Dy. Commissioner of Income Tax-II, Kanpur V. Smt. Irvinder Kaur, Kanpur

ITA 362/LKW/2012

• Counselvise Citation: 36223714 RSA 2012
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-06-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 03-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 362 /LKW/201 2 ASSESSMENT YEAR:20 01 - 02 DY.C.I.T. - II, KANPUR. VS. SMT. IRVINDER KAUR, 112/236, FAZAL GANJ, KANPUR. PAN:AWIPS6842E (APPELLANT) (RESPONDENT) APPELLANT BY SHRI MANOJ KUMAR GUPTA, CIT, D.R. RESPONDENT BY NONE DATE OF HEARING 24 /06/2014 DATE OF PRONOUNCEMENT 1 1 /07 /2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - II , KANPUR DATED 23 / 03 /20 12 FOR ASSESSMENT YEAR 200 1 - 20 02 . 2. IN THIS APPEAL , THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE ASSESSEE'S WINNINGS FROM THE TV GAME SHOW CONSTITUTED INCOME AS DEFINED U/S 2(24)(IX) OF THE INCOME TAX ACT, 1961. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT UNDER SECTION 115BB OF THE 2 INCOME TAX ACT, 1961, THE RATE OF TAXATION OF SUCH INCOME WAS 40% FOR THE A.Y. 2001 - 02. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS E RRED IN LAW AND ON FACTS IN HOLDING THAT THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. G. R. KARTHIKEYAN, 201 ITR 866, SUPPORTED THE CASE OF THE ASSESSEE. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT, IN ITS ABOVE DECISION, THE HON'BLE APEX COURT HAD OBSERVED THAT EVEN IF THE HIGH COURT HAD FOUND THAT THE RECEIPT IN QUESTION DID NOT FALL WITHIN SUB - CLAUSE (IX) OF SECTION 2(24) (WITH WHICH FINDING THE APEX COURT ITSELF DID NOT APPARENTLY AGREE) IT HAD STILL ERRED IN CONCLUDING THAT THE RECEIPT DID NOT CONSTITUTE INCOME. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT, IN ITS VER DICT IN THE SAID CASE OF CIT VS G. R. KARTHIKEYAN, THE HON'BLE APEX COURT HAD OTHERWISE CLEARLY OPINED THAT THE WORDS 'OTHER GAMES OF ANY SORT' (USED IN S.2(24)(IX)) ARE OF WIDE AMPLITUDE AND THAT THEIR MEANING IS NOT CONFINED TO GAMES OF A GAMBLING NATURE ALONE BUT ALSO ENCOMPASSES GAMES OF SKILL OR COMPETITIVE GAMES. THAT IN THIS VIEW OF THE MATTER, THE TV GAME SHOW AS IN THE PRESENT CASE WOULD BE COVERED BY THE DEFINITION OF INCOME UNDER S. 2(24)(IX), IRRESPECTIVE OF THE EXPLANATION THERETO INTRODUCED W. E.F. 01.04.2002. 6. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT, IN VIEW OF THE VERDICT OF THE HON'BLE APEX COURT IN THE SAID CASE OF CIT VS G. R. KARTHIKEYAN, IT WAS NO LONG ER OF ANY CONSEQUENCE IN THE ASSESSEE'S CASE, THAT THE EXPLANATION TO S.2(24)(IX) WAS INTRODUCED W.E.F. 01.04.2002, SINCE THIS 3 EXPLANATION WAS ONLY CLARIFICATORY OF THE EXISTING PROVISIONS OF LAW APPLICABLE FOR A.Y. 2001 - 02. 7. THAT THE ORDER OF THE LD. C IT (A) - II, KANPUR DATED 23.03.2012 NEEDS TO BE QUASHED AND THE ORDER U/S 143(3)/254 OF THE I.T. ACT, 1961 PASSED BY THE ASSESSING OFFICER DATED 26.12.2006 TO BE RESTORED. 8. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL MENTIONED ABOVE AND/OR TO ADD ANY FRESH GROUNDS AS AND WHEN IT IS REQUIRED TO DO SO. 3. ON THE APPOINTED DATE OF HEARING, N ONE APPEARED ON BEHALF OF THE ASSESSEE . FROM THE RECORDS, IT IS SEEN THAT ON 6 TH MAY 2014, SHRI VIKAS GARG, ADVOCATE AND LEARNED A.R. OF THE ASSESSEE APPEARED AND FILED PAPER BOOK AND THE HEARING WAS ADJOURNED TO 24/06/2014. HENCE, THE DATE OF HEARING WAS VERY MUCH IN THE KNOWLEDGE OF THE LEARNED AR OF THE ASSESSEE AND IN SPITE OF TH IS , NONE HAS APPEARED ON BEHALF OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING AND THERE IS NO REQUEST FOR ADJOURNMENT. UNDER THESE FACTS, WE PROCEED TO DECIDE THE APPEAL OF THE REVENUE EX - PARTE QUA THE ASSESSEE. 4. IT WAS SUBMITTED BY LEARNED D.R. OF THE REVENUE THAT THE ASSESSING OFFICER HAS FOLLOWED THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME - TAX VS KARTHIKEYAN (G.R.) AS REPORTED IN [1993] 201 ITR 866 (SC) AND IT IS STATED BY CIT(A) THAT THE FACTS OF THIS CASE AR E DIFFERENT FROM THAT OF THE ASSESSEE WITHOUT GIVING ANY BASIS AS TO HOW AND WHICH FACTS ARE DIFFERENT. HE SUBMITTED THAT UNDER THESE FACTS, THE ORDER OF CIT(A) SHOULD BE REVERSED AND THAT OF THE ASSESSING OFFICER SHOULD BE RESTORED. 4 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THIS ISSUE HAS BEEN DECIDED BY CIT(A) AS PER FOLLOWING PARA ON PAGE NO. 18 OF HIS ORDER, WHICH IS REPRODU CED BELOW FOR READY REFERENCE : IN VIEW OF ABOVE, I HOLD THAT THE WINNING BY THE ASSESSEE OF RS.12,00,003/ - (INCLUDING COST OF GIFT ITEMS) WHILST PARTICIPATING IN AN ENTERTAINMENT PROGRAMME ON TELEVISION IS TAXABLE AT NORMAL RATES FOR AY 2001 - 02 AND NOT U /S 115BB. I ALSO FIND SUPPORT FROM THE DECISION IN THE CASE OF ACIT V. PRADEEP GUPTA 105 TTJ 0121 (JODH - TRIB) AND THE DECISION OF THE HON'BLE HIGH COURT OF ORISSA IN THE CASE OF MISS LOPA MUDRA MISHRA V. ACIT 337 ITR 86. THE AFORESAID DECISIONS ARE BASED ON SIMILAR FACTS WHERE THE ASSESSEE IN THOSE CASES HAD WON PRIZES WHILST PARTICIPATING IN THE ENTERTAINMENT PROGRAMME, 'KAUN BANEGA CROREPATI', ON TELEVISION. THE HON'BLE HIGH COURT OF ORISSA HELD, ALLOWING THE APPEAL OF THE ASSESSEE, THAT THE 'TRIBUNAL HA D FAILED TO TAKE NOTE OF THE FACT THAT CLAUSE (II) OF THE EXPLANATION TO SECTION 2(24) (IX) WAS INTRODUCED WITH EFFECT FROM APRIL 1, 2002 AND WOULD HAVE PROSPECTIVE EFFECT.' HERE ALSO IN THE CASE OF THE ASSESSEE, THE INCOME FALLS U/S 2(24)(IX) TO BE TAXED U/S 115BB BUT THEIR APPLICABILITY IS MADE EFFECTIVE FROM A.Y.2002 - 03 AND ONWARDS. THEREFORE, THE INCOME EARNED BY THE ASSESSEE IS TO BE TAXED AT NORMAL RATES PREVAILED FOR A.Y.2001 - 02. 5.1 FROM THE ABOVE PARA OF CIT(A), WE FIND THAT IN THIS CASE , THE C IT(A) HAS FOLLOWED THE JUDGMENT OF HON'BLE ORISSA HIGH COURT RENDERED IN THE CASE OF MISS LOPA MUDRA MISHRA V. ACIT 337 ITR 86 AND IN THAT CASE , THE ASSESSEE HAD WON PRIZE WHILE PARTICIPATING IN ENTERTAINMENT PROGRAMME (KAUN BANEGA KARORPATI) ON TELEVISION . IN THE PRESENT CASE ALSO, THE PROGRAMME IS SIMILAR AS PER RULES OF PROGRAMME (JEETO CHHAPAR PHAD KE) AVAILABLE ON PAGE NO. 34 TO 40 OF THE PAPER BOOK AND HENCE , WE DO NOT 5 FIND ANY REASON TO TAKE A CONTRARY VIEW IN THE PRESENT CASE. RESPECTFULLY FOLLOWING THIS JUDGMENT OF HON'BLE ORISSA HIGH COURT, FOLLOWED BY CIT(A), WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A). 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ABOVE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 /07 /2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR