Wasim Samed Khan, Pune V. Assistant Commissioner of Income-tax, Central Circle-2(12), , Pune

ITA 1816/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2675 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Search and seizure
• Section: 143(3); 201; 20

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 1816 /P U N/201 8 / ASSESSMENT YEAR : 20 1 6 - 1 7 WASIM SAMED KHAN, S.NO.113/4B/1/2, KHANS VILLA, SHIVSHAKTI COLONY, NR. KRISHNA GARDEN, NADHE NAGAR, PIMPRI, PUNE 411017 . / APPELLANT PAN: A QVPK2731M VS. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(12) , PUNE . / RESPONDENT / APPELLANT BY : SHRI R.G. NAHAR / RESPONDENT BY : SHRI M.K. VERMA / DATE OF HEARING : 0 7 . 0 3 .201 9 / DATE OF PRONOUNCEMENT: 08 . 0 3 .201 9 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 12 , PUNE, DATED 10 . 0 9 .201 8 RELATING TO ASSESSMENT YEAR 20 1 6 - 1 7 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS & SCHEME OF THE ACT IT BE HELD THAT THE CASE AND A S PER PROVISIONS & SCHEME OF THE ACT IT BE HELD THAT THE ADDITION MADE OF RS.1,16,500/ - U/S 56(1)(VII)(C) IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. THE ADDITIONS SO MADE BE DELETED. ITA NO. 1816 /P U N/201 8 WASIM S KHAN 2 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST ADDI TION MADE UNDER SECTION 56(1)(VII)(C) OF THE ACT OF 1,16,500/ - . 4. BRIEFLY, IN THE FACTS OF THE CASE, CONSEQUENT TO SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) OF THE ACT IN ASWANI GROUP OF CASES ON 18.11.2015, THE PREMISES OF ASSESSEE WAS ALSO SEARC HED AS HE WAS THE EMPLOYEE OF ASWANI GROUP ENTITIES. THOUGH THE ASSESSING OFFICER HAD MADE VARIOUS ADDITIONS, BUT AFTER THE ORDER OF CIT(A), ONLY ADDITION WHICH HAS BEEN UPHELD IN THE HANDS OF ASSESSEE IS ON ACCOUNT OF VALUE OF SONY LED TV ASSESSED IN THE HANDS OF ASSESSEE UNDER SECTION 56(1)(VII)(C) OF THE ACT . IN THIS REGARD, ADDITION OF 1,16,500/ - WAS MADE IN THE HANDS OF ASSESSEE. 5. THE CIT(A) IN PARA 4.1 AT PAGE 12 HAS UPHELD THE ORDER OF ASSESSING OFFICER IN MAKING ADDITION UNDER THE PROVISIONS OF SAID SECTION ON THE PREMISE THAT THE ASSESSEE HAD RECEIVED SAID TV AS GIFT FROM SHRI ANIL ASWANI. 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE US POINTED OUT THAT THE PROVISIONS OF SECTION 56(1)(VII)(C) OF THE ACT ARE NOT ATTRACTED AS THE SECOND PROVISO UNDER C LAUSE (D) DEFINES PROPERTY AND THE CONSUMABLE DURABLES ARE NOT COVERED UNDER THE DEFINITION OF PROPERTY FOR APPLYING THE PROVISIONS OF SECTION 56(1)(VII)(C) OF THE ACT. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. ITA NO. 1816 /P U N/201 8 WASIM S KHAN 3 9. WE HAVE PERUSED THE SECTION AND CLAUSE (D) OF SECOND PROVISO, WHICH DEFINES THE PROPERTY. UNDOUBTEDLY, CONSUMABLE DURABLES ARE NOT COVERED UNDER THE DEFINITION OF PROPERTY, WHICH IS RELEVANT FOR DECI DING THE ISSUE OF GIFT AS ENVISAGED UNDER SECTION 56(1)(VII)(C) OF THE ACT . IN SUCH FACTS AND CIRCUMSTANCES, THERE IS NO MERIT IN THE CASE OF REVENUE. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF 1,16,500/ - OF THE ACT. T HE GROUND OF APPEAL RAISED BY ASSESSEE IS THUS, ALLOWED. 1 0 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 8 TH DAY OF MARCH , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUS HMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 8 TH MARCH , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 12 , PUNE ; 4. THE PR. CIT - CENTRAL , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE