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TMI Blog2017 (6) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 were filed before the CIT(A) as part of which have been reproduced in page 4 of the impugned order while considering the first ground it is also seen that it is accompanied by an affidavit of Smt. Santosh Devi, W/o-Late Sh. Dwarka Das, Aged 65 years and R/o-1/5265. Balbir Nagar, Shahdara, Delhi-110032 affirming the fact that ornament weight 440 grams was gifted by her to her son-in-law on 10.02.1989 i.e. date of his marriage anniversary. The said affidavit is dated, attested and notarized on 25.03.2013. There is nothing on record to rebut the fact that the specific jewellery was not sold to M/s Gupta Jewellers P.Ltd. whose M.D. as per the claim of the assessee itself was produced for cross-verification before the AO. This assertion of fact in the assessment order also stands unrebutted. In these circumstances, find no justification for denial of assessee’s claim. Being satisfied by the consistent explanation offered and supported by affidavit of the donor on record alongwith copy of the Bill of M/s Gupta Jewellers Pvt. Ltd. through whom the jewellery was sold, I find that the addition on facts has wrongly been made and sustained. Accordingly, the addition is directed to be dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id concern came back unserved on 06.03.2013 with the comment always locked . It was submitted by the Ld.AR that the assessee cannot be held answerable in 2013 if the office of D.U. Securities Pvt. Ltd. is locked. Referring to the evidence on record, it was submitted that admittedly the receipt of money from the said concern is not handed over in cash. Inviting attention to the copy of the bank account, it was submitted the amount has been repaid by way of an RTGS. In the circumstances, the act of making and subsequently sustaining the addition in the hands of the assessee in the face of the evidence on record, it was submitted does not arise. 4. The Ld. Sr.DR relying on the orders submitted that the said concern was not in existence and this is a fact on record where the attempts made by the tax authorities were not successful as the premises were always found locked, this fact has been confronted to the assessee. Accordingly, it was his submission that these facts raised a presumption that all was not well with the explanation filed by the assessee. Hence, the addition made, it was submitted deserves to be sustained. 5. The Ld. AR re-iterated that the amount has been paid b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotted the money was returned. The AO as per record attempted to verify this from M/s D.U. Securities Pvt.Ltd. and found that the office of the said concern was always locked. After confronting the fact to the assessee, addition was made by the AO. The CIT(A) sustained the addition holding that the transaction has not been confirmed by the said concern. A perusal of page 5 of the assessment order brings out the fact that as per report of the ITI (Inspector of Income Tax) i.e. dated 18.03.2013 it has been reported that Room No. 203 was found to be always locked . Based on this fact, it has been consistently concluded that its affairs were not in order. I find there is nothing on record to show that the party was not in existence. The recordings made in the third partly documents namely entries in the bank pass book of the assessee demonstrate that funds flowed towards the said concern from the specific bank account in 2008 and returned to it again through the banking channels in 23.03.2010. These admitted facts have not been rebutted by the Revenue. The fact that its office was found to be consistently locked in 18.03.2013 can be explained from the following extract of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts stand proved from the record as admitted by both the parties. There is admittedly no connection between the said concern and the assessee nor any control exercised by the assessee on the said concern as the transaction is at arms length. Hence, the occasion to verify the reasons and causes why the said concern was having its office locked up after a few years is not a relevant issue for adjudicating whether the amount flowed back from the said concern to the assessee again through the banking channels was adequately explained or not. The Revenue has nowhere doubted the fact that the funds flew towards the said concern through the very same bank account of the assessee. Thus I find that the occasion to consider and ponder on the issue why its premises after a few years were found to be locked is not a relevant issue for the purposes of the present case. As noted the third party evidence showing flow of money to the said concern by way of the Bank statement of the assessee and again the flow back by RTGS from M/s D.U. Securities Pvt. Ltd. to the very same bank account where existence of M/s D.U Securities Pvt. Ltd. is not in doubt and the consistent unrebutted explanation that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the issue was challenged in appeal before the CIT(A) and even the Ld. Commissioner has not proceeded on the basis of the surrender. Thus, on facts it was his submission that the addition was wrongly made. 10. Considering the submissions of the parties, I find that the argument of the Ld.Sr.DR that the amount was surrendered by the assessee on facts cannot be accepted. The law requires that the return of income has to be signed by the assessee. Even if the tax payer is illiterate even then the return of income cannot be signed by his counsel and it is the thumb impression of the tax payer which makes it a legitimate return of a tax payer s income. Similarly the position in regard to the raising of grounds either before the CIT(A), ITAT or for that matter any higher forum are concerned the law necessitates nay mandates that the grounds raised are to be signed by the assessee and assessee alone and cannot be signed by his counsel. Even in case of a tax payer s illiteracy, it is the assessee s thumb impression which authenticates the grounds. Thus, surrender, if any has to be acknowledged/accepted by the assessee. A counsel entrusted to argue and represent a taxpayer no doubt may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.AR offered to surrender the amount, I find that the argument has been objected to by the Ld.AR on the ground that it is of no relevance in view of the fact that (a) the offer if any was made without the consent of the assessee; (b) even if for a moment it is considered that it was made by the Counsel then the offer being negotiated would have been that the amount may be taxed as unexplained but do not levy penalty and thus since penalty has been levied as is evident from para 3.5 of the assessment order; and (c) even if there was any offer made it was not accepted by the Assessing Officer. I find that in the peculiar facts and circumstances, the said argument of the Ld.Sr.DR is without merit because although the assessment order records that the Ld.AR offered to surrender the glaring fact which stands out on record is that the presence of the mother-in-law of the assessee as per the Assessing Officer s own version was directed for the first and the only time on 25.03.3013. The relevant extract is reproduced hereunder:- .. The assessee vide order sheet entry dated 25.03.2013 was required to produce the above noted donor (Mrs. Santosh Devi) for verification, in person an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it is also seen that it is accompanied by an affidavit of Smt. Santosh Devi, W/o-Late Sh. Dwarka Das, Aged 65 years and R/o-1/5265. Balbir Nagar, Shahdara, Delhi-110032 affirming the fact that ornament weight 440 grams was gifted by her to her son-in-law on 10.02.1989 i.e. date of his marriage anniversary. The said affidavit is dated, attested and notarized on 25.03.2013. There is nothing on record to rebut the fact that the specific jewellery was not sold to M/s Gupta Jewellers P.Ltd. whose M.D. as per the claim of the assessee itself was produced for cross-verification before the AO. This assertion of fact in the assessment order also stands unrebutted. In these circumstances, I find no justification for denial of assessee s claim. Being satisfied by the consistent explanation offered and supported by affidavit of the donor on record alongwith copy of the Bill of M/s Gupta Jewellers Pvt. Ltd. through whom the jewellery was sold, I find that the addition on facts has wrongly been made and sustained. Accordingly, the addition is directed to be deleted. 11. In the result, the appeal of the assessee is allowed. The order is pronounced in the open court on 17th of January, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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