I.T.O WD - 55(2),KOLKATA., KOLKATA vs. DR. ANISUR RAHMAN, KOLKATA

SHRI M.BALAGANESH, AM :

This appeal of the revenue arises out of the order of the Learned CIT(A), XXXVI, Kolkata in Appeal No. 939/CIT(A)-XXXVI/Kol/09-10/1561 dated 08.11.2012 against the order of assessment framed for the Asst Year 2004-05 u/s 143(3) read with section 147 of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’).

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3.1. The brief facts of this issue is that the Learned AO observed that the sums of Rs. 3,25,000/- and Rs. 44,000/- were found credited in the assessee’s bank statement maintained with Bombay Mercantile Cooperative Bank. When enquired about the sources for the same, the assessee explained that the said amounts were received as gifts from the eledest daughter Mrs.Fariah Rahaman, who is a resident of Manchester, United Kingdom and is employed there. It was explained that funds were remitted from U.K. in pounds to the credit of her SB Account (SB A/c NO. 259) maintained with the same bank as assessee’s ie Bombay Mercantile Cooperative Bank and from there, vide two cheques drawn in assessee’s name, the gifts amounts of Rs. 3,25,000/- and Rs. 44,000/- were transferred to assessee’s bank account. The assessee also produced the bank statements of the donor (i.e Mrs. Fariah Rahaman) together with an affidavit from her stating the factum of gift made by her to her father. The Learned AO doubted the credit worthiness of the daughter (donor) and accordingly brought to tax the credits of Rs. 3,69,000/- as unexplained cash credit u/s 68 of the Act. On first appeal, the Learned CITA on going through the evidences available on record, gave a categorical finding that the source and creditworthiness of the donor is proved and the monies have been transferred through regular banking channels. Accordingly, he deleted the addition made by the Learned AO. Aggrieved, the revenue is in appeal before us on the following ground:- “1. Ld. CIT(A) has erred on facts as well as in law in deleting Rs 3,69,000/- on the claim of the assessee that these were genuine gifts from daughter. “

3.2. The Learned DR vehemently supported the order of the Learned AO.

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3.3. We have heard the Learned DR. We find from the records that the monies have been transferred by daughter Mrs. Fariah Rahman, who is a resident of Manchester, United Kingdom, to her father (assessee herein) as gift which are duly supported by her bank statements and affidavit confirming the gift. The fact that she is a resident of Manchester and employed therein is not in dispute. The affidavit filed by the daughter is also not in dispute. The fact that the monies were transferred by Mrs. Fariah Rahaman from her UK bank account in pound sterlings to her Indian Bank account is not in dispute. It is not the case of the Learned AO that the assessee had channellised his undisclosed income through hawala channels to UK and got it back in the guise of gift from his daughter. In these circumstances, we find no infirmity in the order of the Learned CITA in this regard. Accordingly, the ground no. 1 raised by the revenue is dismissed.

4.1. The brief facts of this issue is that the Learned AO observed that a sum of Rs. 5,70,000/- was credited in the bank account of the assessee. The assessee explained that the said credits represent amount received as loan from his wife Mrs. Chesfida Rahman who in turn had received gift from her mother. The assessee also tried to explain that the assessee’s mother in law , 82 years old lady residing in Kashmir, who was in death bed, sold her property and distributed the sale consideration including the advance received thereon to her daughters and sons. Accordingly, the share pertaining to her daughter (assessee’s wife ) was gifted who in turn gave it as loan to the assessee. The wife of the assessee also filed confirmation for having given the loan and also appeared before the Learned AO and confirmed the same fact. The Learned AO however added the said credit of Rs. 5,70,000/- as unexplained cash credit u/s 68 of the Act. On first appeal, the Learned CITA appreciated the factual contentions of the ITA No. 220/Kol/2013 3 A AM Dr. Anisur Rahman

assessee and deleted the addition. Aggrieved, the revenue is in appeal before us on the following ground:-

“2. Ld. CIT(A) has erred on facts as well as in law in deleting Rs 5,70,000/- on the claim of the assessee that these are sale proceeds gifted to his wife by his mother-in-law. “

4.2. The Learned DR vehemently supported the order of the Learned AO.

4.3. We have heard the Learned DR. We find from the records that the assessee has received Rs. 5,70,000/- as loan from his wife Mrs. Chasfida Rahman. The assessee also explained that his wife had received gift from her mother. It was also explained that her mother who was 82 years old and lying in death bed , sold her property and gave the share attributable to the assessee’s wife. Hence it was proved that out of income of mother in law of assessee, she has gifted the same to her daughter (assessee’s wife) . It is a common practice in any family to distribute the assets to the children which includes out of sale of property to avoid any legal disputes and to maintain the harmony of the family. In the instant case, we find that the assessee has proved source of source. Moreover, the wife of the assessee had even appeared before the Learned AO and confirmed the fact of advancing loan to the assessee. In these circumstances, we find that the Learned CITA had rightly deleted the said addition and we find no infirmity in his order in this regard. Accordingly, the ground no.2 raised by the revenue is dismissed.

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5.1. The brief facts of this issue is that the Learned AO observed that a sum of Rs. 4,50,000/- was found credited in HSBC bank account of the assessee , the source for which was explained to be funds transferred from assessee’s own bank account maintained with Bombay Mercantile Cooperative Bank . According to Learned AO, the bank account maintained with Bombay Mercantile Cooperative Bank by the assessee was not disclosed in the balance sheet filed along with the original return of income. The Learned AO disbelieved the same and brought to tax a sum of Rs. 4,50,000/- as unexplained cash credit u/s 68 of the Act. On first appeal, the Learned CIT(A) deleted the said addition. Aggrieved, the revenue is in appeal before us on the following ground:- “3. Ld. CIT(A) has erred on facts as well as in law in deleting Rs 4,50,000/- on the mere argument by the assessee that they are inter- banking transactions.”

5.2. The Learned DR vehemently supported the order of the Learned AO.

5.3. We have heard the Learned DR. We find from the records that the assessee has merely transferred certain amounts from his Bombay Mercantile Cooperative Bank account to his HSBC account. We find that the Learned AO had almost added all the credits in the bank account maintained with Bombay Mercantile Cooperative Bank account of the assessee. Having said so, he ought not to have held that the said bank account is not disclosed by the assessee for the purpose of making this addition of Rs. 4,50,000/-. Even otherwise, the various credits that were otherwise added as income in previous grounds itself, would act as a source for making this fund transfer to HSBC account . Ultimately, it is only a question of fund transfer from one bank account (i.e Bombay Mercantile Cooperative Bank) to HSBC Bank account. There is no question of any element of income involved therein. The source is explained by the Learned AO himself and hence it does not become unexplained. Hence the provisions of section 68 of the Act cannot be applied to the facts of the instant case. In these circumstances, we find that the Learned CITA had rightly deleted the said addition and ITA No. 220/Kol/2013 5 A AM Dr. Anisur Rahman

we find no infirmity in his order in this regard. Accordingly, the ground no.3 raised by the revenue is dismissed.

6.1. The brief facts of this issue is that there were certain credits in the bank account to the tune of Rs. 6,89,410.57 . The assessee explained that the same represents sale proceeds arising out of his trading business and six transactions were made during the year under appeal and income from such business were offered u/s 44AF of the Act. The Learned AO however brought the said credit to tax as unexplained cash credit u/s 68 of the Act. On first appeal, it was pleaded that the Learned AO having already taxed the profit from business u/s 44AF of the Act, ought not to have again taxed the entire sale proceeds of Rs. 6,89,410.57. The Learned CIT(A) deleted the addition made in this regard. Aggrieved, the revenue is in appeal before us on the following ground:-

“4. Ld. CIT(A) has erred on facts as well as in law in deleting Rs 6,89,410/- merely reasoning that the money are trade receipts.

6.2. The Learned DR vehemently supported the order of the Learned AO.

6.3. We have heard the Learned DR. It is not in dispute that the credits in the subject mentioned bank account to the tune of Rs. 6,89,410/- represents sale proceeds of trading business for which income is already offered to tax u/s 44AF of the Act. Hence there is no question of treating the said sale proceeds as unexplained cash credit u/s 68 of the Act. Hence we find no infirmity in the order of the Learned CIT(A) in this regard. Accordingly, the ground no. 4 raised by the revenue is dismissed.

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7.1. The brief facts of this issue is that the assessee invested in two mutual funds for Rs. 4,50,000/- each on 18.7.2003 and redeemed the same on 12.2.2004 for Rs. 4,53,487.35 each. The assessee offered short term capital gains in his return of income. When confronted with the query with regard to source for purchase of two mutual funds, the assessee explained that he had received the sums of Rs. 2,00,000/- ; Rs. 3,50,000/- from his wife and Rs. 3,50,000/- from Bombay Mercantile Cooperative Bank which were credited in HSBC Account and from HSBC account, two cheques for Rs. 4,50,000/- each were issued for purchase of mutual funds. This explanation was not found satisfactory by the Learned AO who brought the investment in mutual funds to the tune of Rs. 9,00,000/- to tax as unexplained investment. On first appeal, the Learned CITA appreciated the contentions of the assessee and held that the assessee has duly explained the source for making investments in mutual funds and deleted the addition. Aggrieved, the revenue is in appeal before us on the following ground:- 5. Ld. CIT(A) has erred on facts as well as in law in deleting Rs 9,00,000/- although the assessee could not prove the purchase of Mutual Fund units is made out of disclosed/taxed income.

7.2. The Learned DR vehemently supported the order of the Learned AO.

7.3. We have heard the Learned DR. It is not in dispute that the cheques for purchase of two mutual funds were issued from HSBC bank account of the assessee. The immediate source of credit for issuing these cheques was explained to be funds transferred from Bombay Mercantile Cooperative Bank to the extent of Rs. 3,50,000/- and remaining Rs. 5,50,000/- received from his wife. We find that the Learned AO had already given a finding that Bombay Mercantile Cooperative Bank account is ITA No. 220/Kol/2013 7 A AM Dr. Anisur Rahman

maintained by the assessee while making certain additions that were adjudicated in previous grounds. We also find that assessee had indeed received certain monies as loans from his wife Mrs Chasfida Rahman which were credited in HSBC bank account of the assessee. This issue was adjudicated in previous grounds hereinabove. We find that the assessee had duly explained the source for purchase of mutual funds and had also offered the short term capital gains on redemption of the same which has also been taxed by the Learned AO. In these circumstances, there is no scope for treating the investment in mutual funds of Rs. 9,00,000/- as unexplained . Hence we find no infirmity in the order of the Learned CITA in this regard. Accordingly, the ground no. 5 raised by the revenue is dismissed.

8.1. The brief facts of this issue is that the two minor daughters of the assessee transferred Rs 3,00,000/- (1,50,000 * 2) to the bank account of the assessee from their respective bank accounts. The assessee explained the same before the Learned AO on 23.12.2009. The assessee also produced the bank statements of the two minor daughters before the Learned AO. The Learned AO however not being satisfied brought the credit of Rs. 3,00,000/-in the bank account of the assessee to tax as unexplained cash credit u/s 68 of the Act, which was deleted by the Learned CITA in first appeal. Aggrieved, the revenue is in appeal before us on the following ground:- “6. Ld. CIT(A) has erred on facts as well as in law in deleting Rs 3,00,000/- claimed as gift from minor daughters when the daughters had no income of their own and the-minor daughters' source was not examined.”

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8.2. The Learned DR vehemently supported the order of the Learned AO.

8.3. We have heard the Learned DR. It is not in dispute that the monies were transferred from two minor daughters bank account to the account of the assessee. It is not in dispute that the bank statements of two minor daughters were also produced before the Learned AO. It is not the case of the Learned AO that the assessee had chanellised his undisclosed income in the bank account of the two minor daughters and had received it back in cheques from them. Nothing prevented the Learned AO to enquire about the sources of credits in the bank account of the two minor daughters. In these circumstances, we find that the Learned CITA had rightly deleted the addition made in this regard. Accordingly, the ground no. 6 raised by the revenue is dismissed.

Sd/- Sd/- ( N.V. Vasudevan, Judicial Member ) ( M.Balaganesh, Accountant Member)

Date : 21-03-2016

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Copy of the order forwarded to: 1. The Appellant/Income Tax Officer Ward 55(2) 54/1 Rafi Ahmed Kidwai Road, Kolkata-700 016.

2 The Respondent/ Dr. Anisur Rahman 175 Park St, Kol-17. 3 /The CIT, 4.The CIT(A)

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