Smt. Lado Devi, Kolkata v. I.T.O., Ward -1(4), Siliguri, Darjeeling

ITA 86/KOL/2010 | 2003-2004
Pronouncement Date: 21-01-2011

Appeal Details

RSA Number 8623514 RSA 2010
Assessee PAN ACCPD6730F
Bench Kolkata
Appeal Number ITA 86/KOL/2010
Duration Of Justice 1 year(s) 7 day(s)
Appellant Smt. Lado Devi, Kolkata
Respondent I.T.O., Ward -1(4), Siliguri, Darjeeling
Appeal Type Income Tax Appeal
Pronouncement Date 21-01-2011
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 21-01-2011
Date Of Final Hearing 03-02-2011
Next Hearing Date 03-02-2011
Assessment Year 2003-2004
Appeal Filed On 14-01-2010
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL : SMC-B BENCH : KOLKATA [BEFORE HON. SHRI C. D. RAO ACCOUNTANT MEMBER] ITA NO. 86 (KOL) OF 2010 : ASSESSMENT YEAR : 2003- 04 SMT. LADO DEVI -V S.- INCOME TAX OFFICER/WARD-1(4) KOLKATA [PAN : ACCPD 6730 F] SILIGURI. [APPELLANT] [RESPONDENT] APPELLANT BY : SHRI R. SALARPU RIA RESPONDENT BY : SHRI H. N. SINGH THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 2003-04 AGAINST THE ORDER OF LD. CIT(A)-SILIGURI DATED 04.11.2009. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE REGARDING CONFIRMATION OF ADDITIONS OF RS.2 00 000/- MADE U/S. 68 OF THE INCOME TAX ACT IN RESPECT OF GIFTS RECEIVED FROM SMT. JAMUNA DEV KANDOI AND SMT. SAROJ KANDOI. 3. BRIEF FACTS OF THE CASE ARE THAT WHILE DOING SCR UTINY ASSESSMENT THE ASSESSING OFFICER HAS DISALLOWED THE GIFTS RECEIVED BY THE ASSESSEE FROM TWO PARTIES I.E. SMT. JAMUNA DEV KANDOI AND SMT. SAROJ KANDOI BY OBSERVING AS UNDER :- WHILE GOING THROUGH THE ORDER SHEET IT WAS SEEN T HAT THE CASE HAD BEEN ADJOURNED ON VARIOUS DATES I.E. 24.11.04 10.01.05 10.03.05 28.04.05 09.06.05 AND THE DONORS HAD NOT BEEN PRODUCED FILL 27.07.200 5. A PETITION SUBMITTED BY THE A.R. SHRI NAKIPURIA STATED THAT SMT. JAMUNA DEV I KANDOI ONE OF THE DONOR HAD BEEN SERIOUSLY ILL FROM MARCH 2005 AND HAD SUCC UMBED TO HER ILLNES ON .17.07.05 AS PER DEATH CERTIFICATE GIVEN BY DR. B. L. SHURMA (M.S.). DURING THE COURSE OF SCRUTINY HEARING AND AS PER SUBMISSION G IVEN BY A.R. SHRI NAKIPURIA ON 27.07.05 IT VAS LEARNT THAT SMT. JAMUNA DEVI KA NDOI HAD BEEN SERIOUSLY ILL FROM MARCH 2005. IT SHOULD HOWEVER BE NOTED THAT SM T. JAMUNA DEVI KANDOI HAD PRIOR TO HER ILLNESS FILED HER INCOME TAX RETURN FO R A.Y. 2003-04 ON 08.02.05 AND APPLIED FOR PAN SIMULTANEOUSLY. FURTHERMORE BEING AN OLD LADY OF 82 YEARS AS GIVEN ON THE DEATH CERTIFICATE IT WAS SURPRISING T HAT THE SIGNATURE ON THE SAID RETURN WAS SO CLEAR CUT. TO CONFIRM THE GENUINENESS OF THE SIGNATURE EARLIER ASSESSMENT RECORDS WERE UNEARTHED. ON COMPARISON OF THE SIGNATURES ON THE RETURNS OF A.Y. 1990-91 1991-92 1992-93 1996-97 WITH THAT OF THE SIGNATURE ON THE RETURN FOR THE YEAR 2003-04 GIFT MEMORANDUM AN D THE COPY OF THE CHEQUE ITA NO.86/KOL/2010 2 OBTAINED FROM THE BANK ANY ORDINARY LAYMAN CAN SEE THAT THE SAID PAPERS WERE NOT SIGNED BY ONE AND THE SAME PERSON. MOREOVER BA NK STATEMENT IN RESPECT OF THE SAID DONOR WAS ASKED FOR. ON GOING THROUGH THE STATEMENT IT WAS SEEN THAT THERE HAD BEEN A CASH DEPOSIT OF RS.1 00 000/- ON 03.12.02 AND A CHEQUE FOR THE ENTIRE AMOUNT WAS DRAWN IN FAVOUR SNIT. LADO DEVI O N THE SAME DAY AND WAS CLEARED ON 04.12.2002. THE TRANSACTION DETAILS OF T HE BANK ACCOUNT ALSO SHOWS THAT THE DONOR HABITUALLY MAINTAINS ONLY MINIMAL BA LANCE IN HER ACCOUNT AND THAT ANY HEAVY DEPOSIT IS ALWAYS FOLLOWED BY WITHDRAWALS OF THE ENTIRE AMOUNT IN THE FOLLOWING DAY. BASED ON THE ABOVE FACTS IT CAN BE CONCLUDED THAT THE GIFT TRANSACTION IS NOT GENUINE AS EVIDENCED BY THE DIFFERENT SIGNATURES IN THE VARIOUS PAPERS MENTIONED ABOVE. IN THE CASE OF SMT. SAROJ KANDOI .STATEMENT U/S 13 1 WAS TAKEN ON 05.09.2005. AS PER THE STATEMENT IT WAS KNOWN THAT SMT. SAROJ KAN DOI WAS IN THE BUSINESS OF KNITTING SEWING AND FARIA AND HER MONTHLY INCOME W AS AROUND RS.3 500/- PER MONTH. IT WAS ALSO LEARNT THAT SHE HAS 5 DAUGHTERS AGED 21 19 16 14 AND 12 YEARS OF AGE. HER HUSBAND HAS A CEMENT RETAIL BUSIN ESS BY THE NAME M/S. RATAN LAL KANDOI S.F. ROAD SILIGURI. AS PER HER STATEME NT THEY LIVED IN A RENTED HOUSE AND DID NOT OWN ANY MOVABLE OR IMMOVABLE PROP ERTY. THE DONOR ALSO STATED THAT LADO DEVI WAS A DISTANT RELATIVE OF THE FAMILY AND THERE WAS NO OCCASION WHEN THE SAID GIFT WAS MADE. BASED ON THE ABOVE FINDINGS THE ASSESSING OFFICER I S OF THE VIEW THAT BOTH THE DONORS HAVE MEAGER INCOME AND CONSIDERABLE FAMILY LIABILITIES. THE GIFT IN QUESTION WHICH AMOUNTS TO BE MORE THAN ANNUAL INCOME CANNOT BE GENUINE. AS SUCH THE GIFT AMOUNT OF RS.2.00 LAKH FROM BOTH THE DONORS IS NOTHING BUT UNDISCLOSED INCOME OF THE ASSESSEE AND ADDED TO THE INCOME OF THE ASSESSEE. THEREFORE THE LD. CIT(A) CONFIRMED THE S AME. 4. AGGRIEVED BY THIS NOW THE ASSESSEE IS IN APPEAL BEFORE US. 5. AT THE TIME OF HEARING LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT BOTH THE DONORS HAVE GIVEN AFFIDAVIT TO THE FA CT THAT THEY HAVE GIVEN THE GIFTS TO THE ASSESSEE. SMT. JAMUNA DEVI KANDOI IS A REGULAR ASSESSEE EVEN FROM THE YEAR 1990-91 AND FILED RETURN OF INCOME AND THE OTHER DONOR PERSONALLY APPEARED BEFO RE THE ASSESSING OFFICER AND CONFIRMED THE FACT THAT SHE HAS DONATED AN AMOUNT OF RS.1.00 LAKH TO THE ASSESSEE. UNDER THESE CIRCUMSTANCES IT IS NOT FAIR ON THE PART OF THE REVENUE TO DISBELIEV E THESE STATEMENTS MADE BY BOTH THE DONORS. HE FURTHER CONTENDED THAT THE REVENUE HAS NOT BROUGHT ANY MATERIAL ON RECORD TO THE FACT THAT THE ASSESSEES UNACCOUNTED INCOME HAS BEEN ROUTED THROU GH THE SAID DONORS. HE THEREFORE REQUESTED TO DELETE THE ADDITION OF RS.2.00 LAKH. HE FURTHER RELIED ON SEVERAL CASE LAWS IN RESPECT OF THE FACT ITA NO.86/KOL/2010 3 THAT ONCE GIFTS ARE ROUTED THROUGH BANK ACCOUNT AND THE DONORS CONFIRMED THE SAME BY AFFIDAVIT THE SAME CANNOT BE DENIED. 6. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESEN TATIVE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES AND FURTHER CONTENDED THAT IN T HE PRESENT CASE THE DONORS INCOME IS VERY MEAGER AND THEY ARE NOT IN A POSITION TO DONATE RS. 1.00 LAKH EACH TO THE ASSESSEE. IN THE ABSENCE OF CREDITWORTHINESS THE REVENUE HAS ADDED BACK THES E GIFTS AS INGENUINE TRANSACTION. THEREFORE HE REQUESTED TO CONFIRM THE ACTION OF THE REVENUE A UTHORITIES. HE ALSO RELIED ON THE JUDICIAL PRONOUNCEMENT IN SUPPORT OF THE SUBMISSIONS. 7. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE MATERIAL AVAILABLE ON RECORD INCLUDING THE CASE LAWS RELIED BY BOTH THE P ARTIES. IT IS OBSERVED FROM RECORDS THAT SMT. JAMUNA DEVI KANDOI IS A REGULAR ASSESSEE AND HE FIL ED REGULAR RETURN OF INCOME FROM ASSESSMENT YEAR 1990-91 ONWARDS AND SHE HAS GIFTED THIS AMOUNT OF RS.1.00LAKH BY ACCOUNT PAYEE CHEQUE THOUGH IMMEDIATELY PRIOR TO THE ISSUE OF CHEQUE AN AMOUNT OF RS.1.00 LAKH HAS BEEN DEPOSITED IN HER BANK ACCOUNT. AS REGARDING OTHER DONOR SHE HAS CONFIRMED THE FACT THAT SHE HAS DONATED RS.1.00 LAKH TO THE ASSESSEE EVEN BEFORE THE ASSESS ING OFFICER. UNDER THESE CIRCUMSTANCES I AM OF THE VIEW THAT IN ORDER TO DECIDE THE CREDITWORTH INESS OF THE DONORS THE CAPITAL AVAILABLE WITH THEM AT THE TIME OF GIFT IS MORE APPROPRIATE THAN T HE ANNUAL INCOME. AS IN THIS CASE THE REVENUE HAS NOT VERIFIED THE SAME IN THE INTEREST OF JUSTI CE I SET ASIDE THE ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY THE BALANCE IN THE CAPITAL ACCOUNTS OF THE RESPECTIVE DONORS AND DECIDE THE SAME AFRESH AF TER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 21. 01. 2011. SD/- [ C. D. R AO ] ACCOUNTANT MEM BER DATED : 21ST JANUARY 2011. ITA NO.86/KOL/2010 4 COPY FORWARDED TO THE - 1. SMT. LADO DEVI C/O. M/S. SALARPURIA JAJODIA & CO. 7 C.R. AVENUE KOLKATA-700 072. 2. INCOME TAX OFFICER/WARD-1(4) AAYAKAR BHAWAN MATIGARA SILIGURI. 3. CIT(A)- (4) C IT- 5. D.R. I.T.A.T. KOLKATA. [TRUE COPY] BY ORDER DEPUTY/ASSISTANT REGISTRAR (KKC) I .T.A.T. KOLKATA.