Brief of the Case
In the case ITO Vs. Smt. Mala Gupta the Hon’ble Kolkata ITAT held that slight difference in the name of the person does not mean that it is not the same person provided the genuineness of the transaction is proved.
Facts of the Case
The assessee claimed a sum of Rs.10 lac as receipt shown from sale of personal effect acquired from ancestral property jointly held with her sister. The property from where the personal effects were sold was also sold for a consideration of Rs. 60 lac. On the same day fitting, fixture and furniture as available in that property was also sold to one Shri Bechan Singh for a consideration of Rs.20 lacs that means Rs. 10 lacs share comes to assessee. The assessee claimed this as an exempt being transfer of personal effect as capital asset in view of section 2(14)(ii) of the Act. The AO held that the amount received on sale of personal effect is bogus and treated this receipt of Rs.10 lacs as undisclosed income of the assessee u/s. 68 of the Act.
Contention of the Assessee
The Assessee was not satisfied with the invocation of section 68 by the AO. He contended that Shri Bechan Singh and Bechu Singh are the same person and the sale transaction is genuine on the basis of documents presented by him during the assessment proceedings.
Contention of the Revenue
The Ld. DR of Department relied on the orders of the lower authorities.
Held by CIT(A)
The relevant para of the Ld. CIT(A) order is reproduced as follows:-
“8. After considering the facts and circumstances, I am of the view that there is enough circumstantial evidence to support the appellant’s case. An agreement for sale of fitting, fixtures and furniture was signed on the very date on which agreement for sale of property was signed. The agreement clearly mentioned the items sold are fittings, furniture and fixtures installed/provided in the property. The sale consideration has been received through banking channel. The bank transaction was independently confirmed by the assessing officer. In view of this prima facie material, if assessing officer was not satisfied that the amount received was not on account of sale of furniture and fixture, onus was upon him to bring any material evidence to the contrary. However no strong evidence have been brought on records. True, there is a slight discrepancy in name of the purchaser as mentioned in the agreement and as per the bank record. However the slight difference between ‘Bechu’ and ‘Bechan’ is not of material importance considering the name of father is matching. In all probability ‘Bachu’ and ‘Bechan’ are variations of same person’s name. Also if the said person shifted his premises, the appellant cannot be reasonably expected to keep track in case of such one time, transaction. Enquiry conducted by the investigation wing has failed to locate Sri Bechan Singh but has also not resulted in any positive evidence against the appellant because the inspector has reported that the given address was of a big block having mostly tenants. Under these circumstances, Sri Bechan Singh being one of tenant at earlier point of time cannot be ruled out. In view of those facts, I am of the opinion that there is no evidence to refute the appellant’s claim that the amount of Rs. 10 lacs was received on sale of personal effects being furniture and fixture. The addition in this respect is accordingly deleted.”
Held by ITAT
The Hon’ble Kolkata ITAT held that the undisputed facts are fact that the ancestor property of the appellant measuring 320 sq. yards was sold by agreement dated 01-06-2004. On the same date another agreement was signed with Sri Bechan Singh for sale of fitting, fixture and furniture installed in the said property. Consideration for the same was received by pay order. On making enquiry from bank the transaction was confirmed except to the extent that name of the concerned amount holder was found to be Sri Bechu Singh. We also find from the case records that the assessing officer had received from UCO Bank, Nijamuddin (branch) New Delhi a letter dated 29-11-2007 that name of Sri Bachu Singh’s father was Sri Dal Singhar Singh, which matches with the name of father of Sri Bechan Singh, as mentioned in the sale agreement.
Therefore there is force in argument of the assessee that the slight difference in names does not mean that they are not belonging to the same person. Also the assessee’s statement that furniture and fixture consisted of a large number of antique, bulky and unique pieces which is why their description was not mentioned in the sale agreement also cannot be dismissed summarily. So far as non-production of Sri Bechan Singh is concerned, it has been explained that this was one time transaction with him and they were not in continuous touch. Therefore the assesse was not aware of his current whereabouts. However this should not be held against assessee, since the person genuinely existed as also clear from the bank enquiry made by the AO.
The Hon’ble ITAT is of the view that the assessee is able to prove that the purchaser Bechan Singh is the same person who has purchased the furniture and fixtures consisted of a number of antique, bulky and unique pieces. The genuineness of transaction is not in doubt. Thus, the addition made by the AO was deleted.