Shri Rupesh Jayvadan Kapadia, Surat V. The Dy.CIT.,Cent.Circle-3, Surat

ITA 3062/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6467 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 15-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SOUNYANANSI
• Assessee Lawyers: M J SHAH
• Keywords: Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : AH MEDABAD ( BEFORE HONBLE SHRI T.K.SHARMA, J.M. & HONBLE SHRI A.N.PAHUJA, A.M.) I.T.A.NO. 3062/AHD./2010 : ASSESSMENT YEAR 200 1-02 SHRI RUPESH JAYVADAN KAPADIA, SURAT VS- DCIT, CENTRAL CIRCLE-3, SURAT (PAN : ACHPK 3119P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.J.SHAH, A.R. RESPONDENT BY: SHRI G.S.SOUNYANANSI, D.R. O R D E R PER SHRI T.K.SHARMA, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT(A)-II, AHMEDABAD DATED 16.08.2010 UPHOLDING THE ADDITION OF RS.2,20,000/- MADE BY THE AO BY TREATING GIFT RECEIVED BY THE ASSESSEE AS NON -GENUINE FOR THE ASSESSMENT YEAR 2001-2002. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, HE FILED THE RETURN OF INCOME ON 31.03.2002 SHOWING THE TOTAL INCOME AT RS.1,13,217/-. THE AO FRAMED THE ASSESSM ENT UNDER SECTION 143(3) OF THE I.T. ACT, 1961 ON 30.11.2006 WHEREIN HE TREATED THE GIFT OF RS.2,20,000/- RECEIVED FROM SHRI NANDKUMAR BALUBHAI PACHCHIGAR AS INCOME F ROM UNDISCLOSED SOURCES UNDER SECTION 68 OF THE I.T. ACT, 1961. 3. ON APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE ST ATED THAT COPY OF GIFT DECLARATION WAS DULY FILED. BEFORE THE LD. CIT(A), RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF MURLIDHAR LAHORIMAL VS- CIT REPORTED IN 280 ITR 512 (GUJ) AND ASSESSEE CONT ENDED THAT NO ADDITION IS CALLED FOR. 2 ITA NO.3062/AHD./2010 3.1 AFTER CONSIDERING THE AFORESAID SUBMISSIONS, TH E LD. CIT(A) UPHELD THE ACTION OF THE AO FOR THE DETAILED REASON GIVEN IN PARA 4 O F THE IMPUGNED ORDER, WHICH IS REPRODUCED HEREUNDER: 4. I HAVE CONSIDERED THE FACTS AND THE SUBMISSIONS. I DO NOT AGREE WITH THE APPELLANTS VIEW. NO COPY OF I.T. RETURN AND BALANC E SHEET ETC. IS FILED. THE SOURCE AND CREDITWORTHINESS IS NOT PROVED. FURTHER, THE DONOR IS NOT THE RELATIVE TO THE APPELLANT. THE FACTS OF THE CASE RE LIED ON BY THE APPELLANT ARE DIFFERENT. IN THAT CASE, THE GIFT WAS MADE BY WAY O F BANK DRAFT AND THE DONOR APPEARED BEFORE THE ASSESSING OFFICER CONFIRMING TH E GIFT AND ALSO PRODUCED THE EVIDENCE IN SUPPORT OF THE SOURCE FROM WHICH TH E FUNDS FOR MAKING THE GIFT WERE AVAILABLE WITH HIM. THE DONOR ALSO HAVING BORN E GIFT TAX ONCE THE ASSESSMENT WAS FRAMED. IN VIEW OF THESE FACTS, THE HONBLE GUJARAT HIGH COURT HELD THAT THE GIFT WAS GENUINE AND THE HONBLE ITAT WAS NOT JUSTIFIED IN TREATING THE GIFT AS NOT GENUINE. HERE, GENUINENESS OF THE TRANSACTION IS NOT ESTABLISHED, NO EVIDENCES IN SUPPORT OF SOURCE OF F UNDS FOR MAKING THE GIFT WERE SHOWN. THEREFORE, THE CASE LAW IS NOT APPLICABLE AN D THE ASSESSING OFFICER IS JUSTIFIED IN MAKING THE ADDITION WHICH IS UPHELD . 4. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING BEFORE US, SHRI M.J.SHAH APPEARED ON BEHALF OF THE ASSESSEE AND FILED THE COPY OF THE GIFT DEED, ACKNO WLEDGEMENT OF RETURN FILED BY THE DONOR FOR THE ASSESSMENT YEAR 2001-02, BANK STATEME NT OF DONOR OF THE SURAT MERCANTILE CO-OP. BANK, BUNDELAWAD, SURAT FOR THE P ERIOD 01.03.2000 TO 31.03.2001. HE SUBMITTED THAT THE GIFT IN QUESTION WAS RECEIVED . THE COUNSEL OF THE ASSESSEE STATED THAT THE DONOR IS FUA OF THE ASSESSEE. IT WAS REC EIVED THROUGH CHEQUE NO.224855 DATED 02.03.2000 OF RS.2,20,000/-. IN SUPPORT OF T HE RELATION, THE COUNSEL OF THE ASSESSEE ALSO PRODUCED THE FAMILY PHOTOGRAPH AND CO NTENDED THAT HE HAS NO OBJECTION IF THE MATTER IS REMANDED TO THE FILE OF THE AO SO THAT THE ASSESSEE CAN PRODUCE THE DONOR AND THE AO MAY EXAMINE THE DONOR AND RE-ADJUD ICATE THE ADDITION OF RS.2,20,000/- AFRESH, IN ACCORDANCE WITH LAW. 6. ON THE OTHER HAND, SHRI G.S.SOUNYANANSI, D.R., A PPEARING ON BEHALF OF THE REVENUE, VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(A). HE POINTED OUT THAT BEFORE THE AUTHORITIES BELOW, THE ASSESSEE HAS MERE LY FURNISHED THE GIFT DEED AND NO 3 ITA NO.3062/AHD./2010 OTHER DOCUMENTS. AS AGAINST THIS, THE COUNSEL OF TH E ASSESSEE POINTED OUT THAT THE COPY OF THE ACKNOWLEDGEMENT OF INCOME-TAX RETURN WAS ALS O FILED. 7. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE AO NEVER ASKED THE ASSESSEE TO PRODUCE THE DONOR. IN CASE, THE AO WAS HAVING ANY D OUBT ABOUT THE GIFT DEED, HE SHOULD HAVE ASKED THE ASSESSEE TO PRODUCE THE DONOR . NOW THE ASSESSEE IS WILLING TO PRODUCE THE DONOR. THEREFORE, IN THE INTEREST OF JU STICE, THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS REMANDED TO T HE FILE OF THE AO WITH THE DIRECTION THAT THE ASSESSEE SHOULD PRODUCE THE DONOR ALONG WI TH ALL OTHER RELEVANT DOCUMENTS AND THE AO WILL EXAMINE THE DOCUMENTS AS WELL AS TH E DONOR AND RE-ADJUDICATE THE ADDITION OF RS.2,20,000/- AFRESH, IN ACCORDANCE WIT H LAW. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.06.2011 SD/- SD/- (A.N.PAHUJA) (T.K.SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10/06/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT 3) CIT(A) CONCERNED 4) CIT CONCERNED 5) D.R., ITAT, AHMEDABAD TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S.