Shri Nitin R. Patel, Surat V. The Income tax Officer,Ward-6(3), Surat

ITA 2477/AHD/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9125 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 28-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 09-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained cash credit; Gift
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO. 2477/AHD/2010 / ASSESSMENT YEAR: 2006-07 SHRI NITIN R. PATEL, PROP. OF PATEL LAD CONSTRUCITON, AT & POST MORA, HAZIRA ROAD, TAL. CHORYASI, DIST-SURAT PAN : AEDPP 1287 M VS THE INCOME TAX OFFICER, WARD-6(3), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE(S) BY : SHRI M.K. PATEL, AR REVENUE BY : SMT. SONIA KUMAR, SR. DR / DATE OF HEARING : 28/03/2016 / DATE OF PRONOUNCEMENT: 30/03/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-IV, SU RAT DATED 02.07.2010, PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED CONFIRMING THE ACTION OF THE ASSESSING OFFICE R IN MAKING ADDITION OF RS.9,45,000/- ON ACCOUNT OF GIFTS RECEIVED FROM RELATIVE TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF I.T. ACT, 1961. 2. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITION MAY PLEASE BE DELETED AS LEARNED MEMBERS OF THE TRIBUNAL MAY DEEM IT PROP ER. ITA NO. 2477/AHD/2010 SHRI NITIN R. PATEL VS. ITO AY : 2006-07 2 3. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE A NY GROUND(S) EITHER BEFORE OR IN THE COURSE OF THE HEARING OF THE APPEA L. 3. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS AGAI NST CONFIRMING THE ADDITION OF RS.9,45,000/- MADE ON ACCOUNT OF GI FTS RECEIVED FROM RELATIVE BY THE ASSESSEE. THE FACTS RELATED TO THI S GROUND ARE THAT THE ASSESSING OFFICER NOTED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS RECEIVED GIFT OF RS.9,45,000/- FROM VA RIOUS PERSONS AND CREDITED THE SAME IN THE CAPITAL ACCOUNT OF THE ASS ESSEE. THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE COMPLETE NAME AND ADDRESSES OF PERSON FROM WHOM THE GIFT WAS RECEIVED AND ALSO ASKED THE ASSESSEE TO PROVE THE CREDITWORTHINESS OF THOSE PERSONS. TH E ASSESSEE, DURING THE ASSESSMENT PROCEEDINGS, FURNISHED THE DETAILS A ND ALSO IN THE STATEMENT RECORDED, THE DONORS HAVE CONFIRMED THAT THE GIFT WAS GIVEN TO THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER REJ ECTED THE CLAIM ON THE GROUND OF ABSENCE OF PROOF REGARDING THE CREDIT WORTHINESS OF THOSE DONORS; AND ACCORDINGLY MADE ADDITION OF RS.9,45,00 0/- U/S 68 OF THE INCOME-TAX ACT. THE ASSESSEE, AGGRIEVED BY THIS O RDER, PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO ALSO, AFTER CONSID ERING THE SUBMISSIONS, CONFIRMED THE ADDITION. NOW, THE ASSE SSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REVENUE AUTHORITIES HAVE NOT DISPUTED THE FACT THAT DONORS ARE AGRICULTURISTS AND THEY HAVE THEIR OWN AGRICULTURAL LAND. TO PROV E THE SAME, REVENUE RECORDS WERE DULY SUBMITTED WHICH IS NOT DI SBELIEVED BY THE REVENUE AUTHORITIES. HOWEVER, THE REVENUE AUTHORIT IES PROCEEDED ON THE PRESUMPTION THAT THE ASSESSEE HAS NOT FURNIS HED THE SOURCE OF ITA NO. 2477/AHD/2010 SHRI NITIN R. PATEL VS. ITO AY : 2006-07 3 EARNING THE INCOME. THE LD. COUNSEL FOR THE ASSESS EE ALSO SUBMITTED THAT EXHAUSTIVE SUBMISSIONS WERE MADE BEFORE THE LD . CIT(A). HE DREW OUR ATTENTION TO THE PAGE NO.18 OF THE PAPER-B OOK. IT WAS CONTENDED BEFORE THE REVENUE AUTHORITIES THAT THE A GRICULTURAL PRODUCE HAVE BEEN SOLD IN RETAIL AND THEREFORE, IT CANNOT BE PRESUMED THAT THERE WAS NO EVIDENCE TO SUPPORT THE CONTENTIO N THAT THE DONORS HAVING SUFFICIENT MEANS OF INCOME. ON THE CONTRARY , LD. SR. DEPARTMENTAL REPRESENTATIVE HAS OPPOSED THE SUBMISS IONS OF THE LD. COUNSEL FOR THE ASSESSEE AND SUBMITTED THAT THE ONU S WAS UPON THE ASSESSEE TO PROVE THAT THE DONORS HAD SUFFICIENT SO URCE OF INCOME TO PROVE THEIR CREDITWORTHINESS. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE ASSESSING OFF ICER HAS RECORDED IN THE ASSESSMENT ORDER THAT ALL THE PERSONS HAVE SUBM ITTED COPY OF FORM NO.7/12 AND FORM NO.8A FROM LAND REVENUE RECORDS. HOWEVER, THE ASSESSING OFFICER OBSERVED THAT THERE WAS NO IRRIGA TION FACILITY IN THE SAID AGRICULTURAL LAND WHICH STANDS IN THE NAME OF THE DONORS WHO ARE FAMILY MEMBERS OF THE ASSESSEE. WE CANNOT ACCEPT TH E REASONING GIVEN BY THE AUTHORITIES BELOW FOR MAKING ADDITION U/S 68 OF THE ACT AS THE REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD SUGGE STING THAT THE LAND WAS BARREN AND NO AGRICULTURAL ACTIVITIES WERE CARRIED OUT. IT IS A NORMAL PRACTICE IN THE AGRICULTURAL SECTOR THAT THE AGRICULTURAL PRODUCE, APART FROM SELLING THROUGH AGRICULTURAL PRODUCE COM MITTEE, IS ALSO SOLD DIRECTLY TO THE CONSUMERS. KEEPING INTO MIND, THE AMOUNT OF GIFT GIVEN BY VARIOUS FAMILY MEMBERS AND ALSO THE PROOF OF LAND HOLDING, WE HEREBY DIRECT THE ASSESSING OFFICER TO DELETE TH E ADDITION MADE ON ITA NO. 2477/AHD/2010 SHRI NITIN R. PATEL VS. ITO AY : 2006-07 4 ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE, TREATING SUCH GIFT AS UNEXPLAINED. THIS GROUND OF THE APPEAL IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 30 TH MARCH, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 30/03/2016 *BIJU T. '#$%&'&($ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD