The ACIT, Circle-6, Ahmedabad V. Janki Darshanbhai Patel, Ahmedabad

ITA 3070/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6761 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S A BOHRA
• Assessee Lawyers: A C SHAH
• Section: 64

Judgement Text

ITA.NO.3070/AHD/2010 ASSESSMENT YEAR 2007- 08. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH,AHM EDABAD. ( BEFORE SHRI D.K. TYAGI AND SHRI A. K. GARODIA) I.T .A. NO. 3070/AHD/2010 (ASSESSMENT YEAR: 2007 -2008 ) THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-6, 2 ND FLOOR C.U. SHAH BUILDING, ASHRAM ROAD, AHMEDABAD-14 (APPELLANT) VS. MISS JANKI DARSHANBHAI PATEL, 19 ROYAL CRESENT, BEHIND ASOPALAV BUNGALOW, THALTEJ, AHMEDABAD. (RESPONDENT) PAN: APXPP 5360C APPELLANT BY : SHRI S.A. BOHRA, RESPONDENT BY : SHRI A. C. SHAH. ( (( ( )/ )/)/ )/ ORDER PER: SHRI A.K. GARODIA , A.M. THIS IS A REVENUES APPEAL DIRECTED AGAINST THE ORDER OF LD. CIT (A)-XI, AHMEDABAD DATED 10-9-2010 FOR THE ASSESSMENT YE AR 2007- 08. 2. GROUNDS RAISED BY THE REVENUE ARE AS UNDER:- 1. THE LD. COMMISSIONER OF INCOME TAX(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.38,05,34, 134/- MADE ON PROTECTIVE BASIS (AS THE INCOME OF MINOR). 3. AT THE VERY OUTSET, IT IS SUBMITTED BY THE LD. A.R. OF THE ASSESSEE THAT IN THE PRESENT CASE, THE ASSESSEE IS A MINOR AND HER INCOME WAS REQUIRED TO BE ADDED IN THE HANDS OF HER FA THER. IT IS ITA.NO.3070/AHD/2010 ASSESSMENT YEAR 2007- 08. 2 SUBMITTED THAT IN FACT ALSO, THIS VERY INCOME WAS ADDED IN THE HANDS OF SHRI DARSHAN NARANBHAI PATEL THE FATHER OF THE PRESEN T ASSESSEE. HE SUBMITTED A COPY OF THE ASSESSMENT ORDER IN THE CASE OF SHR I DARSHAN NARANBHAI PATEL AND POINTED OUT THAT SAME AMOUNT OF INCOME OF RS.38,05,34.134/- WAS ADDED BY THE A.O. IN THE HANDS O F THE FATHER OF THE PRESENT ASSESSEE AND NO APPEAL HAS BEEN FILED BY HIM . OUR ATTENTION WAS DRAWN TO PARAGRAPH 2.2 OF THE ORDER OF LD. CIT (A) WHERE HE HAS NOTED THAT IN THE CASE OF THE FATHER, ADD ITION OF THE SAID AMOUNT WAS NOT APPEALED AGAINST. HE SUBMITTED THAT UN DER THESE FACTS, THE PROTECTIVE ADDITION MADE BY THE A.O. IN THE HANDS OF THE PRESENT ASSESSEE HAS BEEN DELETED BY THE LD. CIT (A). IN REPLY, THE LD. D.R. OF THE REVENUE HAD NOTHING TO SAY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THR OUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IT HAS B EEN NOTED BY THE A.O. IN PARAGRAPH 4 OF THE ASSESSMENT ORDER THAT THE A SSESSEE HAD BECOME MAJOR ON 15-11-2006 AND THEREFORE, HER INCOME FOR THE PERIOD FROM 1-4-2006 TO 15-11-2006 IS REQUIRED TO BE CLUBBED WITH THE INCOME OF HER FATHER SHRI DARSHAN NARANBHAI PATEL U/S . 64 OF THE ACT. IT IS ALSO NOTED BY HIM THAT THE FATHER OF THE ASSESSEE I S ALSO ASSESSED BY HIM AND HE IS MAKING ADDITIONS IN HIS HANDS ON SUBSTA NTIVE BASIS AND ONLY PROTECTIVE ADDITION WAS MADE IN THE PRESENT CASE. AS PER THE COPY OF THE ASSESSMENT ORDER IN THE CASE OF FATHER OF THE PRESENT ASSESSEE I.E. SHRI DARSHAN NARANBHAI PATEL, ADDITION OF THIS AMOUNT WAS MADE IN HIS HANDS U/S. 64. IT IS THE CLAIM OF THE ASSE SSEE THAT NO APPEAL WAS FILED BY THE ASSESSEE IN THAT CASE I.E. IN THE CASE OF FATHER OF THE PRESENT ASSESSEE. THE LD. CIT (A) HAS ALSO NOTED IN PARAGRAPH 2.2 OF HIS ORDER THAT NO APPEAL HAS BEEN FILED BY THE ASSESSEE IN THE CASE OF THE FATHER OF THE PRESENT ASSESSEE. IN THESE FACTS, P ROTECTIVE ITA.NO.3070/AHD/2010 ASSESSMENT YEAR 2007- 08. 3 ADDITION MADE IN THE PRESENT CASE HAS RIGHTLY BEEN DEL ETED BY THE LD. CIT (A) BECAUSE SUBSTANTIVE ADDITION IN THE HANDS OF THE FATHER OF THE ASSESSEE HAS ATTAINED FINALITY AND THEREFORE, PROTECTIVE ADDITION MADE IN THE PRESENT CASE IS NOT SUSTAINABLE. WE THEREFORE, DECL INE TO INTERFERE IN THE ORDER OF THE CIT (A). 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF HEARING ON 6-5-2011. SD/- SD/- (D.K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER. ACCOUNTANT MEMBER. AHMEDABAD. DATED: 6- 5- 2011. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-XI, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR.,ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY /ASSTT. REGISTRAR ITAT, AHMEDABAD . ITA.NO.3070/AHD/2010 ASSESSMENT YEAR 2007- 08. 4 1.DATE OF DICTATION 6 - 5 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 6 / 5 / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 6 -5 -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 6 -5-2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2011. 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..