Shri Shripal Pratapbhai Shah, Surat V. The Income Tax Officer, Ward 5(4), Surat

ITA 1859/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94653 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 28-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADIP KR MAJUMDAR
• Assessee Lawyers: SHRIPAL P SHAH
• Keywords: Unexplained cash credit; Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: S H RI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER SHRIPAL PRATAPBHAI SHAH, C - 904, MADHAV RESIDENCY, B/H SHREEJI ARCADE, ANAND MAHAL ROAD, ADAJAN, SURAT - 395009 PAN: ANPPS2991A (APPELLANT) VS INCOME TAX OFFICER, WARD NO. 5(4), SURAT (RESPONDENT) REVENUE BY : S H RI PRADIP KR. MAJUMDAR , SR. D . R. ASSESSEE BY: S H RI SHRIPAL P. SHAH , A.R. DATE OF HEARING : 14 - 10 - 2 015 DATE OF PRONOUNCEMENT : 30 - 10 - 2 015 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THE S E TWO ASSESSEE S APPEAL S FOR A.Y. 2005 - 06 , AR ISE FROM ORDER OF THE CIT(A) - I, SURAT DATED 20 - 05 - 2013 IN APPEAL NO. CAS - I/399 & 400 /12 - 13 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 254 AND SECTION 271(1)(C) OF THE INCOME T AX ACT, 1961; IN SHORT THE ACT . I T A NO S . 1859 & 1860 / A HD/20 13 A SSESSMENT YEAR 200 5 - 06 I.T.A NO S . 1859 & 1860 /AHD/20 13 A.Y. 2005 - 0 6 PAGE NO SHRIPAL PRATAPBHAI SHAH VS. ITO 2 2. A PERUSAL OF THESE CASE FILES REVEALS THE FORMER APPEAL ITA 1859/AHD/2013 CHALLENGES ADDITION OF RS. 3 LACS U/S. 68 OF THE ACT ON ACCOUNT OF ASSESSEE S FAILURE IN PROVING HIS GIFT CLAIM TO HAVE BEEN RECEIVED F R O M HIS FATHER. THE LATTER CASE ASSAILS CORRECTNESS OF THE CORRESPONDING PENALTY OF RS. 92,840/ - IMPOSED BY THE LOWER AUTHORITIES U/S. 271(1)(C) OF THE ACT. 3. FIRST WE COME TO MERITS OF THE CAS E. THE ASSESSEE - INDIVIDUAL FI L E D HIS RE T URN ON 18 - 08 - 2005 DECLARI NG INCOME OF RS. 1,06,110/ - . HE IS ENGAGED IN RETAIL TRADING OF DIAMOND TOOLS AND JOB WORK. THE ASSESSING OFFICER NOTICED IN SCRUTINY THAT ASSESSEE S CAPITAL ACCOUNT HAD BEEN CREDITED WITH A SUM OF RS. 3 LACS ON ACCOUNT OF GIFT RECEIVED FROM HIS FATHER S HRI PRATAPBHAI K. SHAH. HE CAME ACROSS GIFT INDENTURE ON A STAMP PAPER OF RS. 50/ - ENTERED ON 04 - 12 - 2004 BETWEEN DONOR AND DONE E . THE SAME WAS FOUND TO HAVE BEEN PURCHASED ON A LAT ER DATE 10 - 12 - 2004. THE ASSESSING OFFICER FURTHER TOOK COGNIZANCE OF THE FACT THAT THIS GIFT DEED WAS NO T REGISTERED OR EXECUTED BEFORE ANY AUTHORIZED OFFICER. MODE OF THIS GIFT WAS THROUGH DEMAND DRAFT PURCHASED ON VARIOUS DATES. THE ASSESSING OFFICER IN A REGULAR ASSESSMENT FRAMED ON 29 - 12 - 2010 REJECTED ASSESSEE S GIFT CLAI M BY DOUBTING ITS GENUINENESS AS PER THE ABOVE SAID FACTS AND CIRCUMSTANCES. HE INVOKED SECTION 68 OF THE ACT FOR TREATING THE IMPUGNED SUMS OF RS. 3 LACS AS UNEXPLAINED CASH CREDIT. THE CIT(A) UPHELD ASSESSING OFFICER S ACTION. THE AS SESSEE FILED ITA 29 57/AHD/2009. HE RAISED ALTOGETHER A NEW ARGUMENT THAT THIS AMOUNT OF RS. 3 LACS WAS MISTAKENLY CLAIMED AS A GIFT AND THE SAME I.T.A NO S . 1859 & 1860 /AHD/20 13 A.Y. 2005 - 0 6 PAGE NO SHRIPAL PRATAPBHAI SHAH VS. ITO 3 WAS INVESTMENT BY HIS FATHER IN ACQUIRING A RESIDENTIAL FLAT. THE ASSESSEE WOULD FURTHER SUBMIT THAT BOTH HIMSELF AND HIS FATHER HAD PURCHASED A FLAT FOR RS. 6,21,000/ - WHEREIN THE LATTER S CONTRIBUTION TO THE TUNE OF RS. 3 LACS. A CATEGORIC STAND WAS TAKEN THAT HE HAD NOT RECEIVED ANY BENEFIT QUA THIS SUM OF RS. 3 LACS. THE LEARNED CO - ORDINATE IN ITS ORDER DATED 23 - 07 - 2010 REMITT ED THE ISSUE BACK TO THE ASSESSING OFFICER AS UNDER: - 'THE CONTENTION OF THE ASSESSEE THAT THE FLAT WAS ACQUIRED ON 03.03.2006 FOR RS.6,21,000/ - IN THE JOINT NAME OF THE ASSESSEE AND HIS FATHER COULD NOT BE CONTROVERTED BY THE REVENUE. A COPY OF THE RELEVA NT REGISTERED SALE DEED WAS PLACED AT PAGE NOS. 7 - 31 OF THE PAPER BOOK. IN MY CONSIDERED OPINION, IF THE FLAT IS ACTUALLY OWNED BY THE ASSESSEE AND HIS FATHER BOTH AND THE MONEY WHICH WAS PAID BY THE FATHER WAS TOWARDS ACQUISITION OF HIS SHARE OF OWNERSHIP OF THE FLAT THAN IT CANNOT BE HELD THAT THE ASSESSEE HAS RECEIVED ANY BENEFIT OF RS.3 LAKHS IN QUESTION AND THEREFORE, SAME CANNOT BE HELD AS GIFT BY THE FATHER OF THE ASSESSEE AND CONSEQUENTLY THE SAME CANNOT BE ADDED U/S.68 IN THE HANDS OF THE ASSESSEE. IN MY CONSIDERED OPINION THE ISSUE IS TO BE DECIDED BY ALL RELEVANT FACTS OF THE CASE AND NOT BY MERELY THE TREATMENT GIVEN BY THE ASSESSEE OR PRESENTATION MADE BY THE ASSESSEE OR BY THE NOMENCLATURE GIVEN TO DOCUMENT BY THE ASSESSEE OR TRUE NATURE OR CHA RACTER OF THE TRANSACTION THAT SHOULD DETERMINE THE CONSEQUENCE OF TRANSACTION. IN THE ABOVE CIRCUMSTANCES, IN MY CONSIDERED OPINION IT SHALL BE IN THE INTEREST OF THE JUSTICE TO RESTORE THIS ISSUE BACK TO THE FILE OF LEARNED ASSESSING OFFICER FOR PROPER V ERIFICATION OF SALE DEED AND TO DETERMINE THE ACTUAL NATURE OF TRANSACTION OF THE AMOUNT RS.3 LAKHS IN QUESTION. IF IT IS FOUND ON VERIFICATION THAT THE AMOUNT OF RS.3 LAKHS WAS CONSIDERATION PAID BY THE FATHER OF THE ASSESSEE FOR ACQUIRING PART OWNERSHIP OVER THE FLAT THEN THE SAME CANNOT BE HELD AS GIFT BY THE FATHER OF THE ASSESSEE AND CONSEQUENT TO THE INCOME OF THE ASSESSEE. THE LEARNED ASSESSING OFFICER SHALL RE - ADJUDICATE THE ISSUE AFRESH AS PER LAW AFTER PROPER VERIFICATION OF ALL THE RELEVANT FACT S AND AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THIS GROUND OF APPEAL IS SET ASIDE TO THE FILE OF THE LEARNED ASSESSING OFFICER. I.T.A NO S . 1859 & 1860 /AHD/20 13 A.Y. 2005 - 0 6 PAGE NO SHRIPAL PRATAPBHAI SHAH VS. ITO 4 4. THE ASSESSING OFFICER TOOK UP CONSEQUENTIAL PROCEEDINGS. IT TRANSPIRES THAT THE ASSESSEE AG AIN RAISED GIFT PLEA. THE ASSESSING OFFICER NARRATED CHRONOLOGY OF ABOVE STATED FACTS. HE OBSERVED THAT THE ASSESSEE HAD FAILED TO PROVE HIS GIFT CLAIM EVEN IN THE SECOND ROUND BY WAY OF SATISFACTORY, COGENT AND RELIANCE EVIDENCE. HE ACCORDINGLY RE - INVO KED SECTION 68 OF THE ACT FOR MAKING THE IMPUGNED ADDITIONS OF RS. 3 LACS. THE CIT(A) UPHOLDS THE SAME IN THE ORDER UNDER CHALLENGE. THIS LEAVES THE ASSESSEE AGGRIEVED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE CASE FILE. RELEVANT FACTS NARRATE D HEREINABOVE ARE NOT REPEATED FOR THE SAKE OF BREVI TY. THIS IS SECOND ROUND OF PROCEEDINGS BETWEEN THE PARTIES BEFORE THE TRIBUNAL ON THIS GIFT ISSUE. THERE IS NO DISPUTE THAT THE TRIBUNAL IN FIRST ROUND HAS ACCEPTED ASSESSEE S PLEA THAT HE AND HIS FATH ER JOINTLY PURCHASED THE FLAT IN QUESTION ON 03 - 03 - 2006 FOR RS. 6,21,000/ - . THE REGISTERED SALE DEED IN THIS REGARD FORMS PART OF THE CASE FILE. THIS IS NOT THE REVENUE S CASE EITHER IN THE COURSE OF ASSESSMENT OR BEFORE THE LOWER APPELLATE PROCEED INGS THAT THE IMPUGNED ADDITION OF RS. 3 LACS IS NOT THE ONE PERTAINING TO THIS FLAT PURCHASE MONEY IN THE NAME OF THE DONOR - FATHER. WE ARE OF THE OPINION IN THIS BACKDROP OF FACTS THAT ASSESSEE S INCONSISTENT STANDS ADOPTED BEFOR E THE TRIBUNAL AND IN CONSEQUE NTIAL PROCEEDINGS (SUPRA) HAVE TO BE IGNORED IN THE INTEREST OF JUSTICE. BE THAT AS IT MAY, THE FACT REMAINS THAT THE ASSESSEE S FATHER - DONOR HAS INVESTED THE MONEY IN QUESTION AMOUNTIN G TO RS. 3 LACS IN HIS OWN NAME FOR JOINTLY PURCHASING THE FLAT IN QUE STION. WE DRAW SUPPORT FROM OUR EARLIER I.T.A NO S . 1859 & 1860 /AHD/20 13 A.Y. 2005 - 0 6 PAGE NO SHRIPAL PRATAPBHAI SHAH VS. ITO 5 ORDER FOR HOLDING THAT THE IMPUGNED ADDITION COULD NOT HAVE BEEN IN ASSESSEE S HANDS MERELY ON THE BASIS OF THIS GIFT NOMENCLATURE. WE ACCORDINGLY ACCEPT THE ASSESSEE S ARGUMENT ON THIS COUNT ALONE AND DELETE THE IMPUGNED ADDITION OF RS. 3 LACS. ITA 1859/AHD/2013 SUCCEEDS. 6. THE ASSESSEE S PENALTY APPEAL ITA 1860/AHD/2013 HAS ACCORDINGLY BEEN RENDERED INFRUCTUUOUS. 7. THE ASSESSEE S APPEAL ITA 1859/AHD/2013 I S ALLOWED. THE LATTER APPEAL I TA 1860/AHD/2013 IS D ISMISSED AS HAVING BECOME INFRUCTUOUS. ORDER PR ONOUNCED IN THE OPEN C OURT ON 3 0 - 10 - 2015 SD/ - SD/ - ( ANIL CHATURVEDI ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 30 /10 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,