ITO, Kollam V. Sri Shahruddin, Kollam

ITA 489/COCH/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52338 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 07-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Keywords: Gift; Question of law; Tax effect

Judgement Text

1 I.T.A. NO 489/COCH/2009 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) & SHRI SANJAY ARORA (AM) ITA NO.489/COCH/2009 (ASSESSMENT YEAR 2005-06) THE ITO, WD.3 VS SHRI SHAHRUDDIN KOLLAM PROP M/S P KOCHHASSAN KUNJU RICE MERCHANTS, BIG BAZAR, KOLLAM PAN : BDXPS4128Q (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.R. SENAPATI RESPONDENT BY : NONE DATE OF HEARING : 30-12-2011 DATE OF PRONOUNCEMENT : 30-12-2011 O R D E R PER N.R.S. GANESAN (JM) THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM DATED 0 4-05-2009 AND PERTAINS TO ASSESSMENT YEAR 2005-06. 2. NO ONE APPEARED FOR THE ASSESSEE WHEN THE APPEAL WAS TAKEN UP FOR HEARING EVEN THOUGH THE DATE OF HEARING WAS WITHIN THE KNOWLEDGE OF THE ASSESSEE. THEREFORE, WE HEARD THE LD.DR AND PROCEE D TO DISPOSE OF THE APPEAL ON MERIT. 2 I.T.A. NO 489/COCH/2009 3. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDIT ION WITH REGARD TO GIFT RECEIVED BY THE ASSESSEE. DURING THE COURSE OF HEA RING, THE LD.DR VERY FAIRLY SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPE AL IS LESS THAN RS.2 LAKHS. HOWEVER, THE LD.DR SUBMITTED THAT THERE WAS SUBSTAN TIAL QUESTION OF LAW INVOLVED IN THIS APPEAL. THEREFORE, IT IS TO BE CO NSIDERED ON MERIT. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS.2 LAKHS. THE ISSUE ON MERIT IS WITH REGARD TO GIFT RECEIVED BY THE ASSESSEE. IN RESPECT OF THE GIFT, IT IS FOR THE ASSESSEE TO ESTABLISH THE IDENTITY OF THE DONOR, CREDITWORTHINE SS OF THE DONOR AND GENUINENESS OF THE TRANSACTION. ALL THESE THREE FA CTORS NEEDS TO BE FACTUALLY EXAMINED AND THE ASSESSING OFFICER HAS TO SATISFY H IMSELF. THE COMMISSIONER OF INCOME-TAX(A), AFTER EXAMINATION OF THE MATERIAL AVAILABLE ON RECORD FOUND THAT THE GIFT WAS GENUINE. WE DO NOT FIND ANY SUBS TANTIAL QUESTION OF LAW WITH REGARD TO THE FACTUAL SATISFACTION OF THE COMM ISSIONER OF INCOME-TAX(A) IN RESPECT OF THE GIFT RECEIVED BY THE ASSESSEE. T HEREFORE, WE DO NOT FIND ANY JUSTIFICATION IN THE CONTENTION OF THE LD.DR THAT TH ERE IS A SUBSTANTIAL QUESTION OF LAW INVOLVED AND THE APPEAL HAS TO BE DISPOSED O N MERIT. IN VIEW OF THE CIRCULAR OF THE CBDT INSTRUCTING ALL THEIR OFFICERS NOT TO FILE ANY APPEAL BEFORE THIS TRIBUNAL WHEREVER THE TAX EFFECT IS LESS THAN RS.2 LAKHS, THIS APPEAL OUGHT NOT HAVE BEEN FILED BY THE REVENUE. THEREFORE, THI S APPEAL FILED BY THE DEPARTMENT IS CONTRARY TO THE INSTRUCTIONS ISSUED B Y THE CBDT IN EXERCISE OF ITS ADMINISTRATIVE POWERS U/S 119 OF THE INCOME-TAX ACT. SINCE INSTRUCTION 3 I.T.A. NO 489/COCH/2009 ISSUED BY THE CBDT U/S 119 OF THE ACT IS BINDING ON ITS OFFICERS, IN OUR OPINION, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE . 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF DECEMBER, 2011. SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 30 TH DECEMBER, 2011 PK/- COPY TO: 1. ITO, WD.3, KOLLAM 2. SHRI SHAHURUDDIN, PROP M/S P KOCHHASSAN KUNJU, RICE MERCHANTS, BIG BAZAR, KOLLAM 3. THE COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH 4 I.T.A. NO 489/COCH/2009 DATE OF DICTATION : 30-12-2011 DATE OF PLACING THE DRAFT ORDER BEFORE THE MEMBER : 30- 12-2011 DATE OF PLACING THE PROPOSED ORDER BEFORE THE OTHER MEMBER : DATE OF RETURN OF THE ORDER TO PS AFTER APPROVAL : DATE OF PRONOUNCEMENT : DATE ON WHICH THE FILE ALONG WITH THE ORDER SENT TO BC :