KAPIL ARVINDKUMAR PAREKH, MUMBAI V. I.T.O.WD. 21(2)(3), MUMBAI

ITA 2707/MUM/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2466 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-10-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 07-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K GOPAL SHRI A RAMACHANDRANDR
• Keywords: Gift
• Section: 68; 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, A MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.2707/MUM/2011 ASSESSMENT YEAR: 2002-03 KAPIL ARVINDKUMAR PAREKH, 51-7, SHOBHANA BUILDING, SION MAIN ROAD, SION (WEST), MUMBAI-400022 / VS. INCOME TAX OFFICER, WARD-21(2)(3), C-10, 5 TH FLOOR, ROOM NO.504, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO.AAAPP4520G ITA NO.5853/MUM/2013 ASSESSMENT YEAR: 2002-03 KAPIL ARVINDKUMAR PAREKH, 51-7, SHOBHANA BUILDING, SION MAIN ROAD, SION (WEST), MUMBAI-400022 / VS. INCOME TAX OFFICER, WARD-21(2)(3), C-10, 5 TH FLOOR, ROOM NO.504, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO.AAAPP4520G ITA NO. 2707/MUM/2011 & 5853/MUM/2013 KAPIL ARVINDKUMAR PAREKH 2 $% & # ' / DATE OF HEARING : 28/07/2016 & # ' / DATE OF ORDER: 08/08/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDERS BO TH DATED 07/01/2011 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. FIRST, WE SHALL TAKE UP THE APPEAL OF THE A SSESSEE (ITA NO.2707/MUM/2011). 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, DID NOT PRESS GROUND NUMBERS 1 TO 3 WITH RESPECT TO ISS UANCE OF NOTICE U/S 148 AND VIOLATION OF PRINCIPLE OF NATURA L JUSTICE. CONSIDERING THE REQUEST OF THE ASSESSEE, THESE GROU NDS ARE DISMISSED AS NOT PRESSED. 3. THE ONLY GROUND I.E. GROUND NUMBER 4 IS WITH RESPECT TO ADDITION MADE U/S 68 OF THE INCOME TAX A CT, 1961 (HEREINAFTER THE ACT) AMOUNTING TO RS.31,87,373/- T OWARDS GIFT RECEIVED FROM SHRI SUBHASH DUDANI. THE CRUX OF ARGU MENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT THE DONO R IS THE CLOSE FAMILY FRIEND OF THE FATHER. IT WAS CLAIMED T HAT AT THE RELEVANT TIME, THE DONOR COULD NOT BE PRODUCED BEFO RE THE ASSESSING OFFICER. HOWEVER, SHRI A.RAMACHANDRAN, LD . DR, CONTENDED THAT THE GENUINENESS OF THE GIFT IS IN DO UBT AND SHRI SUBHASH DUDANI IS A HABITUAL DONOR HAD BEEN GI VING GIFT TO OTHER PERSONS ALSO. !' # ! / ASSESSEE BY SHRI K. GOPAL $ ! / REVENUE BY SHRI A. RAMACHANDRAN-DR ITA NO. 2707/MUM/2011 & 5853/MUM/2013 KAPIL ARVINDKUMAR PAREKH 3 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE IMPUGNED ADDITION WAS MADE U/S 68 OF THE ACT BY THE LD. ASSESSING OFFICER AS THE ASSESSEE COULD NOT PROVED THE GENUINENESS OF GIFT RECEIVED FROM AN NRI SHRI SHUBH ASH DUDANI IN THE FORM OF RESURGENT INDIA BONDS AMOUNTI NG TO RS.73,536/- US $ (ON MATURITY). THE DONOR IS NOT RE LATIVE OF THE ASSESSEE. THE DONOR DID NOT APPEAR BEFORE THE A SSESSING OFFICER FOR EXAMINATION. WITHOUT GOING INTO MUCH DE LIBERATION AND AS AGREED BY THE ASSESSEE SHRI SUBHASH DUDANI ( DONOR) IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER ON 23/08/2016 (AS SUGGESTED BY SHRI DUDANI HIMSELF). THE LD. ASSE SSING OFFICER IS DIRECTED TO EXAMINE SHRI DUDANI TO ASCER TAIN THE GENUINENESS OF THE GIFT AND TO FULLY SATISFY HIMSEL F, THEREFORE, THIS GROUND IS SENT TO THE FILE OF THE LD. ASSESSIN G OFFICER FOR ADJUDICATION IN ACCORDANCE WITH LAW. AS POINTED OUT TO THE LD. DR ALSO, THE LD. ASSESSING OFFICER IS DIRECTED TO E XAMINE TO MR. DUDANI EITHER ON 23/08/2016 OR ON A NEAREST POSSIBL E DATE MUTUALLY DECIDED BY THEM WITH THE CONSENT OF THE DO NOR I.E. SHRI SUBHASH DUDANI. THE ASSESSEE BE GIVEN OPPORTUN ITY OF BEING HEARD WITH FURTHER LIBERTY, IF ANY, IN SUPPOR T OF HIS CLAIM. THUS, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOS ES. 4. NOW, WE SHALL TAKE UP THE PENALTY APPEAL (ITA NO.5853/MUM/2013) OF THE ASSESSEE CHALLENGING IMPOS ITION OF PENALTY U/S 271(1)(C) OF THE ACT. WE FIND THAT THE PENALTY WAS IMPOSED BY THE ASSESSING OFFICER WITH RESPECT T O ALLEGED GIFT. SINCE, THE QUANTUM ADDITION ON ALLEGED GIFT H AS BEEN SENT TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTI ON THAT THE ITA NO. 2707/MUM/2011 & 5853/MUM/2013 KAPIL ARVINDKUMAR PAREKH 4 DONOR SHALL APPEAR BEFORE THE ASSESSING OFFICER ON 23/08/2016, THE PENALTY APPEAL IN ALL FAIRNESS IS A LSO SENT TO THE FILE OF THE LD. ASSESSING OFFICER FOR ADJUDICAT ION IN ACCORDANCE WITH LAW AS THE PENALTY IS OFFSHOOT OF Q UANTUM ADDITION, THUS, THIS APPEAL IS ALSO ALLOWED FOR STA TISTICAL PURPOSE. FINALLY, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES IN TERMS INDICATED HEREINABOVE . THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 28/07/2016. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 08/08/2016 F{X~{T? P.S / /. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. /0-. / THE RESPONDENT. 3. 1 1 2# ( +, ) / THE CIT, MUMBAI. 4. 1 1 2# / CIT(A)- , MUMBAI, 5. 4$5 /# , 1 +,' + 6 , % / DR, ITAT, MUMBAI 6. 7! 8% / GUARD FILE. ! / BY ORDER, 04,# /# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI