MEHUL CHANDRAKANT PATEL, MUMBAI V. ITO WD 16(1)(1), MUMBAI

ITA 3553/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0231 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-04-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: K P KAPADIA
• Keywords: Gift; Additional evidence
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.3553/MUM/2013 (ASSESSMENT YEAR- 2005-06) MR. MEHUL CHANDRAKANT PATEL 32, GARDEN VIEW, 45 AUGUST KRANTI MARG, GOWALIA TANK, MUMBAI-400036. PAN: AABPP5157C VS. INCOME TAX OFFICER, WARD 16(1(1), 2 ND FLOOR, AAYAKAR BHAVAN, MATRU MANDIR, TARDEO, MUMBAI- 400007. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.P. KAPADIA (AR) REVENUE BY : SHRI SUMAN KUMAR (DR) DATE OF HEARING : 11.04.2017 DATE OF PRONOUNCEMENT : 26.05.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE U/S 253 OF THE INCOME-TAX A CT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-5, MUMBAI DATED 23. 01.2013 FOR AY-2005-06. THE SOLITARY GROUND OF APPEAL RAISED BY ASSESSEE RAISE D IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 14,41,368/- U/S 68 O F THE ACT BY DISALLOWING GIFT RECEIVED FROM RELATIVE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 29.08.2005 DECLARING TOTAL INCOME OF RS. 4,14,65 0/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 20.12.2007. THE ASSESSING OFFICER (AO) WHILE PASSING THE ASSESSMENT ORDER MADE THE ADDITION OF R S. 14,41,368/- ON ACCOUNT OF NON-GENUINENESS OF GIFT RECEIVED FROM RELATIVE AND TREATED THE SAME AS UNAPPROVED CASH CREDIT U/S 68 OF THE ACT. ON APPEAL BEFORE THE LD. CIT(A), THE ADDITION WAS UPHELD. HENCE, FURTHER AGGRIEVED BY THE ORDER OF LD . CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ITA NO. 3553/M/ 2013- MR. MEHUL CHANDRAKANT PATEL 2 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR REVENUE AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE ARGUED THAT A SSESSEE RECEIVED GIFT FROM HIS RELATIVE. THE DONOR OF THE GIFT MRS. KALPANA PATEL IS REAL SISTER OF FATHER OF ASSESSEE. DURING THE ASSESSMENT, THE ASSESSEE WAS A SKED TO FILE THE DETAILS OF GIFT RECEIVED, CREDITWORTHINESS OF THE DONOR AND GENUINE NESS OF THE GIFT. THE ASSESSEE FILED THE REQUIRED DETAILS. HOWEVER, THE ASSESSEE C OULD NOT FILE FOREIGN REMITTANCE CERTIFICATE. DURING THE FIRST APPELLATE PROCEEDING, THE ASSESSEE FILED THE ADDITIONAL DOCUMENT. ON FURNISHING THE ADDITIONAL EVIDENCE, TH E LD. CIT(A) REFERRED THE DOCUMENT TO THE AO FOR HIS REMAND REPORT. IN THE RE MAND REPORT, THE AO CONTENDED THAT ASSESSEE COULD NOT PROVE THE CREDITW ORTHINESS OF THE DONOR. THE LD. AR OF THE ASSESSEE FURTHER SUBMITTED THAT THE A SSESSEE HAS NOW BEFORE THE TRIBUNAL, HAVE FILED ALL DETAILS OF DONOR INCLUDING THE CONFIRMATION OF THE DONOR, THE FOREIGN REMITTANCE CERTIFICATE. IT WAS FURTHER ARGUED THAT THE FOREIGN REMITTANCE CERTIFICATE WAS FILED BEFORE LD. CIT(A) IN THE APPEAL FILED BY ASSESSEE AGAINST THE LEVY OF PENALTY. THE LD. CIT(A) IN APPE AL NO. IT-93/2012-13/63/2013- 14 VIDE ORDER DATED 29.11.2013 ACCEPTED THE SAID DO CUMENT. THE LD. CIT(A) AFTER CONSIDERING THE CONTENTION OF ASSESSEE CONCLUDED TH AT THE ASSESSEE HAS DISCHARGED HER ONUS OF FULFILLING THE THREE CONDITION TO PROVE THE GIFT VIZ. IDENTITY OR CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF TH E CLAIM. THE LD. CIT(A) DELETED THE PENALTY LEVIED BY AO ON DISALLOWANCE OF THE GIFT, WHICH IS THE SUBJECT MATTER OF THE PRESENT APPEAL. IT WAS FURTHER ARGUED THAT THE REVENUE HAS NOT FILED ANY APPEAL AGAINST THE ORDER OF LD. CIT(A) DATED 29 .11.2013. ON THE OTHER HAND, LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF AUTHO RITIES BELOW. THE LD. DR FOR THE REVENUE FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED THE ADDITIONAL EVIDENCE WHICH REQUIRED VERIFICATION BY AO OR BY LD. CIT(A) AND WITHOUT GIVING OPPORTUNITY TO THE AO, THE ADDITIONAL DOCUMENT FILE D BY ASSESSEE MAY NOT BE CONSIDERED AT THIS STAGE. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDER OF AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE ORDER OF LD. CIT(A) DATED ITA NO. 3553/M/ 2013- MR. MEHUL CHANDRAKANT PATEL 3 29.11.2013 WHEREIN THE PENALTY LEVIED BY AO WAS DEL ETED. THE LD. CIT(A) CONCLUDED THAT ASSESSEE HAS FILED COPY OF CREDIT AD VICE FOR INWARD REMITTANCE OF HDFC BANK, WHICH CLEARLY MENTIONED THAT THE PURPOSE OF REMITTANCE, GIFT FROM FAMILY MEMBERS. REMITTERS NAME IS ALSO MENTIONED A S KALPANA M. PATEL. THE BENEFICIARY NAME IS OF ASSESSEE. THE LD. CIT(A) FUR THER CONCLUDED THAT ASSESSEE HAS DISCHARGED HIS ONUS OF FULFILLING ALL THREE CON DITIONS TO PROVE THE GIFT VIZ. IDENTITY AND CREDITWORTHINESS OF THE DONOR AND GENU INENESS OF THE GIFT. THE REVENUE HAS NOT FILED ANY APPEAL AGAINST THE SAID O RDER. THE ORDER ATTAINS FINALITY. CONSIDERING THE ORDER OF LD. CIT(A) IN PENALTY PROC EEDING, WE DO NOT FIND ANY MERIT IN THE SUBMISSION OF LD. DR FOR THE REVENUE F OR FURTHER VERIFICATION OF THE SAID DOCUMENT BY AO, WHICH HAS ALREADY BEEN ACCEPTE D BY LD. CITA). HENCE, THE GROUND OF APPEAL RAISED BY ASSESSEE IN THE PRESENT APPEAL IS ALLOWED. 5. WITH THESE OBSERVATIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DAY OF MAY 2017. SD/- SD/- (G.S. PANNU) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 26/05/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/