Shri Sanjaykumar B.Hirpara, Ahmedabad V. The Income tax Officer,Ward-9(1), Ahmedabad

ITA 1338/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1903 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Assessee Lawyers: FAROOK MOKANJIWALA
• Keywords: Gift
• Section: 133(6); 68; 144

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA.NO.1338/AHD/2013 / ASSTT. YEAR: 2008-2009 SANJAYKUMAR B. HIRPARA B-11, SUNGOLD APARTMENT B/H. VIDYANAGAR SCHOOL INDIA COLONY, BAPUNAGAR AHMEDABAD. VS ITO, WARD - 9(1) AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI FAROOK MOKANJIWALA REVENUE BY : SHRI G.C. DAXINI, SR.DR / DATE OF HEARING : 08/04/2016 / DATE OF PRONOUNCEMENT: 11/04/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF THE LD.CIT(A)-XV, AHMEDABAD DATED 18.2.2013 PASSED FOR THE ASSTT.YEAR 2008-09. 2. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH THE RULE 8 OF THE INCOME TAX (APPELLATE TRIBUN AL) RULES, 1963 - THEY ARE ITA NO.1338/AHD/2013 2 DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. IN BRIEF , THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRM ING THE ADDITION OF RS.10.00 LAKHS, WHICH WAS ADDED BY THE AO UNDER SECTION 68 O F THE INCOME TAX ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HIS RETURN OF INCOME ON 20.9.2008 DECLARING TOTAL INCOME AT RS.2, 48,940/-. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF PROVIDING LABOUR ON CONTRACT. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND N OTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE. THE LD.AO HAS OBSERVED THAT IN RESPONSE TO THE NOTICE NO ONE HAS COME PRES ENT ON BEHALF OF THE ASSESSEE. THEREFORE, HE PROCEEDED TO FRAME THE ASS ESSMENT ORDER ACCORDING TO HIS BEST JUDGMENT UNDER SECTION 144 OF THE INCOME T AX ACT. THE LD.AO FOUND THAT THERE IS A CAPITAL CONTRIBUTION OF RS.10 LAKHS DURING THE YEAR. SINCE NO EXPLANATION WAS FILED BY THE ASSESSEE, THE AO TREAT ED THIS INTRODUCTION OF CAPITAL AS UNDISCLOSED INCOME AND MADE ADDITION OF RS.10 LAKHS. APART FROM THE ABOVE, THE LD.AO HAS MADE OTHER ADDITIONS ALSO. THE AO HAS DETERMINED THE TAXABLE INCOME AT RS.34,25,064/-. 4. DISSATISFIED WITH THE ORDER OF THE AO, THE ASSES SEE CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A) HAS CAL LED FOR REMAND REPORT AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. BEFORE US, THE ADDITION OF RS.10 LAKHS CONFIRMED BY THE LD.CIT(A) IS BEING DISPUTED BY THE ASSESSEE. THE STAND OF THE ASSESSEE IS THAT HIS FATHER IS HAVING 40 BIGHAS OF LAND. THIS LAND IS SITUATED IN VILLAGE KHILAVAAD, TAL-UNA, DIST: JU NAGADH. THIS BELT IS KNOWN FOR GROWING COTTON CROP AND GROUND NUTS. HIS FATHE R HAS PRODUCED AGRICULTURE PRODUCE HAVING VALUE OF RS.16 LAKHS. HE HAS GIVEN A GIFT OF RS.10 LAKHS TO THE ASSESSEE, WHICH WAS INTRODUCED AS CAPITAL CONTR IBUTION FOR ESTABLISHING THE ITA NO.1338/AHD/2013 3 BUSINESS. THE ASSESSEE HAS FILED COPY OF FORM NO.7 /12 IN SUPPORT OF HIS CONTENTIONS. THE CONTENTIONS OF THE ASSESSEE WAS R EJECTED BY THE CIT(A) ON THE GROUND THAT CONFIRMATION FROM THE FATHER WAS NO T FILED BY THE ASSESSEE. BEFORE US, SHRI HARSHAD J. THAKKAR, CA APPLIED FOR ADJOURNMENT AND SHRI FAROOK MOKANJIWALA, ADVOCATE APPEARED ON HIS BEHALF , BUT WAS NOT HOLDING ANY POWER OF ATTORNEY FROM SHRI HARSHAD J. THAKKAR. SHRI HARSHAD J. THAKKAR HAS ALSO NOT FILED POWER OF ATTORNEY. THER EFORE, WE DO NOT GRANT ADJOURNMENT TO THE ASSESSEE, AND PROCEED TO DECIDE THE APPEAL ON MERIT WITH THE ASSISTANCE OF THE LD.DR. 5. ON AN ANALYSIS OF THE RECORD, WE ARE OF THE VIE W THAT PROCEEDING BEFORE THE AO WERE EX PARTE . BEFORE, THE LD.CIT(A), THE ASSESSEE HAS FILED AD DITIONAL EVIDENCE, AND THE LD.CIT(A) HAS CALLED FOR REMAND R EPORT. THE ASSESSEE HAS FILED A COPY OF ELECTION CARD IN ORDER TO PROVE IDE NTITY OF HIS FATHER. HE HAS FILED COPY OF THE REVENUE RECORD IN FORM NO.7/12 EX HIBITING THAT HIS FATHER, SHRI BHAGWANBAHI HASMATHBHAI HIRPARA WAS HAVING 40 BIGHAS OF LAND. THOUGH THE LD.CIT(A) HAS CALLED FOR REMAND REPORT, BUT THE REVENUE AUTHORITIES HAVE FAILED TO VERIFY THE CONTENTIONS O F THE ASSESSEE. THE LD.CIT(A) HAS REJECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT CONFIRMATION FROM THE FATHER WAS NOT FILED. TO OUR MIND, THIS COULD HAVE VERIFIED BY THE AO DIRECTLY BY CALLING FATHER OF TH E ASSESSEE OR BY SENDING SUMMONS UNDER SECTIONS 133(6) OF THE INCOME TAX ACT . THE POSSIBILITY OF GENERATION OF INCOME AT RS.10 LAKHS FROM 40 BIGHAS OF LAND CANNOT BE RULED OUT. THEREFORE, FOR A LIMITED PURPOSE, WE SET ASID E THIS ISSUE TO THE FILE OF THE AO FOR RE-VERIFICATION AND RE-ADJUDICATION. THE AS SESSEE WILL BE AT LIBERTY TO SUBMIT CONFIRMATION FROM HIS FATHER IN SUPPORT OF H IS CLAIM. THE LD.AO SHALL VERIFY THE CLAIM OF AGRICULTURE INCOME, AND THEREAF TER DECIDE THE ISSUE IN ITA NO.1338/AHD/2013 4 ACCORDANCE WITH LAW. IN VIEW OF THE ABOVE, THE APP EAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 11 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER