFORESAI D LOAN. THE ADDITIONS MADE BY THE AO ARE CONFIRMED. THE GROUND NO. 3 IS DISMISSED. WE ALSO FIND THAT THE CASE LAWS CITED BY THE LD. DR ARE ALSO ALIKE IN NATURE AS IN THE PRESENT CASE. IN VIEW OF THE ABOVE AND FINDING NO CONTRARY MATERIAL BROUGHT ON RECORD BY THE LD. COUNSEL FOR THE ASSESSEE TO CONTROVERT T HE ABOVE FINDING OF THE LD. CIT(A) WE DO NOT FIND ANY INFIRMITY IN HIS ORDER AND THE S AME IS HEREBY UPHELD. THEREFORE THE APPEAL OF THE ASSESSEE IS DISMISSED. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13.4.20 10 SD/- SD/- (B. C. MEENA) ( D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13TH APRIL 2010 5 COPY FORWARDED TO THE :- 1) SMT. BASANTI DEVI NAHATA 6 HASTINGS PARK ROAD ALIPORE KOLKATA-27 2) ITO WARD-29(4) KOLKATA. 3) CIT(A) KOLKATA 4) CIT KOLKATA. 5) D. R. ITAT KOLKATA. (TRUE COPY) BY ORDER DEPUTY REGISTRAR JD. (SR. P.S.) I.T.A.T. KOLKATA