Shri Mahesh G. Patel, Ahmedabad V. The Income Tax Officer, Ward-5(1)(4), Ahmedabad

ITA 2697/AHD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4452 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 18-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DIVYANG J SHAH
• Keywords: Unexplained investment; Gift; Onus to prove; Set aside
• Section: 143(3); 131; 69

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER &SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 2697/AHD/2016 ( / ASSESSMENT YEAR :2009-10) SHRI MAHESH GIRISHBHAI PATEL FLAT NO. 301, SABAR AVENUE NEAR SWASTIK CHAR RASTA, NAVRANGPURA, AHMEDABAD- 380009 / VS. ITO, WARD-5(1)(4), AHMEDABAD ./ ./PAN/GIR NO. : AGE PP1 707 D ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : DIVYANG J. SHAH, AR / RESPONDENTBY: MUDIT NAGPAL, SR. DR !' /DATE OFHEARING 26/04/2019 #$!' / DATE OF PRONOUNCEMENT 21/05/2019 %& /O R D E R PER AMARJIT SINGH - AM: THE APPEAL HAS BEEN FILED BY THE ASSESSEE FOR A.Y. 2009-10, ARISE FROM ORDER OF THE CIT(A)-5, AHMEDABAD DATED 17.08.2016, I N PROCEEDINGS UNDER SECTION 143(3) R.W.S. 263 OF THE INCOME TAX ACT, 1961; IN SH ORT THE ACT. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPE AL:- 1. ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND I N LAW, WHETHER THE LD. ASSESSING OFFICER HAS ERRED TO TREAT THE SOURCE OF INCOME OF RS. 6,00,000/- AS UNEXPLAINED AND TO ADD IT AS UNEXPLAINED INVESTMENT U/S. 69 OF THE ACT. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, WHETHER THE LD. ASSESSING OFFICER HAS ERRED IN CONCLUDING THAT ONUS TO PROVE THE SOURCE OF INCOME IN THE HANDS OF THE DONOR SHALL ALSO LIE ON THE APPELLANT. ITA NO. 2697/AHD/2016 A.Y. 2009-10 2 3. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, WHETHER LD. AO HAS ERRED IN TREATING THE GIFT OF RS. 6,00,000/- AS NOT GENUINE TRANSACTION DESPITE OF THE FACT THAT ALL POSSIBLE EVIDENCES REGARDING THE SAME IS VERY MUCH PRODUCED BY THE APPELLANT. 3. THE SOLITARY GROUND OF APPEAL OF THE ASSESSEE IS AGAINST THE DECISION OF THE LD. CIT(A), AHMEDABAD-5 IN SUSTAINING THE ADDITION OF RS. 6,00,000/- AS UNEXPLAINED INVESTMENT U/S. 69 OF THE ACT. ALL THE THREE GROUNDS OF APPEAL OF THE ASSESSEE ARE PERTAINED TO THE AFORESAID COMMON ISSU E. THEREFORE, THESE GROUNDS OF APPEAL ARE ADJUDICATED TOGETHER IN THIS ORDER. 4. THE BRIEF FACT OF THE CASE IS THAT ASSESSMENT U/S . 143(3) OF THE ACT WAS MADE ON 08.12.2011. SUBSEQUENTLY, THE COMMISSIONER OF INCOME TAX VIDE ORDER U/S. 263 OF THE ACT DATED 20.03.2014 HAS SET ASIDE THE A SSESSMENT TO THE FILE OF AO WITH THE DIRECTION TO EXAMINE THE ISSUE AFRESH RELATING TO THE CLAIM OF CASH GIFT OF RS. 6,00,000/- RECEIVED BY THE ASSESSEE AND TOTAL INVES TMENT IN A PROPERTY. THEREAFTER, DURING THE COURSE OF ASSESSMENT TO VERI FY THE GIFT OF RS. 6,00,000/- RECEIVED BY THE ASSESSEE FROM HIS MATERN AL UNCLE SHRI SHASHIKANT R. BAREVADIYA, THE AO HAS ISSUED A SUMMON U/S. 131 OF THE ACT TO THE UNCLE OF THE ASSESSEE AND HIS STATEMENT WAS RECORDED ON 10.02.20 15. IN THE STATEMENT THE DONOR HAS STATED THAT HE WAS HAVING OWNERSHIP OF APPROXIM ATELY 50 BIGHA OF AGRICULTURAL LAND ON WHICH HE GENERATE YEARLY INCOME TO THE AMOU NT OF RS. 5,00,000/-. THE AO HAS NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE TH AT THE DONOR HAS NOT SUBSTANTIATED THAT HE ACTUALLY EARNED SUCH INCOME F ROM HIS LAND HOLDING DURING THE RELEVANT FINANCIAL YEAR AND PRIOR TO IT. CONSEQUEN TLY, THE AO HAS TREATED THE WHOLE AMOUNT OF RS. 6,00,000/- AS UNEXPLAINED AND ADDED T O THE TOTAL INCOME OF THE ASSESSEE. 5. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD . CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE REITERATIN G THE SIMILAR REASON CITED BY THE AO. ITA NO. 2697/AHD/2016 A.Y. 2009-10 3 DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US THE LD. COUNSEL HAS FILED PAPER BOOK CONTAINING DETAIL/SUBMISSION FILED BEFORE THE AO AND LD. CIT(A) DURING THE COURSE OF ASSESSMENT AND APPELLATE PROCE EDINGS. THE LD. COUNSEL ALSO CONTENDED THAT LD. CIT(A) HAS NOT CONSIDERED THE FAC T THAT A.O. HAS NOT DISPROVED THE MATERIAL FACT THAT DONOR UNCLE OF THE ASSESSEE WAS HAVING HUGE OWNERSHIP OF AGRICULTURAL LAND FROM WHICH HE WAS HAVING SUFFICIE NT AGRICULTURAL INCOME. 6. ON THE OTHER HAND THE LD. DR HAS SUPPORTED THE OR DER OF CIT(A). 7. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. THE ISSUE IN THE APPEAL IS PERTAINING TO THE GENUINENESS OF G IFT RECEIVED BY THE ASSESSEE FROM HIS MATERNAL UNCLE. THE AO HAS TREATED THE AMOUNT O F THE GIFT RECEIVED BY THE ASSESSEE AS UNEXPLAINED ON THE GROUND THAT DONOR OF THE GIFT HAS NOT PROVED THAT HE WAS HAVING SUFFICIENT INCOME TO MAKE GIFT OF THE AF ORESAID AMOUNT TO THE ASSESSEE. WITH THE ASSISTANCE OF THE LD. REPRESENTATIVES WE HA VE GONE THROUGH THE MATERIAL ON RECORD AND NOTICED THAT THE DONOR HAS SUBMITTED COPY OF (7X12 DOCUMENTS) IN SUPPORT OF OWNERSHIP OF AGRICULTURAL LAND WHICH DEM ONSTRATES THAT HE WAS HAVING OWNERSHIP OF HUGE AGRICULTURAL LAND.IN SUPPORT OF C ARRYING OF AGRICULTURAL ACTIVITIES COPIES OF SAMPLE BILLS OF PURCHASES WERE ALSO PRODU CED. IT IS ALSO NOTICED THAT IN THE PAPER BOOK THE ASSESSEE HAS ALSO PLACED A COPY OF FORM NO. 8 ON WHICH DETAILS OF CROPS CULTIVATED ON THE AGRICULTURAL LAND ARE MA INTAINED. IT IS ALSO CONTENDED TO VERIFY THE CLAIM OF CARRYING OUT AGRICULTURAL ACTIV ITIES BY THE UNCLE OF THE ASSESSEE NOT ANY CERTIFICATE FROM THE TALATI WAS CALLED FOR. IN VIEW OF THE ABOVE AND THE CLAIM OF THE DONOR THAT HE WAS HAVING INCOME ONLY F ROM AGRICULTURE IT BECOME IMPERATIVE FOR THE A.O. TO EXAMINE THE SUPPORTING M ATERIAL/DETAILS FURNISHED TO CLAIMING THAT THE UNCLE OF THE ASSESSEE HAS EARNED SUFFICIENT AGRICULTURAL INCOME OUT OF WHICH THE GIFT OF RS. 6,00,000/- WAS GIVEN TO TH E ASSESSEE. THEREFORE, WE RESTORE THIS CASE TO THE FILE OF THE AO TO DECIDE AFRESH AF TER EXAMINATION AND VERIFICATION OF THE SPECIFIC INFORMATION IN SUPPORT OF EARNING OF A GRICULTURAL INCOME FURNISHED BY THE DONOR. ACCORDINGLY, WE SET ASIDE THIS CASE TO THE FILE OF THE AO FOR DECIDING ITA NO. 2697/AHD/2016 A.Y. 2009-10 4 AFRESH AS DIRECTED ABOVE AFTER AFFORDING ADEQUATE O PPORTUNITY TO THE ASSESSEE. THEREFORE, THIS APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. 8. IN THE RESULT, THISAPPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (KUL BHARAT) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 21/05/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. % / ASSESSEE 3. '( ! )! / CONCERNED CIT 4. )! - / CIT (A) 5. *+, ! ( , ' ( , -.%'% / DR, ITAT, AHMEDABAD 6. ,/ 0 / GUARD FILE. BY ORDER / %& , 1 / - ' ( , -.%'% 2 1.DATE OF DICTATION ON 01.05.2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 02.05.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 02.05.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 21.05.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 21.05.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21 .05.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER THIS ORDER PRONOUNCED IN OPEN COURT ON 21/05/2019