RAJESH P. KAPOOR, MUMBAI V. ITO 7(3)(2), MUMBAI

ITA 3959/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0211 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: C H BANDI
• Keywords: Gift; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.3959/M/2016 ASSESSMENT YEAR: 2009-10 SHRI RAJESH P. KAPOOR, NITCO HOUSE, 1 ST FLOOR, RECONDO ESTATE, BMC COMPOUND, S.K. AHIRE MARG, WORLI, MUMBAI 400 030 PAN: AFRPK4255P VS. INCOME TAX OFFICER-7(3)(2), [NOW ITO-8(3)(2)], AAYAKAR BHAVAN, MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI C.H. BANDI, A.R. REVENUE BY : SHRI PURUSHOTTAM KUMAR, D.R. DATE OF HEARING : 27.04.2017 DATE OF PRONOUNCEMENT : 28.06.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 29.04.2016 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2009-10. 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED THE RETURN OF INCOME OF RS.1,08,050/-. THE ASSESSING OFFICER (HE REINAFTER REFERRED TO AS THE AO) HAS MADE THE ADDITION OF RS.20,62,300/- ON ACCO UNT OF GIFT RECEIVED FROM MR. SANJEEV KAPOOR AND ALSO MADE THE ADDITION OF RS .1,32,200/- ON ACCOUNT OF INCOME FROM HOUSE PROPERTY. THE ASSESSEE HAS CLAIM ED THAT ASSESSEE HAS RECEIVED GIFT FROM HIS BROTHER AND IT IS EXEMPTED F ROM TAX UNDER SECTION 56(2)(V) OF THE ACT. BUT THE AO AND THE LD. CIT(A) HAVE DISALLOWED THE SAME. THEREFORE, ASSESSEE IS IN APPEAL BEFORE US. ITA NO.3959/M/2016 SHRI RAJESH P. KAPOOR 2 2. DURING THE COURSE OF HEARING, THE LD. A.R. SUBMI TTED THAT THE ASSESSEE HAS RECEIVED THE GIFT THROUGH COMPANY M/S. AGRO IMP EX LTD. AND CLAIMED EXEMPTION UNDER SECTION 56(2)(V) OF THE ACT. THE A SSESSEE HAS SUBMITTED MAIL EXCHANGED BETWEEN REMITTER AND HIS BROTHER AND SUBM ITTED THAT THE CONFIRMATION WAS RECEIVED THROUGH BANKING CHANNEL, THEREFORE, IT MAY BE ALLOWED. 3. THE LD. D.R. OBJECTED TO IT ON THE GROUND THAT T HE LD. CIT(A) HAS SPECIFICALLY HELD THAT ASSESSEE HAS GIVEN A REMITTA NCE CERTIFICATE WHEREIN IT IS SHOWN AS PERSONAL GIFT FROM THE MR. SANJEEV KAPOOR AND THE SAME IS ADDED BY HAND AND STAMPED. THEREFORE, CERTIFICATE WILL NOT BE OF HELPFUL TO THE ASSESSEE. THEREFORE, ASSESSEE DID NOT PRODUCE ANY EVIDENCE BE FORE TRIBUNAL TO SUBSTANTIATE HIS CLAIM. THEREFORE, APPEAL MAY BE D ISMISSED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND TH AT IT IS FACT ON THE RECORD THAT THE COMPANY M/S. AGRO IMPEX LTD. HAS TRANSFERRED TH E AMOUNT TO THE ASSESSEE. WE ARE OF THE VIEW THAT THE ASSESSEE HAS SUBMITTED THE REMITTANCE CERTIFICATE WHICH IS SHOWN AS PERSONAL GIFT AND DONATION FROM H IS BROTHER MR. SANJEEV KAPOOR IS ADDED BY HAND AND STAMP, THEREFORE IT REQ UIRES CLARIFICATION AT THE STAGE OF AO. THEREFORE, WE REVERSE THE FINDING OF LD. CIT(A) AND RESTORE THIS MATTER BACK TO THE FILE OF AO. THE ASSESSEE IS DIR ECTED TO PRODUCE THE EVIDENCE REGARDING THE GIFT WHICH WAS GIVEN BY HIS BROTHER M R. SANJEEV KAPOOR TO THE ASSESSEE. THE REMITTANCE CERTIFICATE WILL NOT BE E NOUGH FOR CONSIDERING THAT AMOUNT HAS BEEN GIVEN BY HIS BROTHER. THEREFORE, A O IS DIRECTED TO CONSIDER THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE A ND DECIDE THE MATTER AFRESH AS PER LAW. GROUND NO.2 5. IN RESPECT OF GROUND NO.2, ASSESSEE SUBMITTED TH AT ASSESSEE HAD 15% SHARE JOINTLY WITH HIS FAMILY MEMBERS IN A FLAT. T HE ENTIRE FLAT WAS GIFTED TO HIS ELDER SISTER AND ASSESSEE HAS NO INTEREST IN THE SA ID FLAT. THE COPY OF GIFT DEED ITA NO.3959/M/2016 SHRI RAJESH P. KAPOOR 3 DECLARATION BY THE ASSESSEE WAS ALSO SUBMITTED. AO DID NOT ACCEPT THE SAME AND MADE THE ADDITION AND LD. CIT(A) ALSO CONFIRMED THE SAME. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND TH AT THE PROPERTY WAS JOINTLY OWNED BY HIS SISTER AND HIM. ASSESSEE HAS GIFTED H IS SHARE TO HIS SISTER. ASSESSEE HAS FILED THE AFFIDAVIT AND ASSESSEE HAS S TATED BEFORE US THAT HE DID REMAIN AS THE OWNER, THEREFORE, NO ADDITION IS CALL ED FOR. HENCE, WE DELETE THE SAME. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 28.06.2017. SD/- SD/- (RAJESH KUMAR) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 28.06.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.