Sri G.N. Mohan, Mysore v. ITO, Bangalore

ITA 893/BANG/2009 | 2006-2007
Pronouncement Date: 19-03-2010 | Result: Partly Allowed

Appeal Details

RSA Number 89321114 RSA 2009
Bench Bangalore
Appeal Number ITA 893/BANG/2009
Duration Of Justice 6 month(s) 17 day(s)
Appellant Sri G.N. Mohan, Mysore
Respondent ITO, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 19-03-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 19-03-2010
Date Of Final Hearing 15-03-2010
Next Hearing Date 15-03-2010
Assessment Year 2006-2007
Appeal Filed On 02-09-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE B BENCH BANGALORE BEFORE SHRI SHAILENDRA KUMAR YADAV JM AND SHRI A. MOHAN ALANKAMONY AM ITA NO.893(BANG.)/2009 (ASSESSMENT YEAR : 2006-07) SHRI G.N.MOHAN 9 KRISHNA BLOCK POLICE QUARTERS KAMAKSHI HOSPITAL ROAD SARASWATHIPURAM MYSORE APPELLANT VS THE INCOME-TAX OFFICER WARD-1(4) MYSORE RESPONDENT ASSESSEE BY : SHRI S. VENKATESAN REVENUE BY : SMT. V.S.SREELEKHA O R D E R PER SHAILENDRA KUMAR YADAV JM : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) MYSORE DATED 15-07-2009 ON THE FOLLOWING GR OUNDS; 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE ASSESSEE ARE OPPOSED TO LAW EQUITY AND WEIGHT OF EVIDENCE PROBABILITIES FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT(A) IS NOT JUSTIFIED IN SUSTAINI NG A SUM OF RS.3.0 LAKHS FROM OUT OF THE ADDITION MADE BY THE A O OF A SUM OF RS.4.00 LAKHS BEING THE GIFT GIVEN BY ASSES SEES FATHER-IN-LAW AS NOT A GENUINE GIFT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE ASSESSEES CASE. THE ADDITION MADE IS ITA NO.893(B)/09 2 PURELY ON SUSPICION AND SURMISE ASSUMPTIONS AND PRESUMPTIONS AND CONTRARY TO EVIDENCE ON RECORD AND THEREFORE THE ADDITION MADE REQUIRES TO BE DELETED . 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSE SSING A SUM OF RS.1.00 LAKH BEING THE GIFT GIVEN BY THE AS SESSEES BROTHER AS NOT A GENUINE GIFT UNDER THE FACTS AND I N THE CIRCUMSTANCES OF THE ASSESSEES CASE. THE ADDITION MADE IS PURELY ON SUSPICION AND SURMISE ASSUMPTIONS AND PRESUMPTIONS AND CONTRARY TO EVIDENCE ON RECORD AND THEREFORE THE ADDITION MADE REQUIRES TO BE DELETED . 4. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSE SSING A SUM OF RS.2.00 LAKHS BEING THE GIFT GIVEN BY THE AS SESSEES BROTHERIN-LAW AS NOT A GENUINE GIFT UNDER THE FACT S AND IN THE CIRCUMSTANCES OF THE ASSESSEES CASE. THE ADDIT ION MADE IS PURELY ON SUSPICION AND SURMISE ASSUMPTIONS AND PRESUMPTIONS AND CONTRARY TO EVIDENCE ON RECORD AND THEREFORE THE ADDITION MADE REQUIRES TO BE DELETED . 5. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN DEN YING THE DEDUCTION CLAIMED U/S 80C OF THE ACT OF RS.1.00 LAKH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE ASS ESSEES CASE. 6. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HONBLE CCIT/DG THE ASSESSEE DENIES HIMSELF LIA BLE TO BE CHARGED TO INTEREST U/S 234B OF THE IT ACT WHICH U NDER THE FACTS AND IN THE CIRCUMSTANCES OF THE ASSESSEES CA SE DESERVES TO E CANCELLED. 2. THE FIRST ISSUE COVERED IN GROUND NOS.1 TO 4 IS WITH REGARD TO GENUINENESS OF THE GIFT. AT THE OUTSET OF HEARING IT WAS POINTED OUT ITA NO.893(B)/09 3 BY THE AR THAT THIS ISSUE IS COVERED IN ASSESSEES OWN CASE IN ITA NO.1214(B)/08 FOR THE AY: 2005-06 WHEREIN SIMILAR ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AS UNDER; FROM THE FACTS IT IS SEEN THAT FATHER-IN-LAW OF THE ASSESSEE APART FROM FILING CONFIRMATION LETTER HA D ALSO APPEARED BEFORE THE AO AND STATED ON OATH THAT HE HAS GIVEN GIFT T HIS SON-IN-LAW IN A SUM OF RS.2 50 000/-. THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LEARNED CIT(A) ARE PURELY ON SUSPICION AND SURMISE. NO OTHER CONVINCING AND COGENT MATERIAL WAS BROUGHT ON RECORD BOTH BY THE AO AND THE LEARNED CIT(A) THAT NO SUCH GIFT WAS GIV EN TO THE ASSESSEE. BOTH THE AUTHORITIES BELOW FAILED TO ASSAIL THE STATEMENT RECORDED ON OATH. WE THEREFO RE DELETE THE ADDITION OF RS.1.00 LAKH SUSTAINED BY TH E LEARNED CIT(A). IT IS ORDERED ACCORDINGLY. 3. FACTS BEING SIMILAR SO FOLLOWING THE SAME REAS ONING WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF THE C IT(A). WE DELETE THE ADDITION OF RS.3.00 LAKHS OUT OF THE ADDITION OF R S.4.00 LAKHS MADE BY THE AO BEING THE GIFT GIVEN BY THE ASSESSEES F ATHER IN LAW. SIMILARLY A GIFT OF RS.1.00 LAKH RECEIVED FROM ASS ESSEES BROTHER CANNOT BE SAID TO BE NON-GENUINE. FURTHER ON SIMI LAR LINE AN ADDITION OF RS.2.00 LAKHS BEING THE GIFT GIVEN BY T HE ASSESSEES BROTHER-IN-LAW IS NOT JUSTIFIED AND THE SAME IS ALS O DIRECTED TO BE DELETED. THE AFORESAID GIFTS WERE GIVEN AT THE TIM E OF CONSTRUCTION OF ITA NO.893(B)/09 4 THE ASSESSEES HOUSE BY ASSESSEES FATHER-IN-LAW B OTHER-IN-LAW AND BOTHER ARE NOT UNUSUAL PHENOMENA AND THE SAME MAY B E GIVEN OUT OF LOVE AND AFFECTION. THERE IS NO CASE BY REVENUE TH AT ASSESSEES OWN MONEY WAS ROUTED THROUGH THE ABOVE SAID RELATIVES. ACCORDINGLY THE ADDITIONS IN QUESTION ARE DELETED. 4. THE NEXT ISSUE IS WITH REGARD TO DEDUCTION CLA IMED U/S 80C OF THE IT ACT. THE ISSUE OF 80C HAS BEEN DENIED O N THE GROUND THAT THE PROPERTY IN QUESTION HAD BEEN LET OUT FOR COMME RCIAL PURPOSE WHILE RELIEF U/S 80C ARE GRANTED FOR RESIDENTIAL PR EMISES. THE QUESTION OF RESIDENTIAL PREMISES HAS TO BE LOOKED A T THE TIME OF CONSTRUCTION OF THE BUILDING. FOR THIS THE AO IS S UPPOSED TO LOOK INTO WHETHER THE SITE PLAN FROM THE CONCERNED MUNICIPAL CORPORATION HAD BEEN OBTAINED FOR THE RESIDENTIAL PURPOSE OR OTHERW ISE. THE AO ALSO SHOULD LOOK INTO THE COMPLETION CERTIFICATE OF THE BUILDING WHETHER THE SAME WAS GIVEN FOR RESIDENTIAL PURPOSE. FURTHER THE AO ALSO CAN LOOK INTO THE ISSUE WHETHER THE LOAN FOR SAME WAS OBTAI NED FOR THE PURPOSE OF RESIDENTIAL PROPERTY OR OTHERWISE. IN CA SE UNDER COMPELLING SITUATION IF THE ASSESSEE HAD TO LET OU T THE PREMISES FOR COMMERCIAL PURPOSE IT WILL NOT CHANGE THE BASIC CH ARACTER OF PROPERTY. THE RESIDENTIAL CHARACTER OF PROPERTY HAS TO BE DET ERMINED FROM THE PURPOSE FOR WHICH CONSTRUCTION WAS RAISED AND OBTAI NING LOAN FOR THE SAME. IN CASE THE ASSESSEE HAS TO LET OUT THE PRO PERTY IN QUESTION FOR COMMERCIAL PURPOSE HE MAY HAVE TO PAY THE COMMERCI AL TAX ON THE ITA NO.893(B)/09 5 SAID PROPERTY AND ELECTRICITY CHARGES AT HIGHER RAT E. ACCORDINGLY WE RESTORE THIS ISSUE TO THE AO WITH DIRECTION TO DECI DE THE SAME IN LIGHT OF ABOVE DISCUSSION AND AS PER LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO ASSESSEE. THIS ISSUE IS ALLOWED FOR STAT ISTICAL PURPOSES. 5. IN THE RESULT THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE (A. MOHAN ALANKAMONY) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: BANGALORE DATED: AM* COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF(BLORE) 7. GF(DELHI) BY ORDER AR ITAT BANGALORE