Champaben Manilal Modi Family Trust, Ahmedabad V. The Income Tax Officer, Ward-3(3)(1), Ahmedabad

CO 7/AHD/2015

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3309 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 12-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: A C SHAH HEARING CONCLUDED ON
• Keywords: Gift; Additional evidence; Tax effect
• Section: 11

Judgement Text

ITA NO. 3295/AHD/2014 & CO NO. 07/AHD/2015 ASSESSMENT YEAR: 20 05 - 06 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S S GODARA JM] ITA NO. 3295 /AHD/201 4 ASSESSMENT YEAR : 20 05 - 06 INCOME TAX OFFICER , WARD 3(3)(1), AHMEDABAD. .... . .... ..... .. ..... APPELLANT VS. CHAMPABEN MANILAL MODI FAMILY TRUST , ................... RESPONDENT 165, SATYAGRAPH CHHAVNI, RAMDEVNAGAR, SATELLITE, AHMEDABAD 380 015. [PAN: A AATC 3218 N ] C.O. NO. 07 /AHD/201 5 ( IN ITA NO. 3295 /AHD/201 4 ) ASSESSMENT YEAR: 20 05 - 06 CHAMPABEN MANILAL M ODI FAMILY TRUST, .... ................... APPELLANT 165, SATYAGRAPH CHHAVNI, RAMDEVNAGAR, SATELLITE, AHMEDABAD 380 015. [PAN: A AATC 3218 N ] VS. INCOME TAX OFFICER , WARD 3(3)(1), AHMEDABAD. .... . .... ..... .. ..... RESPONDENT APPEARANCES BY V.K. SINGH FOR THE REVENUE A.C. SHAH FOR THE ASSESSEE HEARING CONCLUDED ON: 18 . 12 . 20 1 7 ORDER PRONOUNCED ON : 19 .12 .2017 O R D E R PER PRAMOD KUMAR , AM: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 08.09.2014 , PASSED BY THE L EARNED CIT(A), FOR THE ASSESSMENT YEAR 20 5 - 06 , ON THE FOLLOWING GROUND S : - ITA NO. 3295/AHD/2014 & CO NO. 07/AHD/2015 ASSESSMENT YEAR: 20 05 - 06 PAGE 2 OF 3 1. THE LD. CIT(A) HAS ERRED IN SENDING A GENERAL REQUEST TO THE A.O. FOR A REPORT ON THE SUBMISSION OF THE ASSESSEE WITHOUT SPECIFYING T HE ADDITIONAL EVIDENCES ADMITTED AND THE ISSUES ON WHICH SPECIFIC COMMENTS ARE REQUIRED. 2. THE LD. CIT(A) HAS ERRED IN RELYING ON A REPORT FURNISHED BY THE A.O. WHEN NO SPECIFIC COMMENTS HAVE B E EN SOUGHT FROM THE A.O. AND. WHEN A.O. HAS MERELY STATED TH AT ISSUE MAY BE DECIDED ON MERITS. 3. THE LD. CIT(A) HAS ERRED IN DIRECTING TH E AO TREAT THE INCOME OF RS.5, 93,865/ - AS LONG TERM CAPITAL GAIN. 4. THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE DEMAT ACCOUNT REFLECTED THE SAID TRANSACTION WHEN THE DEMAT ACCOUNT SHOWED THAT THE SHARES WERE REQUESTED FOR DEMAT IN FEBRUARY, 2005 AND SOLD SHORTLY THEREAFTER IN THE NEXT MONTH. 5. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE A . O. HAS GIVEN CATEGORICAL FINDINGS THAT THE ENTIRE PURCHASE TRANSACTIONS WAS STA TED TO BE MADE IN CASH AND THAT THE EVIDENCE TO PROVE THE S O URCE OF MAKE SUCH CASH PAYMENT WAS NOT SUBMITTED. 6. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE A.O. HAS SPECIFICALLY RECORDED THAT OPPORTUNITY WAS PROVIDED TO THE ASSESSEE FOR INSPECTION OF ALL DOCUMENTS RECEIVED FROM INVESTIGATION W ING WHICH WAS NOT AVAILED BY THE ASSESSEE . 7. THE LD. CIT(A) HAS FAILED T O CONSIDER THE VARIOUS FINDINGS GIVEN BY THE A.O. IN HIS ASSESSMENT ORDER. 8. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIO N OF RS .11,887/ - BEING PAYMENT OF COMMISSION FOR ARRANGING THE ACCOMMODATION ENTRY FOR EXEMPTED LONG TERM CAPITAL GAIN. 9. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3,84,000/ - MADE BY A.O. ON ACCOUNT OF GIFTS WHICH WERE NOT EXPLAINED SATISFACTOR ILY. 10. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT ONUS IN THE CASE OF GIFTS IS MUCH MORE THAN LOAN S. 11 . THE LD. CIT(A) HAS FAILED TO CONSIDER THE DECISION BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF DI N ES H BABULAL THAKKER, 341 ITR 632. 12 . THE LD. CIT(A) HAS IGNORED THE FINDINGS OF THE ASSESSING OFFICER THAT MOST OF THE DONORS RESIDE AT THE SINGLE ADDRESS AND EVEN THE AFFIDAVIT PRODUCED BEARS THE SAME TYPESETTING OF THAT THE GENUINENESS OF THESE GIFTS HAVE NOT BEEN PROVED. 13. THE LD. CIT (A) HAS ERRED IN DIRECTING THE A.O. TO TREAT THE BUSINESS I NCOME OF RS.1,31,578/ - AS SHORT TERM CAPITAL GAINS. ITA NO. 3295/AHD/2014 & CO NO. 07/AHD/2015 ASSESSMENT YEAR: 20 05 - 06 PAGE 3 OF 3 14. THE LD. CIT(A) HAS IGNORED THE FACT THAT OPENING AND CLOSING STOCK WERE SHOWN IN THE TRADING ACCOUNT AND THE BALANCE SHEET CLEARLY INDICATI NG THE INTENTION OF ASSESSEE THAT THE SHARES WERE HELD AS STOCK - IN - TRADE. 2. WE HAVE NOTICED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS.10,00,000/ - . IN VIEW OF THIS UNDISPUTED FACT AND IN THE LIGHT OF CBDT CIRCULAR NO.21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE CONSIDERED VIEW THAT THIS APPEAL IS LIABLE TO BE DISMISSED AS WITHDRAWN FOR THE SIMPLE REASON THAT TAX EFFECT INVOLVED IN THE APPEAL IS LESS THAN RS.10,00,000/ - . 3 . IN THE RESULT, APPEAL IS DISMISSED . 4 . COMING TO THE CRO SS OBJECTION FILED BY THE ASSESSEE, A S THE APPEAL ITSELF IS HELD TO BE NON - MAINTAINABLE, THE VERY FOUNDATION OF CROSS OBJECTION CEASES TO HOLD GOOD IN LAW. THE CROSS OBJECTION IS, THEREFORE, ALSO DISMISSED. 5 . IN THE RESULT, APPEAL FILED BY THE REVENUE AN D CROSS OBJECTION FILED BY THE ASSESSEE, BOTH ARE DISMISSED. PRONOUNCED IN THE OPEN COUR T TODAY ON THE 19 TH DAY OF DECEMBER , 201 7. SD/ - SD/ - S S GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: 19 T H DECEMBER , 201 7 . P BN /* COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD