INCOME TAX OFFICER 19(2)(2), MUMBAI V. VIPUL R. SHAH HUF, MUMBAI

ITA 5647/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55641 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 19-10-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 16-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE
• Keywords: Gift; Opportunity of being heard; Additional evidence
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F,MUMBAI BEFORE SHRI R.S. SYAL (AM) & SHRI V. DURGA RAO (JM ) I.T.A.NO.5647/MUM/2009 (A.Y. 2004-05) INCOME-TAX OFFICER-19(2)(2), R.NO.309, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400012. VS. VIPUL R. SHAH (HUF), B-503, PRIME AVENUE, NANAVATI HOSPITAL, S.V. ROAD, VILE PARLE (W), MUMBAI-400 056. PAN: AABHV7348P APPELLANT RESPONDENT APPELLANT BY SHRI SHANTAM BOSE. RESPONDENT BY SHRI P ARESH SHAPARIA. DATE OF HEARING 19 - 10 - 2011 DATE OF PRONOUNCEMENT 25 - 10 - 2011 O R D E R PER R.S. SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 17-08-2009 IN RELATION TO THE ASSESSMENT YEAR 20 04-05. 2. THE REVENUE IS AGGRIEVED AGAINST THE DELETION OF ADDITION OF RS.8,09,618/- MADE BY THE AO U/S. 68 OF THE ACT ON ACCOUNT OF GI FT RECEIVED BY THE ASSESSEE FROM MRS. PARIMAL S. BHAYANI BY ENTERTAINING ADDITI ONAL EVIDENCE IN VIOLATION OF RULE 46A OF I.T. RULES. 3. SHORN OFF UNNECESSARY DETAILS, IT IS NOTICED THA T THE ASSESSEE CREDITED ITS CAPITAL ACCOUNT WITH A SUM OF RS.8,09,618/- TOWARDS GIFT RECEIVED FROM MRS. ITA NO.5647/MUM/2009 VIPUL R. SHAH (HUF). 2 PARIMAL S. BHAYANI, NEW YORK, USA. NO EVIDENCE, WOR TH THE NAME, WAS ADDUCED BEFORE THE AO IN SUPPORT OF THE GENUINENESS OF THE GIFT WHICH RESULTED INTO MAKING OF ADDITION U/S.68 OF THE ACT. THE LD. CIT(A ) ADMITTED ADDITIONAL EVIDENCE AND WITHOUT COMPLYING WITH THE PRESCRIPTION OF RULE 46A, DELETED THE SAID ADDITION. IT HAS BEEN FAIRLY ADMITTED BY THE LD. A. R. THAT THE ADDITIONAL EVIDENCE PRODUCED BEFORE THE LD. CIT(A) WAS NEITHER FURNISHE D TO THE AO NOR THE LD. CIT(A) CALLED FOR COMMENTS OF THE AO ON THE ADDITIONAL EVI DENCE SUBMITTED BEFORE HIM FOR THE FIRST TIME. WITHOUT GOING INTO THE MERITS O F THE SUSTAINABILITY OR OTHERWISE OF THE ADDITION, WE ARE OF THE CONSIDERED OPINION T HAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF AO FOR A FRESH DECISION AS PER LAW AFTE R ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLES S TO SAY THE ASSESSEE WILL BE AT LIBERTY TO LEAD ANY EVIDENCE IN ITS FAVOUR BEFOR E THE AO IN THE FRESH ROUND OF PROCEEDINGS. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THE 25TH DAY OF OCTOBER, 2011. SD/- SD/- (V. DURGA RAO) (R. S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 25TH OCTOBER , 2011. NG: COPY TO : 1. DEPARTMENT. 2.ASSESSEE. 3 CIT(A)-XIX,MUMBAI. 4 CIT,CITY-19,MUMBAI. 5.DR,F BENCH,MUMBAI. ITA NO.5647/MUM/2009 VIPUL R. SHAH (HUF). 3 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST. REGISTRAR, ITAT, MUMBAI. ITA NO.5647/MUM/2009 VIPUL R. SHAH (HUF). 4 DETAILS DATE INITIALS DESIGN ATION 1 . DRAFT DICTATED ON 1 9 - 1 0 - 1 1 SR.PS/ 2 . DRAFT PLACED BEFORE AUTHOR 20 - 1 0 - 1 1 SR.PS/ 3 . DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 . DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8 . DATE ON WHICH THE FIL E GOES TO THE HEAD CLERK 9 . DATE O N WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER *