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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.158/CTK/2018 Assessment Year : 2009-2010
Sobha Naveen Agarwal, Flat Vs. ITO Jeypore Ward, Jeypore. No.301, Kuber Regency, Congress Nagar, Nagpur. PAN/GIR No.AIOPA 5264 E (Appellant) .. ( Respondent)
Assessee by : None (written submission) Revenue by : Shri Piyush Kolhe, CIT DR
Date of Hearing : 27/09/ 2018 Date of Pronouncement : 28/09/ 2018
O R D E R Per N.S.Saini, AM This is an appeal filed by the assessee against the order of
the Ld Pr. Commissioner of Income Tax-1, Bhubaneswar dated
26.3.2018 for the assessment year 2009-2010.
The sole issue involved in this appeal is that the Ld Pr.
Commissioner of Income Tax-1, Bhubaneswar was not justified in
holding the order passed by the Assessing Officer under section
143(3)/254 of the Act dated 30.3.2016 as erroneous and
prejudicial to the interest of the revenue.
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The facts of the case are that the Ld Pr. Commissioner of
Income Tax-1, Bhubaneswar observed that the assessee had
declared addition to her capital account of Rs.15,00,000/- in the
financial year 2008-09 relating to assessment year 2009-2010 and
the sources of addition was explained to be cash gift received from
her husband, Shri Brindavandas Agarwal and her daughter Smt.
Deepali Agarwal of Rs.10,00,000/- and Rs.5,00,000/-,
respectively. The Assessing Officer added Rs.15,00,000/- in the
hands of the assessee being not satisfied with the creditworthiness
of the donor of the cash gifts. The assessee thereafter filed
appeal to the Tribunal and the Tribunal vide order dated 3.2.2015
set aside the order of the CIT(A) and restored the matter back to
the file of the Assessing Officer to re-examine the issue or
genuineness of cash gifts of Rs.15,00,000/- in the hands of the
assessee. While completing the assessment, the Assessing Officer
failed to re-examine the issue properly and could not apply his
mind to the genuineness of the transaction resulting in allowance
of this introduction to capital account of the assessee by accepting
cash gifts from her husband and daughter. Therefore, the
proceedings under section 263 of the Act were initiated by
issuance of notice dated 6.8.2018.
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Ld Pr. Commissioner of Income Tax-1, Bhubaneswar
observed that no prior withdrawals from bank accounts of the
respective donors were made before remittance of gifts as
evidenced from the bank statements submitted at the time of
assessment. Ld A.R. has neither referred about bank statement of
the donors nor explained any reason for absence of any
withdrawal from any of the bank accounts of the donors for this
purpose. He observed that it could not be explained how an
amount of Rs.15,00,000/- was provided as a cash gift from cash
in hand to the assessee avoiding the banking channel through
cheque/Demand draft mode. Therefore, the genuinity of the
transaction was not established beyond doubt and could not be
accepted on the details furnished during assessment proceedings.
Ld A.R. was silent about the observation of the CIT(A) while
confirming the addition on this issue made at the time of original
assessment by dismissing the relevant ground of appeal. He
observed that with these documents though the creditworthiness
of the donor may be established but the genuinity of the
transaction could not be proved beyond doubt. Therefore, the
claim of the assessee in this regard is not accepted and the
revision of the Assessing Officer’s order is warranted u/s.263 of
the Act being erroneous so far as prejudicial to the interest of the
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revenue. He relied on the decision of Hon’ble Supreme Court in
the case of Malabar Industrial Company vs CIT, 243 ITR 83 (SC),
wherein, it has been held that an incorrect assumption of facts or
an incorrect application of law will satisfy the requirement of the
order being erroneous. Therefore, he set aside the order of
assessment dated 30.3.2016 pertaining to this issue and restored
the matter back to the file of the Assessing Officer t redo the
assessment with regard to the said issue.
Ld A.R. has filed a written submission before us, wherein, it
has been stated that in the appeal against the original order
passed u/s.143(3) on 27.12.2011, the Tribunal restored the
matter back to the file of the Assessing Officer for further
examination of the genuineness of the gifts of Rs.15 lakhs in ITA
No.105/CTK/2014 order dated 3.2.2015. It is submitted that in
the second round, the assessment was completed u/s.143(30/254
on 30.3.2016, wherein, the issue of gifts was thoroughly
examined by the Assessing Officer and accepted as genuine. This
fact was explained before the Ld Pr. Commissioner of Income Tax-
1, Bhubaneswar during 263 proceedings. Ld Pr. Commissioner of
Income Tax-1, Bhubaneswar set aside the order of the Assessing
Officer treating it as erroneous and also prejudicial to the interest
of the revenue. He has thrust upon the Assessing Officer to
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inquiry into the genuineness of the gifts again and re-do the
assessment. In these circumstances, it cannot be said that the
assessment is erroneous so far as prejudicial to the interest of the
revenue as the Assessing Officer thoroughly examined the issue
and accept the genuineness of the receipt of the gifts and
completed the assessment. It is submitted that the case laws
cited by the ld Pr. Commissioner of Income Tax-1, Bhubaneswar
are not applicable in the case of the assessee.
Ld D.R. supported the order of the ld Pr. Commissioner of
Income Tax-1, Bhubaneswar.
We have heard the ld D.R., perused the orders of lower
authorities and written submission filed by the assessee. In the
instant case, the assessee had declared addition to her capital
account of Rs.15,00,000/- in the financial year 2008-09 relating to
assessment year 2009-2010 and the sources of addition was
explained to be cash gift received from her husband, Shri
Brindavandas Agarwal and her daughter Smt. Deepali Agarwal of
Rs.10,00,000/- and Rs.5,00,000/-, respectively. The Assessing
Officer added Rs.15,00,000/- in the hands of the assessee being
not satisfied with the creditworthiness of the donor of the cash
gifts. The matter travelled upto the Tribunal and the Tribunal set
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aside the order of the CIT(A) with the direction to re-examine the
issue of genuineness of cash gifts of Rs.15 lakhs in the hands of
the assessee. The Assessing Officer completed the assessment in
pursuance to the Tribunal’s direction and accepted the claim of the
assessee regarding cash gifts of Rs.15 lakhs.
The Pr. Commissioner of Income Tax, Bhubaneswar
observed that while completing the assessment, the Assessing
Officer failed to re-examine the issue properly and could not apply
his mind about the genuineness of the transaction. Therefore, by
invoking the provisions of section 263 of the Act, he set aside the
order of the Assessing Officer and directed him to re-do the
assessment after conducting necessary inquiries and verification
on the issue.
Being aggrieved against the said order, the assessee is in
appeal before us.
The only argument of ld A.R. of the assessee is that the
Assessing Officer being satisfied with the creditworthiness of the
donors accepted the cash gift of Rs.10 lakhs from her husband
Shri Brindavandas Agarwal and Rs.5 lakhs from her daughter Smt.
Deepali Agarwal in cash as genuine and no addition was made by
him in an order passed u/s.143(3) r.w.s 254 of the Act. The Pr.
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Commissioner of Income Tax was not justified in setting aside the
order of the Assessing Officer and restoring the matter back to his
file for verifying the genuineness of the gifts.
We find from the order of the Assessing Officer that the
assessee has filed before him copies of capital account of Shri
Brindabandas Agarwal, husband of the assessee for the financial
years 2005-06 to 2008-09 to explain the source of gift of Rs.10
lakhs to the assessee. Similarly, the assessee has filed copies of
capital account from financial year 2003-04 to 2008-09 of her
daughter Smt. Deepali Agarwal to explain the source of gifts of
Rs.5 lakhs in cash received by the assessee. The assessee has
not filed copies of these capital accounts in the paper book filed
before us.
Further, we find from the order of the Pr. Commissioner of
Income Tax, Cuttack that before him, the assessee filed cash flow
statement of both the donors from financial year 2005-06, capital
account, gift deed and confirmation letters to explain the
genuineness of gifts of Rs.10 lakhs in cash from the husband Shri
Brindabandas Agarwal and Rs.5 lakhs in cash from her daughter
Smt Deepali Agarwal. The cash flow statement has not been filed
by ld A.R. of the assessee in the paper book filed before us.
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Hence, we are unable to decide the issue completely. In the
above facts and circumstances of the case, we find no good
reason to interfere with the order of Pr. Commissioner of Income
Tax, Cuttack, who has set aside the order passed by the Assessing
Officer under section 143(3) r.w.s 254 of the Act and restored the
matter back to the file of the Assessing Officer to verify the
genuineness of gifts. We, therefore, dismiss the ground of appeal
of the assessee.
In the result, appeal of the assessee is dismissed.
Order pronounced on 28/09/2018.
Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 28/09/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Sobha Naveen Agarwal, Nagpur
The Respondent. ITO, Jeypore, 3. The CIT(A)- 4. Pr.CIT- Cuttck 5. DR, ITAT, Cuttack 6. Guard file. //True Copy// By order
Sr. Pvt. Secretary, ITAT, Cuttack
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