SRI ANJAN KUMAR DEY,BURDWAN vs. I.T.O., WARD-1(3), BURDWAN

The sole ground of appeal

Have heard both the parties and perused the records. The issue before me is about the explanation of assessee regarding cash of Rs. 20,06,469/- which was found deposited in the bank account of the assessee, which has been disbelieved by the authorities below. During the hearing before me, the ld. AR of assessee brought to my notice that in this year the assessee asked for his share of sale consideration from the sale of ancestral agricultural property because he needed money to get his son’s admission in the Victoria University, Melbourne, Australia. Therefore, he wanted to raise the funds for his son’s higher studies. According to the ld. AR, the sale consideration of ancestral agricultural property took place in AY 2006-07 and the money received from this transaction was not divided between the brothers since it was kept safely in the home chest. At the time of sale of immovable property, it was agreed upon between the family members that when there is a necessity, share (of sale consideration of the said land) will be disbursed. Since in this AY, necessity arose and the assessee had to raise the funds he requested for his share of consideration from the sale of ancestral agricultural immovable property and he received as part of his share of sale consideration an amount of Rs. 9,62,500/-, which the assessee deposited in his bank account. In respect of this explanation, I note that the assessee had filed all sale deeds pertaining to the sale of agricultural land (ancestral property). Details of which is reproduced by the AO at page-2 of the assessment order, wherein I note that the assessee has produced 18 (eighteen) sale deeds, from which the AO had taken note of the date of registration of the sale deed, which begins from 01-07-2005 to 06-02-2006 and the name of buyers have also been reflected in the given chart. The AO has disbelieved the source of this money only because according to him, since the assessee indulged in banking transaction, he would never have allowed the money to be kept idle in the house, when it could have earned interest income. It is noted that the AO has not doubted the sale of ancestral agricultural land, but he doubted the sale consideration received form it. Therefore, the AO disbelieved the source of income to the tune of Rs. 9,62,500/-. However, I do not countenance this action of the AO because when the assessee explained the source of Rs. 9,62,500/- and linked it to sale of agricultural land and had brought to the notice of the AO that source of cash deposit in the bank of Rs. 9,62,500/- was his share from sale consideration of ancestral agricultural property, which was kept in the safe custody of the family in the home chest could not have been disbelieved unless the AO is able to show that sale consideration generated from the sale of property (agricultural land) in AY 2006-07 had been invested in other asset or expended by the assessee. Since the assessee had discharged the primary onus by bringing the registered sale deeds of the Agricultural Property and the AO could not dispute the veracity of the sale, then the sale consideration emanating from the said transaction ( a part/share of assessee) as source cannot be disbelieved unless it is shown that the sale consideration was invested or expended by the assessee. Since the sale of agricultural land has been accepted, the sale consideration from it have to be accepted as source since it has not been invested or expended by the assessee. So I find that source of income was disclosed by the assessee and in that way the assessee has discharged his onus of source of Rs. 9,62,500/-.

Coming to the explanation of the assessee in respect of receipt of Rs. 7,00,000/- from his mother is concerned, I note that assessee in order to support the claim had filed an affidavit wherein she had sworn this fact of gift and the affidavit has been Notarised. It was brought to my notice that at the time of assessment order she was of 80 years old and she gifted Rs. 7,00,000/- to her grandson for higher study abroad out of her saving, which according to her she has inherited as stridhan and kept in her home chest. This explanation was also disbelieved by the AO as well as the ld. CIT(A) on the reasoning that she was actively transacting in her bank account 4 to 5 times monthly. According to the ld. AR though she had bank account, she never goes to the bank and her son and grandson would operate her bank account on her behalf. According to ld. AR children and grandchildren used to deposit money in her (mother) bank account and as per her instruction, son or grandson would withdraw the money for her. According to ld. AR, this transaction taking place in the bank by her children on behalf of her cannot be used against her to disbelieve the gift of Rs. 7,00,000/- (gift) which was given by her for the higher education of her grandson, who got admission in Victoria University, Melborune, Australia. I note that the assessee produced before me an Affidavit of his mother, Pratima Dey ( aged about 80 years), found placed at page-21 of the P/B, which shows that his mother had gifted of Rs. 7,00,000/- to the assessee on 20-04-2013 in cash for higher study in Victoria University at Melbourne, Australia for her grandson’s higher education. The AO notes that this money was her past saving and was inherited from Stridhan. She gifted the same for higher education of her grandson in Australia. I note that the assessee had discharged his onus of gift receipt of Rs. 7laks from his mother by producing the said affidavit, which has been notarised. She had explained the source of her accumulated amount of Rs. 7 lakhs, which she had given as gift to the assessee for higher education of her grandson. In the absence of any other evidence to show that the claim made by mother of assessee is false, it has to be taken that the assessee has discharged his onus. Therefore, I accept the explanation of assessee in respect of gift receipt of Rs. 7 lakhs 8. Coming to balance amount of Rs. 3,37,500/-, I note that the assessee had sufficient cash balance. The assessee I note had opening balance of Rs. 4,45,00 in this AY. Therefore, the assessee has sufficient cash balance. So the source of Rs. 3,37,500/- stands explained. In the light of the above discussion, the source of cash AY Anjan Kumar Dey deposit of Rs. 20,06,497/- stands explained. I note that the assessee has discharged the primary onus of the source of cash from the evidences furnished before the AO and the AO failed to bring any evidence to prove that the evidences furnished by the assessee is false. Therefore, the AO’s non-acceptance of the claim made by the assessee is based on surmises and conjectures, which cannot be countenanced. Therefore, I direct the AO to delete the addition of Rs. 20,66,497/-.

Before parting, it is noted that the order is being pronounced after ninety (90) days of hearing. However, taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. For coming to such a conclusion, we rely upon the decision of the Co-ordinate Bench of the Mumbai Tribunal in the case of DCIT vs. JSW Limited in & 6103/Mum/2018, Assessment Year 2013-14, order dt. 14th May, 2020. In the light of the above discussion, the appeal of assessee is allowed in above terms/discussion. In the result, the appeal of assessee is allowed. 10.