The ACIT,(OSD)Circle-9, Ahmedabad V. Shri Vijay Hathising Shah, Ahmedabad

ITA 2820/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63267 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 16-10-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 15-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: WITH CO NO AHD
• Assessee Lawyers: ARISING OUT OF
• Keywords: Reopening of assessment; Gift; Revised return
• Section: 143(3); 147

Judgement Text

ITA NO 2820/ AHD/2011 WITH C.O .263/AHD/2011. . ASSESSMENT Y EAR 2003- 04 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. A. NO. 2820/AHD/2011(BY REVENUE) WITH C.O. NO.263/AHD/2011 (BY ASSESSEE) (ARISING OUT OF ITA NO.2820/AHD/2011) (ASSESSMENT YEA R: 2003-04 ) ASSISTANT COMMISSIONER OF INCOME TAX (OSD), CCIRCLE-9, A/208 2 ND FLOOR, PRATYAKSHA KAR BHAVAN, OPP. POLYTECHNIC, AMBAWADI, AHMEDABAD. (APPELLANT) VS. SHRI VIJAY HATHISING SHAH, C/O. M/S.SHAH ENTERPRISE, DENA BANK BUILDING, ELLISBRIDGE, AHMEDABAD-380006. (RESPONDENT) PAN: ADFPS0868J ON BEHALF OF REVENUE : MR. A.TIRKEY,SR. D.R. ON BEHALF OF ASSESSEE: MR. M.G.PATEL. ( )/ ORDER DATE OF HEARING : 16-10-20 12 DATE OF PRONOUNCEMENT : 28-12-2012 PER: SHRI ANIL CHATURVEDI, A.M. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF LD. CIT (A)- XV, AHMEDABAD DATED 19-9-2011 FOR THE ASSESSMENT YE AR 2003-04 AND THE ITA NO 2820/ AHD/2011 WITH C.O .263/AHD/2011. . ASSESSMENT Y EAR 2003- 04 . 2 ASSESSEE HAS FILED CROSS OBJECTION AGAINST THE SAID ORDER. THE ONLY EFFECTIVE GROUND RAISED BY REVENUE IS AS UNDER:- THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.20,50,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED GIFTS. 2. IN THE CROSS OBJECTION THE ASSESSEE HAS RAISED T HE FOLLOWING GROUND:- THE LD. CIT (A)-XV, AHMEDABAD HAS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE BY HOLDING THAT, WHILE PASSING OR DER U/S. 143(3) R.W.S.147 OF THE INCOME TAX ACT,1961, OTHER ADDITIO NS CAN BE MADE THOUGH NO ADDITION HAS BEEN MADE FOR WHICH ASSESSME NT IS RE- OPENED BY ISSUING NOTICE U/S.148 OF THE INCOME TAX ACT, 1961.THIS CONTENTION IS SUPPORTED BY THE BOMBAY HIGH COURT DE CISION IN CASE OF CIT VS. JET AIRWAYS (I) LTD. [331 ITR 236 ]. 3. BRIEF FACTS AS CULLED OUT FROM THE ORDERS ARE AS UNDER:- 4. THE ASSESSEE IS AN INDIVIDUAL. HE FILED HIS RETU RN OF INCOME ON 30-9- 2009 DECLARING TOTAL LOSS OF RS.1,94,370/-. THE RET URN WAS INITIALLY PROCESSED U/S. 143(1)(A) OF THE ACT ON 3-3-2004. L ATER ON THE ASSESSEE FILED REVISED RETURN OF INCOME ON 1-9-2004 DECLARIN G TOTAL INCOME AT RS.10,60,310. SUBSEQUENTLY THE CASE WAS REOPENED U/ S. 147 BY ISSUING NOTICE U/S.148 DATED 26-3-2010 AND THEREAFTER THE A SSESSMENT WAS FRAMED U/S. 143(3) R.W.S. 147 VIDE ORDER DATED 22-10-2010 AND THE INCOME WAS DETERMINED AT RS.31,10,310/- AFTER MAKING ADDITIONS . AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE C IT (A) WHEREIN THE ASSESSEE APART FROM CHALLENGING THE ADDITIONS ALSO CHALLENGED THE ITA NO 2820/ AHD/2011 WITH C.O .263/AHD/2011. . ASSESSMENT Y EAR 2003- 04 . 3 REOPENING OF ASSESSMENT. CIT (A) VIDE ORDER DATED 2 1-1-2011 HELD THAT THE REOPENING TO BE VALID BUT DELETED THE ADDITIONS MA DE BY THE A.O. AGGRIEVED BY THE ORDER OF CIT (A), BOTH ASSESSEE AN D REVENUE ARE NOW IN APPEAL BEFORE US. REVENUE IS AGGRIEVED BY THE DELET ION OF THE ADDITION AND THE ASSESSEE IS AGGRIEVED FOR HOLDING THE REOPENING OF ASSESSMENT TO BE VALID. ITA NO.2820/AHD/2011 (REVENUES APPEAL) 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O. NOTICED THAT ASSESSEE HAS RECEIVED GIFTS IN AGGREGATE OF RS.20,5 0,000/- FROM 4 PERSONS. ASSESSEE WAS ASKED TO PRODUCE THE PERSONS ALONG WIT H THE COPY OF THEIR RETURN OF INCOME, BOOKS OF ACCOUNTS, ID PROOF AND C OMPUTATION OF INCOME. THE ASSESSEE DID NOT PRODUCE THE PERSONS BUT HOWEV ER FURNISHED AFFIDAVIT WHEREIN IT WAS INTERALIA STATED THAT THE ASSESSEE H AD RECEIVED GIFT FROM ALL THE 4 PERSONS. THE ASSESSEE HAS FILED THE AFFIDAVIT OF KOMAL SHAH.THE ASSESSEE ALSO PRODUCED AFFIDAVIT OF SMT. RESHMA SHA H WHEREIN IT WAS STATED THAT SHE HAD GIVEN GIFT TO ASSESSEE FROM HER NRE ACCOUNT. SHE ALSO FURNISHED THE COPY OF HER RETURN OF INCOME FOR A.Y. 2003-04. THE A.O. DID NOT ACCEPT THE AFFIDAVIT OF SMT. RESHMA SHAH FOR TH E REASONS NAMELY THAT THE CAPITAL ACCOUNT SUBMITTED WAS NOT SIGNED BY SMT . RESHMA SHAH BUT WAS SIGNED BY HER ACCOUNTANT, THE RETURN OF INCOME WAS SIGNED BY POWER OF ATTORNEY-HOLDER, THERE WAS NO MENTION OF GIVING OF GIFT TO THE ASSESSEE, THE ADDRESS GIVEN WAS THE C/O. ADDRESS OF THE ASSES SEE. BASED ON THE AFORESAID FACTS A.O. CONCLUDED THAT THE ASSESSEE HA D FAILED TO PROVE THE TRANSACTION TO BE GENUINE AND THE CAPACITY OF THE P ERSONS TO GIVE THE GIFT. ITA NO 2820/ AHD/2011 WITH C.O .263/AHD/2011. . ASSESSMENT Y EAR 2003- 04 . 4 HE ACCORDINGLY ADDED THE AMOUNT OF GIFTS AGGREGATIN G TO RS.20,50,000/- AS INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE CIT (A). BEFORE CIT (A) ADDITIONA L EVIDENCE WAS SUBMITTED ON WHICH CIT (A) CALLED REMAND REPORT FRO M A.O. AFTER CONSIDERING THE REMAND REPORT AND THE SUBMISSIONS O F THE ASSESSEE, CIT (A) DELETED THE ADDITION BY HOLDING AS UNDER:- 5. THE ABOVE TABLE SHOWS THAT THE GIFTS HAVE BEEN M ADE BY CLOSE RELATIVES DAUGHTER, BROTHER, BROTHERS WIFE AND B ROTHERS DAUGHTER STAYING ABROAD BEING NRIS ON THE DATE OF PASSING OF THIS ORDER. THE GIFTS HAVE COME THROUGH CHEQUES FROM THE NRE ACCOUN TS OF THE DONORS. ENOUGH EVIDENCE IN THE FORM OF COPIES OF PA SSPORTS, AFFIDAVITS, BANK CERTIFICATES HAVE BEEN FURNISHED I N SUPPORT OF THE GIFTS THEREFORE IN MY VIEW THERE IS NO JUSTIFICATION IN S USTAINING THE ADDITION OF GIFTS TOTALING TO RS.20,50,000/- 6. AGGRIEVED BY THE ORDER OF CIT (A), THE REVENUE I S NOW IN APPEAL BEFORE US. 7. BEFORE US, THE LD. D.R. SUBMITTED THAT THE ASSES SEE DID NOT PRODUCE THE DONORS BEFORE THE A.O. AND THEREFORE COULD NOT PROVE THE CAPACITY OF THE DONORS TO GIVE GIFTS. HE THUS RELIED ON THE ORD ER OF A.O. 8. ON THE OTHER HAND, THE LD. A.R. SUBMITTED THAT T HE ASSESSEE FURNISHED THE AFFIDAVITS BEFORE THE A.O. BEFORE CIT (A), ASSESSEE SUBMITTED THE COPY OF PASSPORT, BANK CERTIFICATE AND BANK STA TEMENT. CIT (A) HAD ALSO CALLED FOR THE REMAND REPORT FROM A.O. IT WAS FURTH ER SUBMITTED THAT THE GIFTS ARE FROM NEAR RELATIVES VIZ. DAUGHTER, BROTHER, BR OTHERS WIFE STAYING ITA NO 2820/ AHD/2011 WITH C.O .263/AHD/2011. . ASSESSMENT Y EAR 2003- 04 . 5 ABROAD. THUS THE IDENTITY AND CAPACITY OF THE DONOR S WAS PROVED. HE THUS SUPPORTED THE ORDER OF CIT (A). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE THE GIFTS RECEIVED BY T HE ASSESSEE WERE ADDED TO THE INCOME OF THE ASSESSEE. BEFORE CIT (A) ADDIT IONAL EVIDENCE WAS FURNISHED LIKE COPY OF PASSPORT, BANK CERTIFICATE, AFFIDAVITS ETC. CIT (A) CALLED FOR THE REMAND REPORT IN RESPECT OF THE FRES H EVIDENCE. WHILE DELETING THE ADDITION, CIT (A) HAD GIVEN A FINDING THAT THE GIFTS HAVE BEEN RECEIVED BY THE ASSESSEE FROM CLOSE RELATIVES NAMELY DAUGHTE R, BROTHER, BROTHERS WIFE AND BROTHERS DAUGHTERS, THE DONORS ARE NONRES IDENTS AND ARE FINANCIALLY SOUND AND THE GIFTS HAVE COME THROUGH C HEQUES FROM THE NRE ACCOUNTS. THE LD. D.R. COULD NOT CONTROVERT THE FIN DING OF CIT (A) BY BRINGING ANY CONTRARY MATERIAL ON RECORD. IN VIEW O F THESE FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT (A) AND W E THUS UPHOLD HIS ORDER. THUS THIS GROUND OF THE REVENUE IS DISMISSED. C.O. NO.263/AHD/2011 (BY ASSESSEE) 10. IN THE CORSS OBJECTION, THE ASSESSEE HAS CHALLE NGED THE VALIDITY OF REOPENING OF ASSESSMENT. 11. WHILE DECIDING THE APPEAL (ITA NO.2820/AHD/2011 ) HEREINABOVE, WE HAVE CONFIRMED THE ACTION OF CIT (A) OF DELETING TH E ADDITIONS MADE BY A.O. WE ARE OF THE VIEW THAT THE ISSUE RAISED IN C.O.HAV E BECOME ACADEMIC IN ITA NO 2820/ AHD/2011 WITH C.O .263/AHD/2011. . ASSESSMENT Y EAR 2003- 04 . 6 NATURE AND THEREFORE WE REFRAIN FROM ADJUDICATING T HE SAME AND THEREFORE DISMISS THE CROSS OBJECTION OF ASSESSEE. 12. IN THE RESULT, APPEAL FILED BY THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 28- 12- 2012. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) XV, AHMEDDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD ITA NO 2820/ AHD/2011 WITH C.O .263/AHD/2011. . ASSESSMENT Y EAR 2003- 04 . 7 1.DATE OF DICTATION 16 - 11 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 13, 14,26 / 12/ 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 26 -12 - 2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 28 - 12 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 28 - 12 - 2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 8 -12 -2012. 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