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

ITA 28/RJT/2011

• Counselvise Citation: 2824914 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.28/RJT/2011 (ASSESSMENT YEAR 2004-05) VISHAL M ZALARIA VS ITO (OSD) C/O OSCAR CERAMICS RANGE-5, RAJKOT GIDC, RAFALESWAR MORBI PAN : AIIPP4874H (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 AGGREGATING TO RS.5,60,000 FROM SHRI SHAMJIBHAI MUL JIBHAI MATALIA RS.2,00,000; SHRI ARVINDBHAI JERAMBHAI RS. 1,00,000 + RS.2,60,00 0 BOTH OF TORONTO, CANADA, WHO WERE CLAIMED TO BE FAMILY RELATIVES OF THE ASSE SSEE. AS A PROOF OF GIFT THE ITA NO.28/RJT/2011 2 ASSESSEE HAS FURNISHED A CERTIFICATE OF HAVING DEPO SITED RS.5,60,000 IN HIS SAVING ACCOUNT WITH BANK OF BARODA, MORBI BRANCH. T HE ASSESSEE HAS FURTHER EXPLAINED THAT OTHER EVIDENCE SUCH AS COPY OF PASSP ORTS, CONFIRMATION LETTER FROM THE DONORS AND EXTRACT FROM THEIR PASS BOOK TO PROV E THE IDENTITY, CAPACITY AND GENUINENESS OF THE GIFTS COULD NOT BE PRODUCED BECA USE OF THE STRAINED RELATIONSHIP AMONGST THE DONORS AND THE DONEE. ANO THER SUMS OF RS.49,875 AND RS.49,875 WERE CLAIMED TO BE RECEIVED AS GIFTS FROM SHRI NANJIBHAI AMARSHIBHAI AND RAMESHBHAI KHIMJIBHAI RESPECTIVELY, WHO ARE AGR ICULTURISTS. THOUGH COPIES OF 8A AND 7/12 EXTRACTS WERE PRODUCED PROVING THE A GRICULTURAL LAND HOLDINGS, NO OTHER DETAILS SUCH AS THE CROPS GROWN ON THE LAND A ND THEIR CREDITWORTHINESS, ETC. WERE PRODUCED. ON THESE PREMISES, THE CIT(A) CONFI RMED THE AGGREGATE ADDITION OF RS.6,59,750. WE FIND THAT UNDER SIMILAR CIRCUMS TANCES, THIS TRIBUNAL REMANDED BACK THE MATTER IN THE CASE OF SMT. GANGAB EN 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-EXAMINATION 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 LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS P MOHANA KALA. THE APEX COURT, AFTER CONSIDERING THE CASE LAWS ON THE SUBJECT FOUND THAT MERELY BECAUSE THE G IFT WAS ROUTED THROUGH BANKING CHANNEL, THAT ALONE MAY NOT BE SUFFICIENT T O SHOW THE GENUINENESS OF THE GIFT. SINCE BOTH THE AUTHORITIES BELOW HAVE NOT EX AMINED THE CASE IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT, IN OUR OPINION, THE MATTER NEEDS TO BE EXAMINED ITA NO.28/RJT/2011 3 BY THE ASSESSING OFFICER IN THE LIGHT OF THE JUDGME NT OF THE APEX COURT IN THE CASE OF CIT VS P MOHANA KALA (SUPRA). 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 JUDGMENT 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 HEARING 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 09-09-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 09 TH SEPTEMBER, 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