TMI Blog2021 (11) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... d the signature as his own but do not remember. CIT(A) observed that lameness of the witness cannot be the reasons to punish the assessee. It is fact on record that there exists Will agreement and the Will and the sale agreement confirming the existence of cash in hand with Late Mrs. Rekha K. Bhansali and subsequent distribution of the cash based on the Will to existing HUF and respective cash deposits in the bank account of the assessee clearly indicates that the assessee has proved the source of cash. It is not expected to bring on record, the genuineness of source of source of a deceased person. The assessee can prove only the source for the credit in its books of account. Therefore, we do not see any reason to interfere with the findings of the Ld. CIT(A) and accordingly grounds raised by the Revenue are dismissed. - ITA No. 501/MUM/2019 - - - Dated:- 25-10-2021 - Shri S. Rifaur Rahman (Accountant Member) And Shri Pavan Kumar Gadale (Judicial Member) For the Revenue : Mr. N.K. Mohnot, DR For the Assessee : Ms. Usha Gaikwad, AR ORDER PER S. RIFAUR RAHMAN, A.M. The present appeal is filed by the Revenue against the order of the Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer treated the copy of Will as bogus and treated the source of cash as nongenuine and made the addition in the hands of assessee as undisclosed cash to the extent of ₹2,53,09,000/-. 4. Aggrieved with the above order, the assessee preferred an appeal before the Ld. CIT(A) and the assessee made detailed submissions before the Ld. CIT(A), for the sake of clarity it is reproduced below: The Ld. A0 has assessed the sum of ₹ 2,53,09,000/- as unaccounted income of the assessee or as undisclosed cash of the assessee, however in the entire income tax act he could not found out any provisions or sections under which these additions can be made. And that really shows his prejudiced attitude towards your appellant. The Cursory reading of assessment order would come to suggest that cash was not belonging to your appellant but the same has come to him from her Aunt Smt. Rekha K Bhansali on her death through will executed by her. The Ld. AO has not stated any reasons to say that second page is not the continuation of will, nobody can whisper like this on this kind of original documents. The Ld. AO further wish to suggest that to whom the executor of the will would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section are not applicable to them as they have submitted the explanation with documentary evidences which are verifiable. On Page 9 of the Assessment Order she states that the last return of Smt. Rekha K Bhansali was filed by the executors of her in form no. ITR-2 in which no details of assets, liabilities, capital account, balance sheet is reflected. And thus genuineness of the transactions cannot be verified from the return filed and AR has also not furnished any other documentary evidence to prove the genuineness and creditworthiness of transaction. Obviously for the person who is dead there cannot be any assests, liabilities, balance sheet etc. As she is no more and upon her death all the assests liabilities etc. has been transferred to the concerned persons designated in her will. The Ld. AO has erroneously stated that there is no capital account in fact that is very much available with the return filed. The income of late Smt. Rekha k Bhansali for the year in which she died was about ₹ 9.93 Lakhs, not only that she was assessed to tax for many years and she was 76 years old at the time of death, now what more than that is needed to prove her creditworthiness. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 160FTD 605 (Mum.), Anandasayanam P. Pillai v. CIT (2017) 54ITR (Trib.) 607 (Mum.) Amaranth ...... The gist of written submission no 2 is as under: It is pertinent to note here that Assessment Order is silent about the provision of income tax act under which the addition is made, which is very vital lapse on the part of the Ld. Assessing Officer, the person who is authorized to administer the income tax law could not make any addition if there is no violation to the provision of income tax law. Admittedly according to the Ld. Assessing officer your appellant HUF has not violated any provision of Income tax law warranting any addition. When the appellant was questioned about this he explained as follows:- Yes there was a cash deposited in to the various bank accounts of the appellant and copies of such bank accounts was duly submitted by the appellant HUF. He further explained that amount has been received on account of WILL executed by her own sister (that is sister of the kartha of the appellant's (HUF) namely Late Smt.Rekha Bhansali who was also assessed to tax. The existence of the executants' of will is not in dispute, however her creditworthiness was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d bequeathed her movable and immovable property/materials through Will dt. 19.04.2012 to Shri. Vishal A. Bhansali, who is the Karta of the HUF M/s Vishal A. Bhansali. The deceased had filed her returns till the date of her death. 6.3 The said amount in question viz. unexplained cash deposit of ₹2,53,09,000/- was received by the appellant as per the terms of the Will dated 19.04.2012 and which the assessee had introduced as capital in his business. The AO doubted the genuinenity of the source of the cash and went ahead to make an addition of ₹ 2,53,09,000/-, but in doing so the AO overlooked the provision/section under which the addition has been made. Mentioning of the particular section under the Income Tax Act, which the assessee has defaulted, is very important to put/fix the onus on the assessee to bring him/her under the legal purview which will be binding on him/her. Be as it may, on-going through the assessment order, the AO has stated that .... hence the amount of ₹ 2,53,09,000/- which was claimed by the assessee as received on account of will of Smt. Rekha Bhansali, is held to be unaccounted income of the assessee a major part of which has been recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the donor (through W) and A. It also does not dispute that the letter in terms of which the initial donation was made to A, who was directed the disbursement of amounts in a particular proportion, which he did. The assessee is also related to A. In these circumstances, the underlined transaction whereby the donor directed amounts to be disbursed by A to specified or named individuals cannot be treated as unnatural. Both the authorities - the Commissioner (Appeals) and the Tribunal took note of these facts and Further noticed that all the gifts were rooted to normal banking transaction: While section 68 certainly enables the Assessing Officer to bring to tax amount which are suspect, in a transaction of the present kind, where the identity and the relationship of the donor are known, the Assessing Officer ought not to have concluded that the transaction by which the assessee received the amount in question was in-genuine. 3. PIT v. Talbros Engineering Ltd (2016) 386ITR 154 (P H) The facts of the case is very simple as spelt out supra, creditworthiness of the executor of will are proved beyond any doubt, moreover no addition could be made u/5.68 of the Income -Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to prove that she had signed the will in his presence.? 3. The appellant prays that the order of the Ld. CIT(A) on the above grounds be set aside and that of the AO be restored. 7. At the time of hearing the Ld. DR in support of grounds of appeal raised by the Revenue she brought to our notice, the findings of the AO in para 3 and submitted that the Will is not properly signed in page 1 and the assessee has not proved the genuineness of the Will and also AO examined the witnesses. She further submitted that no doubt witness has agreed that he has signed the Will but do not remember the details when he has signed the Will and he has not aware whether Late Mrs. Rekha K. Bhansali was alive or passed away at the time of signing of Will. She vehemently argued that the denial of the witness with regard to genuineness of the Will and he does not remember about the Will, it clearly shows that the Will is not genuine and prayed that the addition made by the AO may be sustained. 8. On the other hand, the Ld. AR submitted that he relies on his written submissions and order of Ld. CIT(A). The Ld. AR submitted the following written submission : In continuation of Grounds of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this sale agreement referred above from which money has come back after her death on cancellation of the sale agreement. In view of the above it is respectfully submitted that addition made by the Learned Assessing Officer is without any basis and against the law and principles on natural justice and fair play same is requires to deleted to render the justice. 9. Considered the rival submissions and material on record. We noticed that the AO made an addition based on his observation that the assessee has not proved the genuineness of the Will and also the assessee has not proved that Late Mrs. Rekha K. Bhansali has accumulated cash in hand to the extent of ₹5.07 crores. It is submitted that the assessee has submitted return of income and statement of affairs of Late Mrs. Rekha K. Bhansali and also submitted before the Assessing Officer Will and Agreement dated 04.11.2012 in which Late Mrs. Rekha K. Bhansali has paid total amount of ₹5.06 crores to the seller of the Tea Estate. It clearly indicates that Mrs. Rekha K. Bhansali had the cash in her possession. This evidence was submitted before the Assessing Officer and has not brought on record the same in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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