Shri Nimesh Rasiklal Patel, Kadi V. The Assistant Commissioner of Income tax,Cir. 1(4), Ahmedabad

ITA 1426/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0563 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-08-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 14-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAKESH MEENA
• Assessee Lawyers: SHRIN P M MEHTA
• Keywords: Gift
• Section: 143(3); 142(1); 56(2); 153A; 56; 263; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1426/AHD/2013 (ASSESSMENT YEAR: 2005-06) SHRI NIMESH RASIKLAL PATEL 28, GAUTAMNAGAR CO. OP. HOUSING-SOCIETY. LTD., DETROJ ROAD, MERAR RAMJI MANDIR, KADI- 382715 V/S ACIT CENTRAL CIRCLE-1(4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AHYPP5460G APPELLANT BY : SHRIN P.M. MEHTA, A.R. RESPONDENT BY : SHRI RAKESH MEENA, SR. D.R. ( )/ ORDER DATE OF HEARING : 23 -08-201 6 DATE OF PRONOUNCEMENT : 16-09-2016 PER MAHAVIR PRASAD, JUDICIAL MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF LD. CIT (CENTRAL)-I, AHMEDABAD DATED 25.03.2013 PERTAINING TO A.Y. 2005-06 AND ASSESSEE HAS TAKEN FOLLOWING GROUNDS:- ITA NO . 142 6/AHD/2013 . A.Y. 2005-0 6 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT ERRED IN ASSUMING HIS JURISDICTION U/S.263 OF THE IT. ACT, WHEREAS TH E MANDATORY CONDITIONS FOR ASSUMING SUCH JURISDICTION ARE TOTALLY ABSENT, WITH THE RESU LT THAT THE IMPUGNED ORDER PASSED U/S.263 IS BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT ERRED IN ARRIVING AT A CONCLUSION WITHOUT ANY BASIS WHATSOEVER TO THE EF FECT THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS AS WE LL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT ERRED IN SETTING ASIDE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON 21 TH DECEMBER, 2010 U/S.143(3) R.W.S. 153A OF THE IT. ACT BY DIRECTING THE ASSESSING OFFICER TO MODIFY THE ASSESSMENT ORDER AFTER MAKING APPROPRIATE ENQUIRY I N RESPECT OF GIFTS RECEIVED BY THE APPELLANT FOR RS 8,66,612. 2. THE FACTS OF THE CASE ARE THAT THE CASES WITH REGAR D TO PASSING OF THE IMPUGNED ORDER U/S. 263 BY THE LD. CIT(CENTRAL)-I, AHMEDABAD ARE THAT THE ORIGINAL ASSESSMENT WAS MADE BY THE ACIT, CENTRAL CIRCLE- 1(4), AHMEDABAD AFTER THOROUGH SCRUTINY U/S. 143(3) R.W.S. 153A OF THE INCOME TAX ACT VIDE HIS ORDER DATED 21.12.2010 DETERMINING TOTAL INCOME OF RS. 2,79,260/- IN ACCORDANCE WITH THE RET URN OF INCOME. SUBSEQUENTLY, THE LD. CIT(A) ISSUED A NOTICE U/S. 2 63 DATED 13.03.2013 AND FOLLOWING ARE THE RELEVANT EXTRACT. 3. ON VERIFICATION RECORD, IT WAS SEEN THAT ASSESSEE H AS RECEIVED GIFT OF RS. 8,66,612/- FROM THE FOLLOWING FOR A.Y. 2005-06 :- '3 ON VERIFICATION OF RECORDS IT IS SEEN THAT YOU HAVE STATED TO HAVE RECEIVED GI FT OF RS. 8,66,612/- FROM THE FOLLOWING FOR A.Y. 2005- 06 RS. 1,50,000/- FROM JIVIBEN PATEL(MASI) RS. 1,00,000/- FROM SHITANSHUBHAI PATEL (BROTHER-IN -LAW) RS. 2,00,000/- FROM CHANDUBHAI PATEL (MASA) RS. 2,41,6121- FROM SHITANSHUBHAI PATEL (COUSIN) RS. 1.75.000/- FROM SHAILESHBHAI PATEL (COUSIN) ITA NO . 142 6/AHD/2013 . A.Y. 2005-0 6 3 THE ABOVE GIFTS ARE NOT CONSIDERED GENUINE SINCE IN THE GIFT DECLARATION FILED BY YOU RELATION MENTIONED ARE CONTRADICTORY TO YOUR SU BMISSIONS. IT IS NOT CLEAR IF SHAILESBHAI IS COUSIN OR BROTHER SHAILESBHAI PATEL IS NOT LINEAL ASCENDANT DESCENDANT OF THE INDIVIDUAL, ENCE THE GIFT RECEIVE D FROM THE ABOVE PERSON IS NOT COVERED UNDER EXPLANATION FOR THE PURPOSES OF CLAUS E 'RELATIVE' SECTION 56 PROVIDES EXPLANATION IN RESPECT OF GIFT WHICH READS AS UNDER; (G) EXPLANATION: FOR THE PURPOSE OF THIS CLAUSE, RE LATIVE MEANS (XVI) SPOUSE OF THE INDIVIDUAL (XVII) BROTHER OR SISTER OF THE INDIVIDUAL (XVIII) BROTHER OR SISTER OF THE SPOUSE OF THE INDI VIDUAL (XIX) BROTHER OR SISTER OF EITHER OF THE PARENTS OF THE INDIVIDUAL (XX) ANY LINEAL ASCENDANT OR DESCENDANT OF THE INDI VIDUAL THEREFORE, THE ASSESSMENT MADE U/S 143(3) R.W.S. 15 3A OF THE ACT IS, THEREFORE, CONSIDERED TO BE ERRONEOUS AND PREJUDICIAL TO THE I NTEREST OF REVENUE. SINCE THE ABOVE ISSUES HAVE ESCAPED THE ATTENTION OF THE ASSE SSING OFFICER, THE CASE REQUIRES REVISION U/S 263 OF THE I.T. ACT. 4. ACCORDINGLY, THEREFORE, THE ASSESSMENT MADE U/S. 14 3(3) R.W.S. 153A OF THE ACT WAS CONSIDERED TO BE ERRONEOUS AND PREJU DICIAL TO THE INTEREST OF REVENUE. SINCE THE ABOVE ISSUE HAD ESCA PED THE ATTENTION OF THE ASSESSING OFFICER, THE CASE REQUIRED REVISIO N U/S. 263 OF THE ACT. 5. IN RESPONSE TO THE ABOVE NOTICE, THE APPELLANT STAT ED THAT DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS U/S. 153A, THE ASSESSING OFFICER HAD MADE PROVING INQUIRIES REGARD ING RECEIVED BY THE APPELLANT FOR WHICH NOTICE WAS ISSUED U/S. 142(1) O N 01/01/2010. IT WAS SUBMITTED THAT AGAINST THE AFORESAID NOTICE, AP PELLANT FILED A DETAILED REPLY VIDE LETTER DATED 28/05/2010 AND ALS O STATED THAT U/S. 263 CANNOT BE INVOKED FOR DIRECTING THE ASSESSING O FFICER TO RE- ITA NO . 142 6/AHD/2013 . A.Y. 2005-0 6 4 EXAMINE THE ISSUE WHICH HAS ALREADY BEEN CONSIDERED IN DETAIL AND ASSESSEE SUBMITTED A LEDGER ACCOUNT PRIOR TO SEPTEM BER 2004 AND ALSO FILED A LETTER DATED 28/05/2010 STATING THAT THE SA ME IS COVERED BY EXCEPTION OF SECTION 56(2) OF THE INCOME TAX ACT. 6. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER IN SEVERAL DECISIONS OF THE SUPERIOR COURT IT HAS BEEN HELD THAT WHERE APPELLANT HAD PRODUCED RELEVANT MATERIAL AND OFFERE D EXPLANATION IN PURSUANT TO THE NOTICES ISSUED U/S. 142(1) AS WELL AS SECTION 143(2) OF THE ACT AND AFTER CONSIDERING THE MATERIAL AND EXPL ANATION, THE ITO HAD COME TO A DEFINITE CONCLUSION AND WHERE MATERI AL WAS THERE ON RECORD AND THE SAID MATERIAL WAS CONSIDERED BY THE ASSESSING OFFICER AND A PARTICULAR VIEW WAS TAKEN, THE MERE FACT THAT THE DIFFERENT VIEW CAN BE TAKEN SHOULD NOT BE THE BASIS FOR AN ACTION U/S. 263 AND RELIANCE WAS ALSO PLACED ON THE ALLAHABAD HIGH COUR T IN THE CASE OF CIT VS. MAHENDRAKUMAR BANSAL 297 ITR 99 WHEREIN IT HAS BEEN HELD THAT MERELY BECAUSE THE ITO HAD NOT WRITTEN A LENGTHY OR DER IT WOULD NOT ESTABLISH WITHOUT BRINGING ON RECORD SPECIFIC INSTA NCES THAT THE ASSESSMENT ORDER PASSED U/S. 143(3) IS ERRONEOUS AN D PREJUDICIAL TO THE INTEREST OF THE REVENUE AND APPELLANT STRONGLY RELIED ON THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GABRIAL IN DIAN LTD. 203 ITR 188. IN THIS CASE, IT WAS HELD THAT IF THE ASSESSIN G OFFICER HAS RAISED QUERIES AND THE APPELLANT HAD FILED WRITTEN SUBMISS IONS/EXPLANATION, MERELY BECAUSE THERE IS NO DISCUSSION IN THE ASSESS ING OFFICERS ORDER ON THE RELEVANT ISSUE, IT CANNOT BE SAID THAT SUCH ORDER BECOMES ERRONEOUS. SIMILAR VIEW HAS BEEN TAKEN BY THE RAJAS THAN HIGH COURT IN THE CASE OF CIT VS. GANPAT RAM BISHNOI 296 ITR 292. ITA NO . 142 6/AHD/2013 . A.Y. 2005-0 6 5 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 16 - 09- 20 16. SD/- SD/- (PRAMOD KUMAR) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD