ANUJ S. SHAH, MUMBAI V. ITO 16(2)(4), MUMBAI

ITA 377/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2439 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 16-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI RAMCHANDRAN
• Assessee Lawyers: KSHIPRA SINGHVI
• Keywords: Gift
• Section: 143(3); 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH , MUMBAI BEFORE SRI MAHAVIR SINGH, J M AND SRI N. K. PRADHAN , AM ITA NO . 37 7 /MUM/2014 (A.Y: 2009 - 10 ) SHRI ANUJ S. SHAH , 6A, 1 ST FLOOR, ANAND MAHAL, BABULNATH ROAD, MUMBAI 400 007 PAN:BJPDS 3198C VS. THE INCOME TAX OFFICER, RANGE 16(2 ) (4), MUMBAI - 400 007 APPELLANT .. RESPONDENT APPELLANT BY .. MS. KSHIPRA SINGHVI, AR RESPONDENT BY .. SHRI RAVI RAMCHANDRAN, SR. DR DATE OF HEARING .. 1 4 - 10 - 2016 DATE OF PRONOUNCEMENT .. 14 - 10 - 2016 O R D E R PER MAHAVIR SINGH , JM : THIS APPEAL BY THE ASSESSEE IS ARISING OU T OF THE ORDER OF THE CIT (A) - 2 7 , MUMBAI IN APPEAL NO. CIT (A) - 2 7 / 16(2 ) (4)/ 4 61 /2011 - 12 DATE D 28 - 10 - 2013 . ASSESSMENT WAS FRAMED BY THE I TO, WARD 16(2 )(4), MUMBAI FOR THE ASSESSMENT YEAR 2009 - 10 VID E HIS ORDER DATED 23 - 12 - 2011 U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) . 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF THE CIT (A) IN CONFIRMING THE ACTION OF THE AO IN ASSESSING THE SALE CONSIDERATION OF T HE GOLD BARS AS INCOME FROM OTHER SOURCES AS AGAINST THE CLAIM OF THE ASSESSEE AS LONG TERM CAPITAL GAIN. 3. AT THE OUTSET, IT IS NOTICED THAT THE ASSESSEE WHILE FILING MEMO OF APPEAL HAS FILED INCOMPLETE ASSESSMENT ORDER I.E. PAGE 4 OF THE ASSESSMENT OR DER IS MISSING. WHEN QUERY WAS PUT TO THE LEARNED COUNSEL OF THE ASSESSEE, SHE FILED A COPY OF LETTER NO.ITO 19 (1) (1)/RTI/ANUJ S SHAH/ 2016 - 17 DATED 10 - 05 - 2010 WHEREBY THE ITO, WARD - 19 (1) (1), MUMBAI HAS SUPPLIED INFORMATION UNDER RIGHT TO INFORMATION ACT ON THE APPLICATION OF THE ASSESSEE WHEREBY HE HAS AGAIN SUPPLIED INCOMPLETE ASSESSMENT ORDER I.E. PAGE 4 OF THE ASSESSMENT WAS MISSING. WHEN THE RECORDS WERE CALLED FOR FROM THE ASSESSMENT ORDER ALSO, IT IS NOTICED THAT THE RELEVANT PAGE 4 WHEREB Y FIND ING OF THE A O IS RECORDED IS ALSO MISSING. IN SUCH CIRCUMSTANCES , WE HAVE PROCEEDED TO DECIDE THE ISSUE IN THE ABSENCE OF ITA NO. 37 7 /MUM/20 1 4 2 FINDINGS OF THE AO , WHICH IS ON PAGE 4 AND WHICH IS MISSING, BUT BASED ON MATERIAL AVAILABLE BEFORE US. 4. BRIEF FACTS LEADING TO TH E ABOVE ISSUE ARE THAT THE ASSESSEE CLAIMED TO HAVE SOLD GOLD BAR OF 948 GRAMS FOR A TOTAL CONSIDERATION OF RS.14.22 LACS VIDE SALE BILL ISSUED BY SHREE DARSHAN DATED 24 - 03 - 2009. THE ASSES SEE CLAIMED THAT THIS GOLD BAR W AS GIFTED BY HIS GRANDFATHER SHRI IN DRAVADAN M. SHAH ON THE OCCASION OF HI S BIRTH IN THE YEAR 1990. THE A O HAS NOT BELIEVED THE EXPLANATION OF THE ASSESSEE AND TREATED THE CONSIDERATION RECEIVED FROM SALE OF GOLD BAR AS INCOME FROM OTHER SOURCES AND ASSESSED THE SAME ACCORDINGLY. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT (A) WHO ALSO REJECTED THE CONTENTIONS OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE COULD NOT FILE THE EVIDENCE BY WAY OF WEALTH TAX RETURN OF HIS GRANDFATHER SHOWING POSSESSION OF THE GOLD BAR, WHICH HE COULD HAVE GIFTED TO HIM . ACCORDING TO HIM, THE INCOME TAX RETURNS OF THE ASSESSEE ALONG WITH COPY OF CAPITAL ACCOUNT AND THAT ALSO WRITTEN BY HAND AND WITHOUT INCOME TAX DEPARTMENTS SEAL WAS FILED, WHICH ACCORDING HIM IS IN THE NATURE OF SELF - SERVING DOCUMENTS . ACCORDINGLY, HE REJECTED THE EXPLANATION OF THE ASSESSEE AND CONFIRMED THE ADDITION. AGGRIEVED, NOW THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. B EFORE US AS WELL AS BEFORE THE LOWER AUTHORITIES, THE ASSESSEE HAS FILED COPY OF STATEMENT OF ACCOUNT OF BANK OF BARODA O F SHRI INDRAVADAN M. SHAH AND MRS. CHANDRIKA I . SHAH, GRANDFATHER AND GRANDMOTHER OF THE ASSESSEE IN WHOSE NAMES APPROXIMATELY 75 NOTES OF 1000 DENOMINATION WAS DECLARED WITH THE GOVERNMENT IN 1978 - 79, WHICH CLEARLY SHOWS THAT THEY WERE HAVING SAVINGS TO THE EXTENT OF RS.75,000/ - AND INVESTE D IN PURCHASE OF THESE GOLD BAR , WHICH WAS SUBSEQUENTLY GIFTED TO THE ASSESSEE IN 1990 AT THE TIME OF HIS BIRTH. THE ASSESSEE ALSO FILED COPY OF ACKNOWLEDGEMENT OF RETURN FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 1990 - 91 WHEN HE WAS A MINOR AND THE ASSESSEE CONTINUED FILING HIS RETURN OF INCOME FOR ASSESSMENT YEAR 1991 - 92 AND 1992 - 93. ALONG WITH THESE R ETURNS, COPY OF CAPITAL ACCOUNT WAS FILED IN WHICH THE ASSESSEE HAS DECLARED THE GOLD BAR AND THIS PROOF HAS NOT BEEN NEGATED BY THE REVENUE. ITA NO. 37 7 /MUM/20 1 4 3 THE LEARNED COUNSEL FOR THE ASSESSEE ARGUED THAT AFTER 1992 - 93, THE ASSESSEES INCOME WAS CLUBBED WITH THE PARENTS BY IMPLICATION OF THE PROVISIONS OF SECTION 64 (1A) OF THE ACT AND THE ASSESSMENTS WERE FRAMED ACCORDINGLY. THE ASSESSEES GRANDMOTHER ALSO FILED A LETTER DATED 05 - 11 - 2011 STATING AS UNDER: - THIS IS TO CERTIFY THAT MR. INDRAVADAN SHAH GIFTED GOLD BAR OF TO HIS GRAND SONS AND DAUGHTERS ON VARIOUS OCCASIONS OF THEIR BIRTH DAYS. OUT OF THEM, GOLD BAR WEIGHING 948.00 GRAMS WAS GIFTED BY HIM ON THE OCCASION OF HIS BIRTH IN THE YEAR 1990. FURTHER THIS IS CERTIFIED THAT SAME GOLD WAS PROCURED BY MR. INDRAVADAN SHAH OUT OF HIS SAVINGS. SINCE MR. INDRAVADAN SHAH IS NO MORE SO IT IS NOT FEASIBLE TO PRODUCE INVOICE OF THE SAME FOR VERIFICATION. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THESE EVIDENCES ARE SUFFICIENT TO P ROVE THE POSSESSION OF GOLD BAR WHICH WERE EVENTUALLY SOLD THROUGH ONE SHREE DARSHAN ON 24 - 03 - 2009 AND THE SALE PROCEED WAS CREDITED IN THE ASSESSEES BANK ACCOUNT MAINTAINED WITH BANK OF BARODA ON 28 - 03 - 2009 AMOUNTING TO RS.14.22 LACS. 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE A RE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ABLE TO PROVE THE POSSESSION OF THE GOLD BAR AS HE HAS RECEIVED THE SAME FROM HIS GRANDFATHER AND THE SAME IS DECLARED IN THE INCOME TAX RETURNS FOR ASSESSMENT YEARS 1990 - 91 TO 1992 - 93 ALONG WITH CAPITAL AC COUNTS ATTACHED WITH THESE RETURNS. THE ASSESSEE IS ALSO ABL E TO PROVE THE SALE OF GOLD BAR AND THESE EVIDENCES HAVE NOT BEEN NEGATED BY THE REVENUE. IN SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE HAS RIGHTLY DECLARED THE CONS IDERATION FROM SA LE OF GOLD BAR AS LONG TERM CAPITAL GAIN. WE, ACCORDINGLY, REVERSE THE ORDERS OF THE LOWER AUTHORITIES AND ALLOW THIS ISSUE OF THE ASSESSEES APPEAL. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 4 - 10 - 2016 . SD/ - (N. K. PRADHAN ) ACCONTANT MEMBER MUMBAI, DATED: 14 - 10 - 2016 LAKSHMIKANTA DEKA/SR.PS SD/ - ( MAHAVIR SINGH ) JUDICI AL MEMBER ITA NO. 37 7 /MUM/20 1 4 4 BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI SR. NO. PAR TICULARS DATE INITIALS MEMBER CONCERNED 1 DICTATION GIVEN ON 19 / 1 0/16 LK DEKA JM 2 DRAFT PLACED BEFORE AUTHOR 20 /10/16 / 24/10/16 3 DRAFT PROPOSED/PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COM ES TO THE SR.PS 6 KEPT FOR PRONOUNCEMENT ON 7 FILE SENT TO THE BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT (A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//