RANI LALCHAND KALRO, MUMBAI v. ITO 16(1)(1), MUMBAI

ITA 7625/MUM/2012 | 2006-2007
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 762519914 RSA 2012
Assessee PAN AGZPK6735F
Bench Mumbai
Appeal Number ITA 7625/MUM/2012
Duration Of Justice 3 year(s) 9 month(s) 4 day(s)
Appellant RANI LALCHAND KALRO, MUMBAI
Respondent ITO 16(1)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 30-09-2016
Date Of Final Hearing 02-02-2015
Next Hearing Date 02-02-2015
Assessment Year 2006-2007
Appeal Filed On 26-12-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D MU MBAI BEFORE SHRI B.R.BASKARAN ACCOUNTANT MEMBER AN D SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 7625/MUM/2012 FOR AY - 2006-07 SMT. RANI LALCHAND KALRO 42 RAJMAL MANSION PEDDAR ROAD MUMBAI-400026 PAN: AGZPK6735F V S. ITO 16(1)(1) MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRAKASH K. JOT WANI (AR) REVENUE BY : SHRI B. S. BIST (DR ) DATE OF HEARING : 27.07.2016 DATE OF PRONOUNCEMENT : 30.09.2016 O R D E R PER PAWAN SINGH JM: 1. 1. THIS APPEAL U/S. 253 OF THE INCOME-TAX ACT (ACT) IS DIRECTED BY ASSESSEE AGAINST THE ORDER OF CIT(A)-25 MUMBAI DATED 05.11. 2012 FOR ASSESSMENT YEAR (AY) 2006-07). 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RET URN OF INCOME FOR THE RELEVANT AY ON 28.07.2006 DECLARING TOTAL INCOME AT RS. 1 24 011/-. THE CASE WAS SELECTED FOR SCRUTINY. WHILE FRAMING THE ASSESS MENT THE ASSESSING OFFICER (AO) MADE THE DISALLOWANCE OF GIFT OF RS. 11 00 000 /- AND FURTHER MADE THE ADDITION OF UNEXPLAINED CASH CREDIT U/S 68 OF RS. 5 49 500/- IN ASSESSMENT ORDER DATED 16.12.2008. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. THUS TH IS SECOND APPEAL IS FILED BEFORE US U/S. 253 OF THE ACT. 3. WE HAVE HEARD THE LD. AUTHORISED REPRESENTATIVE (AR ) OF THE ASSESSEE AND THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR RE VENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR FOR ASSESS EE ARGUED THAT THE ASSESSEE RECEIVED GIFT OF RS. 10 00 000/- FROM HIS BROTHER. ASSESSEE FURNISHED THE COPY OF 2 ITA NO. 7625/M/20142 SMT. RANI LALCHAND KALRO NRE BANK A/C IN INDIA FROM WHICH RS. 10 00 000/- WA S CREDITED THROUGH CHEQUE. THE ASSESSEE ALSO FURNISHED THE STATEMENT O F ACCOUNT OF DONORS BANK IN DUBAI TO PROVE THE CREDITWORTHINESS OF THE DONOR. T HE ASSESSEE HAS ALSO FILED A COPY OF CONFIRMATION AND CERTIFICATE OF DONOR ABOUT RUNNING OF PROPRIETARY CONCERN IN DUBAI. IN RESPECT OF RS. 1 00 000/- IT WAS ARGUED THAT THE ASSESSEE RECEIVED THIS AMOUNT FROM HER SON NEERAJ KALRO.. I T WAS FURTHER ARGUED THAT THE AO AS WELL AS LD. CIT(A) NOT CONSIDERED THE FACT IN A PROPER MANNER. AGAINST THE UNEXPLAINED CASH CREDIT OF RS. 5 49 500/- IT WAS AR GUED BY THE LD. AR OF THE ASSESSEE THAT ASSESSEE HAD WITHDRAWN THE CASH FROM BANK A/C IN UNITED BANK OF INDIA FOR MAKING EXPENSES IN THE MARRIAGE OF HER SO N. AS THE MARRIAGE COULD NOT TAKE PLACE THE SAID AMOUNT WAS AGAIN DEPOSITED BA CK IN THE BANK A/C. THE LD. AR OF THE ASSESSEE FURTHER ARGUED THAT HE HAS PLACE D ON RECORD THE COPY OF CONFIRMATION GIFT OF RS. 1 00 000/- FROM NEERAJ KAL RO ALONG WITH THE STATEMENT OF ACCOUNT OF NEERAJ KALRO. THE ASSESSEE HAS FURTHE R PLACED ON RECORD THE COPY OF CERTIFICATE ISSUED BY PUNJAB & SIND BANK DATED 0 1.03.2014 WITH REFERENCE TO THE STATEMENT OF ACCOUNT OF SH.GOPAL CHABRIA SHOWIN G THE TRANSACTION OF RS. 10 00 000/- TO THE ASSESSEE ON 01.02.2006 COPY OF CHEQUE DRAWN ON PUNJAB & SIND BANK BEARING NO. 387627 AND THE COPY OF CONFIR MATION OF THE DONOR. THE IDENTITIES OF THE CREDITORS AND TRANSACTION THROUGH BANKING CHANNELS WERE NOT DISPUTED BY THE AO. THE REVENUE AUTHORITY HAS ALSO NOT DISPUTED THAT ASSESSEE WITHDREW THE CASH FROM HIS BANK ACCOUNT. THE REVENU E AUTHORITIES DISPUTED THE GENUINITY OF THE TRANSACTION. ON THE OTHER HAND THE LD. DR FOR REVENUE ARGUED THAT THE ASSESSEE HAS NOT FILED ANY PROOF REGARDING MARRIAGE OF HER SON. IT WAS ARGUED THAT IF THE PURPOSE OF MARRIAGE WAS NOT FUL FILLED THEN THE AMOUNT SHOULD HAVE BEEN DEPOSITED IN THE BANK IMMEDIATELY. THE HU GE CASH TRANSACTION WAS AGAINST OF POSSIBLE PROBABILITIES AND THUS THE FIN DINGS OF AUTHORITIES BELOW ARE IN ACCORDANCE WITH THE PROVISIONS OF LAW. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS OF THE PAR TIES AND GONE THROUGH THE ORDER OF AUTHORITIES BELOW INCLUDING THE DOCUME NT PLACED ON RECORD. THE AO WHILE FRAMING THE ASSESSMENT OBSERVED THAT ASSESSEE HAS RECEIVED GIFT OF RS.10 00 000/- RS. 3 00 000/- AND RS. 1 00 000/- F ROM SHRI GOPAL CHABRIA 3 ITA NO. 7625/M/20142 SMT. RANI LALCHAND KALRO VASUDEV CHABRIA AND NEERAJ KALRO RESPECTIVELY. THE ASSESSEE WAS ASKED TO PROVE THE CREDITWORTHINESS GENUINENESS OF THE GIFT BANK STATEMENT OF DONOR AND RELATIONSHIP WITH THE DONOR LOAN CONFIRMATION OF B ANK AND COMPLETE STATEMENT OF ACCOUNT OF UNITED BANK OF INDIA. THE ASSESSEE FI LED ITS REPLY AND CONTENDED THAT THE ASSESSEE RECEIVED RS. 1 00 000/- FROM HER SON NEERAJ KALRO RS. 10 00 000/- FROM GOPAL CHABRIA AND RS. 300 000/- FR OM SH VASUDEV CHABARIA. IT WAS FURTHER CONTENDED THAT NEERAJ KALRO HAS BEEN FILING RETURN FROM LAST SEVERAL YEARS. THE COPY OF CASH BOOK OF NEERAJ KALR O WAS ALSO FILED SHOWING THAT HE WAS HAVING SUFFICIENT CASH BALANCE TO DEPOS IT IN HIS ACCOUNT. THE ASSESSEE ALSO FILED COPY OF CONFIRMATION LETTER OF THE GIFT AND THE STATEMENT OF BANK ACCOUNT ABOUT THE GIFT FROM GOPAL CHABRIA THE AO NOT ACCEPTED THE CONTENTION OF THE ASSESSEE HOLDING THAT THE GIFT RE CEIVED FROM NEERAL KALRO DOES NOT APPEAR TO BE GENUINE AS THE CASH WAS DEPOSITED IN THE ACCOUNT OF NEERAJ KALRO ONE DAY BEFORE THE ISSUANCE OF CHEQUE OF RS. 1 00 000/- AND THE SAME WAS ADDED U/S. 68 AS AN UNEXPLAINED CASH CREDIT. IN RE SPECT OF GIFT FROM GOPAL CHABRIA THE AO CONCLUDED THAT THE ASSESSEE HAS NOT FURNISHED THE ORIGINAL STATEMENT OF DONOR AND THEIR CREDITWORTHINESS AND G ENUINENESS OF THE TRANSACTION IS NOT ESTABLISHED AND THE ADDITION WAS MADE U/S 68 OF THE ACT. THE EXPLANATION OF GIFT FROM VASUDEV CHABARIA WAS ACCEPTED. WITH R EGARD TO CASH DEPOSIT OF RS. 5 49 500/- ON VARIOUS DATES IN UNITED BANK OF INDIA & HDFC BANK THE ASSESSEE WAS ASKED TO FURNISH SOURCE OF CASH TRANSACTION. T HE AO CONCLUDED THAT ASSESSEE IS NON-CO-OPERATIVE AND DID NOT OFFER ANY EXPLANATION. THE SOURCE OF CASH TRANSACTION IS NOT PROVED THUS THE ENTIRE DE POSIT WAS TREATED U/S 68 OF THE ACT. DURING THE FIRST APPELLATE STAGE THE SIMILAR SUBMISSION AND CONTENTION WERE RAISED BEFORE THE FIRST APPELLATE AUTHORITY (FAA). WHILE CONSIDERING THE CONTENTION OF THE ASSESSEE WITH REGARD TO GIFT OF R S. 10 00 000/- THE LD. CIT(A) CONCLUDED THAT THE DONOR/GOPAL CHABRIA IS RESIDING AT DUBAI FROM LAST 24 YEARS AND SETTLED THERE. THE DONOR CONFIRMED THAT A GIFT OF RS. 10 00 000/- WAS GIVEN TO HIS COUSIN SISTER MISS. RANI KALRO (ASSESSEE) AN D AS PER EXPLANATION TO SECTION 56(2) THE COUSIN SISTER DID NOT FALL IN THE CATEGO RY OF RELATIVE THEREFORE THE SAID AMOUNT IS TAXABLE U/S 56(2)(V) OF THE ACT. FOR GIFT OF RS. 1 00 000/- IT WAS HOLD BY LD. CIT(A) THAT CASH WAS DEPOSITED IN THE DONOR S BANK ACCOUNT IMMEDIATELY 4 ITA NO. 7625/M/20142 SMT. RANI LALCHAND KALRO PRIOR TO ISSUANCE OF CHEQUE. AND IN RESPECT OF UNEX PLAINED CASH CREDIT IT WAS CONCLUDED BY LD. CIT(A) THAT THERE WAS NO EVIDENCE ABOUT THE MARRIAGE OR RE- SCHEDULE OF MARRIAGE OF HER SON. THERE IS NO EVIDEN CE THAT WITHDRAWAL WAS FOR THE PURPOSE OF MARRIAGE. IF THE ENTIRE AMOUNT WAS NOT UTILIZED THE WHOLE OF WITHDRAWAL SHOULD HAVE BEEN DEPOSITED IMMEDIATELY. 5. WE HAVE NOTICED THAT THE REVENUE AUTHORITIES HAVE N OT DISPUTED THE IDENTITY OF BOTH THE DONOR I.E. BROTHER SHRI GOPAL CHABRIA AND NEERAJ KALRO. THE CREDITWORTHINESS OF GOPAL CHABRIA WAS ALSO NOT DISP UTED. THE GIFT OF RS. 10 00 000/- WAS THROUGH BANKING CHANNEL. WE HAVE FU RTHER SEEN THAT THE ASSESSEE HAS PLACED ON RECORD THE CERTIFICATE OF PU NJAB & SINDH BANK DATED 01.03.2014 WHICH CONTAINED THE REFERENCE OF CHEQ UE NO. 387627 DATED 01.02.2006 COPY OF CHEQUE DATED 01.02.2006 DRAWN O N PUNJAB & SINDH BANK KAZI SYEED STREET MUMBAI AND CONFIRMATION OF DON OR DATED 27.09.2008 12.03.2008 & 29.10.2012. ALL THESE DOCUMENTS CLEARL Y ESTABLISHED THE CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF TH E TRANSACTION. SO FAR AS THE GIFT OF RS. 1 00 000/- RECEIVED FROM NEERAJ KALRO ( SON) IS CONCERNED ONLY OBJECTION OF THE REVENUE IS THAT THE AMOUNT WAS DEP OSITED JUST PRIOR TO ISSUANCE OF CHEQUE. MERE SUSPICION OF THE REVENUE THAT THE A MOUNT WAS DEPOSITED JUST BEFORE THE ISSUANCE OF CHEQUE CANNOT BE A GROUND FO R REJECTION OF CLAIM/GIFT WHERE CAPACITY OF THE DONOR AND THE IDENTITY IS NOT IN DISPUTE. THUS WE DELETE THE ADDITION OF RS. 1 00 000/-. WE HAVE OBSERVED THAT THE LD CIT(A) WHILE D ISPOSING THE APPEAL OF THE ASSESSEE INSTEAD OF EXAMINING THE GIFT FROM THE AN GEL OF SECTION 68 OF THE ACT EXAMINED THE SAME UNDER SECTION 56 OF THE ACT. THE LD CIT(A) CONCLUDED THAT COUSIN SISTER DID NOT FALL UNDER THE CATEGORY OF RELATIVE AS PER EXPLANATION ATTACHED WITH SECTION 56(2) (V) AND THEREFORE THE I MPUGNED GIFT IS LIABLE TO BE TAXED UNDER THIS SECTION. AS PER OUR OPINION THE CA SE OF THE ASSESSEE MAY FALL UNDER CLAUSE (VI) INSTEAD OF CLAUSE (V) OF SUB SECT ION (2) OF SECION56. SINCE LD CIT(A) EXAMINED THE CASE OF ASSESSEE UNDER SECTION 56(2) (V) OF THE ACT WITHOUT CONFRONTING THE ASSESSEE HENCE WE DEEM IT APPROPRIATE TO RESTORE THIS 5 ITA NO. 7625/M/20142 SMT. RANI LALCHAND KALRO PART OF GROUND TO THE FILE OF LD CIT(A) TO CONSIDER IT AFRESH AFTER GIVING THE OPPORTUNITY TO THE ASSESSEE AND PASS ORDER IN ACCOR DANCE WITH LAW. SO FAR AS THE CASH DEPOSIT OF RS. 4 85 000/- IN UNITED BANK OF INDIA & RS. 64500/- IN HDFC BANK ARE CONCERNED THE REVENUE AUT HORITY HAS NOT DISPUTED THE WITHDRAWAL OF CASH FROM HER BANK ON EARLIER DAT ES. THE OBJECTION OF REVENUE IS ONLY THAT CASH DEPOSIT VARIES AT DIFFERE NT OCCASIONS AND FREQUENT CASH DEPOSIT ITSELF ESTABLISHING NON-GENUINE CHARACTER O F THE EXPLANATION OFFERED. HOWEVER THE CONTENTION OF THE ASSESSEE THROUGHOUT THE ASSESSMENT PROCEEDINGS AND APPELLATE STAGE WAS THAT AMOUNT WAS WITHDRAWN FOR THE EXPENSES TO BE INCURRED FOR MARRIAGE OF HER SON. WE THINK THAT THE RE CANNOT BE ANY EVIDENCE ABOUT THE RE-SCHEDULE OF MARRIAGE THOUGH THERE MAY BE EVIDENCE OF SOLEMNISATION OF THE MARRIAGE. FURTHER THE OBJECT ION OF THE REVENUE IS THAT IF THE AMOUNT WAS NOT UTILIZED WHOLE AMOUNT OF WITHDR AWAL SHOULD HAVE BEEN DEPOSITED IMMEDIATELY. NEITHER THE AO NOR THE CIT ( A) WORKED OUT THE DIFFERENCE OF AMOUNT WITHDRAWN AND THE SUBSEQUENT D EPOSIT. THE GROUNDS OF ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT WHEN THE ASSESSEE HAS CATEGORICALLY PLEADED THAT THE CASH WAS WITHDRAWN F OR SPECIFIC UTILIZATION AND THE SAME WAS DEPOSITED IS BASED ONLY ON HYPOTHETICATION OF THE REVENUE AUTHORITIES. THUS THE ADDITION ON ACCOUNT OF CASH CREDIT OF RS. 5 49 500 IS DELETED. IN THE RESULT THE GROUND RELATED TO THE AD DITION OF GIFT OF RS. 10 00 000/-IS RESTORED TO THE FILE OF CIT(A) FOR FRESH FINDING AN D THE ADDITION ON ACCOUNT OF GIFT OF RS. 1 00 000/- FROM SON AND THE ADDITION O N ACCOUNT OF CASH CREDIT ARE DELETED. 6. IN THE RESULT APPEAL FILED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER 2016. SD/- SD/- ( B.R.BASKARAN ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 30/09/2016 S.K.PS 6 ITA NO. 7625/M/20142 SMT. RANI LALCHAND KALRO COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT.REGISTRAR) ITAT MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) MUMBAI. 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE. //TRUE COPY/