ASHOK G. PUNJABI ( HUF),MUMBAI vs. ITO 19(3)(1), MUMBAI

O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by the assessee against the order of CIT(A), Mumbai, for the assessment year 2006-2007, in the matter of order passed u/s.143(3) of the I.T.Act on the following grounds :-

2. On the facts and circumstances of the case the learned CIT CA) erred in confirming the addition of Loan of Rs.5,00,000/-, being Unsecured Loan taken from M/s. Akshayraj Builders, as an unexplained Cash Credit u/s 68.

3. On the facts and circumstances of the case the learned CIT CA) erred in confirming the addition of Rs.22,22,000/- a Sale Proceeds received from the Brokers Mls Anagrma Securities Ltd. and Anagram Stock Broking Limited as unexplained Cash Credit u/s 68 without considering the cost paid for purchase of Shares.

4. Without Prejudice to Ground 3 above, On the facts and circumstances of the case the learned CIT CA) erred in confirming the double addition of the same amount of Rs.15,00,000/-, being Cash deposited in bank and the payment to the Broker from the said amount.” 2. Rival contentions have been heard and record perused. Facts in brief are the assessee is a senior citizen filed its return of income at Rs.1,98,110/- on 3-5-2006. The return was processed u/s.143(1), subsequently case was selected for scrutiny by issue of notice u/s.143(2). During the course of assessment the AO found that assessee has credited an amount of Rs.42,90,960/- to its capital account, which was received by assessee from mother on her death. As per the Will so executed assessee received jewellery worth of Rs.27,90,960/- and cash of Rs.15,000/-. During the remand proceedings the assessee-karta had given entire details about the credit and same was also reproduced by the AO in para 4.2 at page 8 of his remand report. To verify the genuineness of the jewellery the AO also called confirmation from the registered valuer of the alleged jewellery. The AO also recorded statement of the assessee but did not accept the acquisition of the jewellery by way of a Will on the plea that will was not on the stamp paper and not registered. Accordingly, addition was made. 3. Ld. AR relied on the decision of coordinate bench in the case of Budh Kishore, 87 TTJ 140, wherein it was held that amount received through Will cannot be taxed on conjectures and surmises alleging that the Will is not on a stamp paper, there are no witnesses and merely bears thumb impression etc. He further contended that the AO had sent 3 summons to the valuer of jewellery M/s L. Sunderdas, who had confirmed that jewellery was valued by them, however, the AO has made addition of entire jewellery and not for the proceeds received from the sale of jewellery. The AO has doubted the genuineness of WILL with a remark that it is prepared on a small piece of paper and is not registered. In this case the AO failed to appreciate that the WILL is self hand written by late Smt. Shantidevi and it is a Holograph WILL. The Courts have consistently held that in case of Holograph WILL it is a valid WILL even if it is not witnessed by anyone. However in this case the WILL was witnessed by her daughter Mrs.K G. Bijlani.

4. As per our considered view there is no law that Will should be on a stamp paper or should be compulsorily registered. There is no standard format of Will and it is a person’s own free wish and will to draft his Will. Unless challenged by any person, authenticity of Will cannot be called. We had gone through the Will which has been duly signed, dated and witnessed by daughter of mother executing the Will. Nothing was brought on record by the AO doubting the authenticity of the Will. The learned AO and CIT(A) failed to appreciate that there is no law requiring compulsory registration of WILL and payment of any Stamp Duty thereon. Also there is no requirement as per law that the WILL should be typed written and not the hand written. The WILL is also witnessed by her daughter Mrs. K G. Bijlani and duly singed by late Smt. Shanti G. Punjabi. Hence the WILL of Smt. Shanti G. Punjabi is genuine and cannot be ignored by the AO and CIT(A) without brining any cogent material on record. Under these 4 circumstances, we are inclined to restore the matter back to the file of AO for deciding afresh after giving due opportunity of hearing to the assessee.

5. The AO has also made addition of Rs.22.22 lacs received from M/s Anagram Securities. In this connection it ii submitted that during-the course of remand proceedings the ledger account of Brokers were submitted and the summary as per ledger account is as under; Name of the Broker Amount Amount paid Received Anagram Securities Ltd. 18,55,072/ - 13,63,416/ - Anagram Stock Braking Ltd. 6,19,387/- 14,00,000/ - TOTAL 24,74,459/- 27,63,416/- From the above table it is clear that during the year the appellant had paid a sum of Rs.27,63,416/- and had received a sum of Rs.24,74,459/-. The ledger accounts of broker were also submitted to the AO however while finalizing the assessment the AO did not make any mention about the same and made addition. Thus, instead of brining to tax net, the capital gain received on sale of securities, the AO has made addition on entire sales proceeds received from M/s Anagram Securities Ltd. without giving credit of the payment so made.

6. We also found that the AO has already made addition with regard to the amount deposited in the bank account for issue of cheque, therefore, disallowing the payment so made to M/s Anagram Securities Ltd. will amount to double addition of the same source of income, which have already been taxed. In the interest of justice, this issue is also restored back to the file of AO for deciding afresh after considering the 5 ITA No.6629/11 documentary evidence placed on record with regard to deposit of money in the bank account.

Sd/- Sd/- (AMIT SHUKLA) (R.C.SHARMA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER भुंफई Mumbai; ददनांक Dated 04/03/2016 प्र.कु.मभ/pkm, नन.स/ PS आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीराथी / The Appellant 1. प्रत्मथी / The Respondent. 2. आमकय आमुक्त(अऩीर) / The CIT(A), Mumbai. 3. आमकय आमुक्त / CIT 4. ववबागीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai 5. गार्ा पाईर / Guard file. 6. सत्मावऩत प्रनत //True Copy// आदेशाि सार/ BY ORDER,