Shri Mansukhbhai M Zalaria, Morbi V. The Income Tax Officer (OSD), Range 5, RAJKOT-GUJARAT

ITA 27/RJT/2011

• Counselvise Citation: 2724914 RSA 2011
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-09-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 03-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: DM RINDANI
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.27/RJT/2011 (ASSESSMENT YEAR 2004-05) MANSHUKHBHAI M ZALARIA VS ITO (OSD) C/O CHANDAN CERAMICS INDS RANGE-5, RAJKOT 8-A, NATIONAL HIGHWAY MORBI PAN : AABPZ5710F (APPELLANT) (RESPONDENT) DATE OF HEARING : 05-09-2011 DATE OF PRONOUNCEMENT : 09-09-2011 APPELLANT BY : SHRI DM RINDANI RESPONDENT BY: SHRI MK SINGH O R D E R PER AL GEHLOT, AM THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A)-XXI, AHMEDABAD DATED 31-12-2010 PERTAINING TO ASSESSMENT YEAR 2004-05. 2. WE HEARD SHRI DM RINDANI, THE LD.REPRESENTATIVE FOR THE ASSESSEE AND SHRI MK SINGH, THE LD.DR. 3. THE SOLE ISSUE ARISES FOR CONSIDERATION IS UNEXP LAINED CASH CREDIT U/S 68 OF THE I.T. ACT. THE ASSESSEE HAS CLAIMED THAT HE HAS RECEIVED NRI GIFTS OF RS.1,50,000 AND RS.2 LAKHS FROM SHRI PARESHBHAI DH IRUBHAI AND SHRI ARVINDBHAI H JERAMBHAI OF TOROTO, CANADA. THE ASSESSEE SIMPLY CLAIMED THAT THE GIFTS WERE RECEIVED THROUGH CHEQUES AND AS A PROOF HAS FURNISH ED A CERTIFICATE OF HAVING ITA NO.27/RJT/2011 2 DEPOSITED RS.1,50,000 IN THE CURRENT ACCOUNT OF M/S PATEL MAVJIBHAI KALABHAI & CO AND RS.2,00,000 IN THE SB ACCOUNT. THE ASSESSEE HAS FURTHER EXPLAINED THAT OTHER EVIDENCE SUCH AS COPY OF PASSPORTS, CONFIRMAT ION LETTER FROM THE DONORS AND EXTRACT FROM THEIR PASS BOOK TO PROVE THE IDENT ITY, CAPACITY AND GENUINENESS OF THE GIFTS COULD NOT BE PRODUCED BECAUSE OF THE S TRAINED RELATIONSHIP AMONGST THE DONORS AND THE DONEE. FURTHER AMOUNTS OF RS.49 ,900 AND RS.49,850 WERE ALSO FOUND TO BE CREDITED IN THE CAPITAL ACCOUNT AS CLAIMED TO BE RECEIVED AS GIFT FROM SHRI VALJIBHAI JINABHAI AND AMBARAM LALJIBHAI, WHO ARE AGRICULTURISTS. THOUGH COPIES OF 8A AND 7/12 EXTRACTS WERE PRODUCED PROVING THE AGRICULTURAL LAND HOLDINGS, NO OTHER DETAILS SUCH AS THE CROPS G ROWN ON THE LAND AND THEIR CREDITWORTHINESS, ETC. WERE PRODUCED. ON THESE PRE MISES, THE CIT(A) CONFIRMED THE AGGREGATE ADDITION OF RS.4,49,750. WE FIND THA T UNDER SIMILAR CIRCUMSTANCES, THIS TRIBUNAL REMANDED BACK THE MATTER IN THE CASE OF SMT. GANGABEN A NAVANI IN ITA NO.606/RJT/2010 AND IT(SS)A. 05/RJT/2010 DTD 21-07-2011 AND OTHERS TO THE FILE OF THE ASSESSING OFFICER FOR RE-EXAMINATIO N AFRESH IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS P MOHANA KALA (2007) 291 ITR 278 (SC). IN THE CASE ON HAND, THE FACT REMAINS IS THAT BOTH THE AUTHORITIES BELOW HAVE NOT EXAMINED THE FACTS OF THE CASE IN THE LIGH T OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS P MOHANA KALA. THE APE X COURT, AFTER CONSIDERING THE CASE LAWS ON THE SUBJECT FOUND THAT MERELY BECA USE THE GIFT WAS ROUTED THROUGH BANKING CHANNEL, THAT ALONE MAY NOT BE SUFF ICIENT TO SHOW THE GENUINENESS OF THE GIFT. SINCE BOTH THE AUTHORITIE S BELOW HAVE NOT EXAMINED THE CASE IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT , IN OUR OPINION, THE MATTER ITA NO.27/RJT/2011 3 NEEDS TO BE EXAMINED BY THE ASSESSING OFFICER IN TH E LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS P MOHANA KALA (SUP RA). ACCORDINGLY, THE ORDER OF THE LOWER AUTHORITIES IS SET ASIDE AND THE ISSUE OF GIFT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. THE ASSESSING OFFICER SHALL RE- EXAMINE THE ISSUE OF GIFT IN THE LIGHT OF THE JUDGM ENT OF THE APEX COURT IN THE CASE CIT VS P MOHANA KALA (SUPRA) AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY OF HEA RING TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON -08-2011. (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : AUGUST, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-XXI, AHMEDABAD 4. THE CIT-III, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT