SUDARSHAN SHARMA,KOTA vs. ITO, KOTA

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh HkkxpUn] ys[kk lnL; ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No.408/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2010-11 cuke Shri Sudershan Sharma The ITO Vs. 7, Adarsh Nagar, Kota Ward- 2(1), Kota LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BBLPS 9561 H vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by: Shri Sajneev Mathur & Shri Satish Ajmera, CA jktLo dh vksj ls@ Revenue by: Smt. Poonam Rai, DCIT- DR lquokbZ dh rkjh[k@ Date of Hearing : 21/02/2017 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 22/02/2017 vkns'k@ ORDER PER BHAGCHAND, AM The assessee has filed an appeal against the order of the ld. CIT(A) , Kota dated 04-02-2016 for the assessment year 2010-11 raising following grounds of appeal. ‘’1. The ld. CIT(A) erred in not accepting the contention that the addition of Rs. 1,76,000/- was erroneous and the assessee was pressured to surrender the said.

2 ITA No.408/JP/2016 Shri Sudharshan Sharma vs. ITO, Ward- 2(1), Kota 2. The ld. CIT(A) erred in not accepting the gift of Rs. 1.01 lac and not deleting the addition made by the AO on this.

2.1 Apropos Ground No. 1 of the assessee, the facts as emerges from

the order of the ld. CIT(A) is as under:-

‘’The assessee in support of these cash creditors produced confirmations/ affidavits of some persons i.e. Shri Subodh Bharadwaj, Shri Ashish Saraswat, Shri Amit Sharma, Smt.Meena Sharma, Shri Vimal Kumar Sharma, Shri Anjani Jha, Shri Deepak Chowdhary aggregating to Rs. 1,19,000/-. He also produced Shri Deepak Choudhary, Shri Ashish Saraswat for recording their statement in support of loan given by them to the assessee. However,on 17-01- 2013,he filed his revised return by surrendering 12 cash creditors amounting to Rs. 176,000/- out of above 17 cash creditors for Rs. 2,60,000/-. The statement in this regard considered and being not entertaining his revised return of income filed on 17-01-2013 as belated /honest, the surrendered amount in the revised return Rs. 1,76,000/- is added to total income shown by theaa originally at Rs. 1,58,870/-. Penalty proceedings u/s 271(1)© is initiated separately on this account for filing inaccurate particulars/ concealing income.

I have gone through the assessee's submission and AO’s findings. In view of the fact that the assessee filed a revised though invalid return beyond time but before the conclusion of assessment proceedings with an intention to ward off the penal proceedings and additions expected in the course of assessment since there was already enquiry going on regarding the creditors, he cannot now claim that he was pressurized to do so. The fact is that he was unable to prove any credits or give any documents from the creditors to support his contentions either during the assessment or during the appellate proceedings. His explanation regarding the AO pressurizing or torturing him to force surrender of

3 ITA No.408/JP/2016 Shri Sudharshan Sharma vs. ITO, Ward- 2(1), Kota the said amount of Rs. 1,76,000/- is not borne out by any facts produced. The addition has therefore, been rightly made in my opinion. The same is accordingly confirmed.

2.2 After hearing both the parties and perusing the materials available

on record, it is observed that the ld. AR of the assessee could not establish

that AO had pressurized or tortured the assessee while making addition

of Rs. 1,76,000/- during the course of assessment proceedings. It was

assessee who has filed the return voluntarily. The ld. CIT(A) has also

taken the same view that it is not borne out from the order of the AO that

he had pressurized or tortured the assessee in making addition of Rs.

1,76,000/-. In view of above facts and circumstances of the case, I find

no reason to interfere with the order of the ld. CIT(A) on this issue. Thus

Ground No. 1 of the assessee is dismissed.

3.1 Apropos Ground No. 2 of the assessee, the facts as emerges from

the order of the ld. CIT(A) is as under:-

‘’The AO in the assessment order mentioned as under:- The assessee has shown a gift of Rs. 1,01,000/- from his uncle during the year under consideration. Perusal of statement record of uncle of the assessee and the gift deed filed, it reveals that the uncle of the assessee has got retired on 31-10-2009 and availed retirement benefits after this date while he has given gift of Rs. 1,01,000/- to the assessee on 20-10-2009. This gift has been given in cash and there is no witness / other evidence except this gift deed. This gift deed is neither notorized nor supported from other document. The

4 ITA No.408/JP/2016 Shri Sudharshan Sharma vs. ITO, Ward- 2(1), Kota uncle of the assessee has stated that he never gifts anything to his wife or to his son but gifted Rs. 1,01,000/- to his nephew before his retirement out of cash lying with him at his house. However, no source of cash lying at his house has been explained by the uncle of assessee. This is a case of capital appreciation by the assessee and after taking the case of scrutiny, he cooked the sotry of gift taken from his uncle. The said income was actually his income from undisclosed sources during the year under consideration. Hence, the same is added in his total income. Penalty proceedings u/s 271(1)© is initiated separately on this account for filing inaccurate particulars / concealing income

I have gone through assessee's submission and AO’s findings. There is no evidence which could justify the availability of cash with the donor and also if he wanted to prove the source, nothing prevented the assessee from obtaining bank statements of the donor to the AO. The gift deed in question was not even notorized. Under the circumstances, the appellant has failed to prove the bona fides of the gift and therefore, I have no reason to disagree with the findings given by the AO in the assessment order. the addition of Rs. 1,01,000/- is therefore, confirmed.’’

3.2 After hearing both the parties and perusing the materials available

on record, it is observed from gift deed page 22 of the paper Book filed

by the ld. AR of the assessee wherein the uncle of the assessee Shri Gopal

Dutt Sharma had confirmed that he had gifted a sum of Rs. 1.01 lac to

his nephew i.e. assessee by cash on 20-10-2009 out of love and

affection. The uncle of the assessee Shri Gopal Dutt Sharma had

explained the source which is out of withdrawal from his Saving Bank

Account No. 51019707295, SBBJ, Station Road, Kota. His PAN is

5 ITA No.408/JP/2016 Shri Sudharshan Sharma vs. ITO, Ward- 2(1), Kota AGBPS 2570E. The assessee has also shown the gift of Rs. 1.01 lac from his uncle in his capital account as on 31-03-2010 (Page 20 of the paper book). In view of the above facts and documentary evidences, in my considered view, the lower authorities were not justified in sustaining the addition of Rs. 1.01 lacs. I direct to delete the same. Thus Ground No. 2 of the assessee is allowed. 4.0 In the result, the appeal of the assessee is partly allowed. Order pronounced in the open court on 22 /02/2017.

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