Shri Shital Prasad Jaiswal, Kolkata V. I.T.O Wd - 37(2),kolkata., Kolkata

ITA 1746/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91939 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 04-06-2013
• Court: TRIBUNAL
• Department Lawyers: SANJAY SR DR
• Assessee Lawyers: S M SURANA
• Keywords: Gift
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA [BEFORE HON BLE SHRI B.P.JAIN, AM] I.T.A NO.1746 /KOL/2013 ASSESSMENT YEAR: 2006 - 07 SHRI SHITAL PRASAD JAISWAL VS I.T.O., WARD - 37(2) KOLKATA . KOLKATA (APPELLANT) ( RE SPONDENT) (PAN: ACOPJ 2492 B) FOR THE APPELLANT : SHRI S.M.SURANA, ADVOCATE FOR THE RESPONDENT : SHRI SANJAY, SR.DR, ADDL. C.I.T. DATE OF HEARING : 04 .06 .2015. DATE OF PRONOUNCEMENT: 04 .06 .2015. ORDER PER SHRI B.P.JAIN, AM : THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD.CIT(A) - XX IV , KOLKATA DATED 05.12.2012 FOR ASSESSMENT YEAR 2006 - 07. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT THE ORDER OF THE LD.CIT(A) IS ARBITRARY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.4,00,000/ - UNDER SEC.56(2)(V)/56(2)(VI) BEING THE GIFT RECEIVED FROM THE KARTA OF THE HUF SHYAMLAL SHAW BEING THE FATHER OF THE APPELLANT AND RELATIVE WITHIN THE MEANING OF THE P ROVISIONS OF THE ACT AND AS SUCH THE SAME CANNOT BE TREATED AS INCOME UNDER THE PROVISIONS OF SEC.56(2). 3. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) MAY BE DELETED. 4. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE CIT(A) BE MODIFIED AND THE ASSESSEE BE GIVEN THE RELIEF PRAYED FOR. 5. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM THE AO S ORDER ARE REPRODUCED HEREIN BELOW FOR THE SAKE OF CONVENIENCE : - THE RETURN OF INCOME WAS FILED FOR THE ASSESSMENT YEAR 2006 - 07 RELATING TO FINANCIAL YEAR 2005 - 06 ON 21.11 .2006, SHOWING TOTAL INCOME OF R S.1,06,360/ - . THE RE TURN WAS ASSESSED U/S 143(3) ON 26.11.2008. SUBSEQUENTLY, IT WAS DETECTED THAT THE ASSESSEE HAS TAKEN LOAN MR.SHYAMLAL SHAW, THE KARTA OF H.U.F. OF RS.4,00,000/ - WHICH IS NOT QUALIFIED FOR EXEMPTION U/S 56(2)(VI). ACCORDINGLY, NOTICES U/S 148, U/S 142(1) W ERE ITA NO. 1746/KOL/2013 SH RI SHITAL PRASAD JAISWAL A.YR. 2006 - 07 2 SERVED UPON THE ASSESSEE. BUT NEITHER THE ASSESSEE NOR THE A/R OF THE ASSESSEE APPEARED. THEREFORE, IT IS BEING TREATED THAT THE ASSESSEE HAS NO OBJECTION AGAINST THE PROPOSED ADDITION AND HENCE ADDED BACK WITH THE TOTAL INCOME OF THE ASSESSEE. THE L D. CIT(A) CONFIRMED THE ACTION OF AO. 4. THE LD. COUNSEL FOR THE ASSESSEE SHRI S.M.SURANA, ADVOCATE ARGUED THAT THE ISSUE IS COVERED BY THE DECISION OF KOLKATA BENCH IN THE CASE OF ITO VS NIDHI GOENKA (PODDAR) IN ITA NO.1542/KOL/2009 DATED 21 ST OCTOBER, 2009 AND IN THE CASE OF VINEETKUMAR RAGHAVJIBHAI BHALODIA VS ITO RAJKOT TRIBUNAL 140 TTJ 0058, AND IN THE CASE OF HARSHADBHAI DAHYALAL VAIDHYA (HUF) VS ITO 155 TTJ 0071 AHMEDABA D TRIBUNAL WHERE IT HAS BEEN HE LD THAT ANY GIFT GIVEN BY THE KARTA OUT OF THE F UNDS OF HUF IS COVERED U/S 56(2)(VI) OF THE ACT. 5. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. I AM CONVINCED WITH THE ARGUMENTS OF THE LD. COUNSE L SHRI S.M.SURANA THAT THE ISUSE IS COVERED BY THE DECISION OF KOLKATA BENCHES IN THE CASE OF ITO VS NIDHI GOPENKA (SUPRA), VINEETKUMAR RAGHAVJIBHAI BHALODIA VS ITO (SUPRA) OF RAJKOT ITAT AND HARSHADBHAI DAHYALAL VAIDHYA (HUF) VS ITO (SUPRA) OF AHMEDABAD BENCH THAT ANY GIFT RECEIVED BY THE ASSESSEE FROM HUF IS COVERED BY THE PROVISIONS OF SECTION 56(2)(VI) OF THE ACT READ WITH EXPLANATION. THEREFORE, IN THE CIRCUMSTANCES AND FACTS OF THE CASE , AO IS NOT JUSTIFIE D IN TREATING THE SAME AS INCOME OF THE ASSES SEE AND ACCORDINGLY ORDER OF THE LD. CIT(A) IS REVERSED. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDE R PRONOUNCED IN THE OPEN COURT ON 04 .06 .2015. [ B.P.JAIN ] ACCOUNTANT MEMBER DATE: 04 .06 .2015. R.G.(.P.S.) ITA NO. 1746/KOL/2013 SH RI SHITAL PRASAD JAISWAL A.YR. 2006 - 07 3 C OPY OF THE ORDER FORWARDED TO: 1 . SHRI SHITAL PRASAD JAISWAL, 59J, GARPAR ROAD, KOLKATA - 700009. 2 I.T.O., WARD - 37(2), KOLKATA. 3 . CIT(A) - XX IV , , KOLKATA 4. CIT - KOLKATA. 5. CIT - DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES