DCIT 24(3), MUMBAI V. AMBALAL KISHORBHAI PATEL, MUMBAI

ITA 3909/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3352 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 29-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MORYA PRATAP
• Assessee Lawyers: HARESH P KENIA
• Keywords: Gift; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI R.C.SHARMA (AM) AND SHRI RAM LAL NEGI ( JM) ITA NO. 3909/MUM/2014 ASSESSMENT YEAR: 2010-11 THE D CIT, 24 ( 3 ) , ROOM NO. 701,C-11, 7 TH FLOOR, B.K.C., BANDRA (E), MUMBAI- 400051. VS. MR. AMBALAL KISHORBHAI PATEL, 2 ND FLOOR, PRABHU NIWAS, 99, JAWAHAR NAGAR, GOREGAON (W), MUMBAI- 400063. PAN- AEQPP0530E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. MORYA PRATAP RESPONDENT BY : SHRI . SANJAY PARIKH & HARESH P. KENIA. DATE OF HEARING: 02/06/2016 DATE OF PRONOUNCEMENT: 02/06/2016 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST ORDER DATED 21/03/2014 PASSED BY THE LD CIT(A)-34, MUMBAI FOR THE ASSESSME NT YEAR 2010-11. 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER O N FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 12,75,000/- MADE ON ACCOUNT OF GIFT RECEIVED AND ADJUDICATING T HE APPEAL IN FAVOUR OF THE ASSESSEE WHEN THE GIFT RECEIVED FORM HUF CANNOT BE TREATED AS EXEMPT AS HUF DOES NOT COMPRISE IN THE D EFINITION OF CLOSE 2 ITA NO. 3909/MUM/2014 ASSESSMENT YEAR: 2010-11 RELATIVE AS PER THE PROVISIONS OF SECTION 56(2)(V) OF THE ACT AND THUS MISINTERPRETING THE UNAMBIGUOUS LANGUAGE OF THE AF ORESAID SECTION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 19 ,87,065/- MADE ON ACCOUNT OF EXCESS INTEREST PAID IN TERM LOAN IGNORI NG THE FACT THAT THE ASSESSEE HAD PAID HIGHER INTEREST ON LOANS TAKEN AS COMPARED TO THE INTEREST RECEIVED AT LOWER RATES. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS CASE IS BELOW 10,00,000/- THE ADDITION OF R S. 19,87,065/- MADE ON ACCOUNT OF GIFT RECEIVED. HENCE, AS PER THE CBDT CI RCULAR NO. 21 OF 2015, DATED 10/12/2015, THE PRESENT APPEAL IS NOT MAINTAINABLE. 4. THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT I N DEPARTMENTS APPEAL IS BELOW 10 LAKHS, WE FIND THAT THE ISSUE RAISED IN AP PEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE CIRCU LAR. SINCE, IT HAS BEEN SPECIFICALLY CLARIFIED IN THE CIRCULAR AFORESAID TH AT THE INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS; THE PRE SENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMIS S THE SAME IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JUNE, 2016 SD/- SD/- ( R.C.SHARMA ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 02/06/2016 3 ITA NO. 3909/MUM/2014 ASSESSMENT YEAR: 2010-11 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA