Shri Dipakbhai H.Amarseda, Surat V. The Income tax Officer,Ward-9(1), Surat

ITA 694/AHD/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2042 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-01-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: AARTI N SHAH
• Keywords: Gift
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, JM ANDSHRI A. MOHAN ALANKAMONY, AM) ITA NO.694/AHD/2010 A. Y.: 2003-04 DEEPAKBHAI H. AMARSEDA, 64, THAKORDWAR SOCIETY, NEAR SARDAR CHOWK, VARACHHA ROAD, SURAT PA NO. AAYPA 0652 Q VS THE INCOME TAX OFFICER, WARD 9(1), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY MISS AARTI N. SHAH, AR RESPONDENT BY SHRI D. K. SINGH, SR. DR DATE OF HEARING: 05-03-20123 DATE OF PRONOUNCEMENT: 10-05-2013 O R D E R PER A. MOHAN ALANKAMONY: THIS APPEAL IS PREFERRED BY THE ASSESSEE BEING AGGRIEVED BY THE ORDER OF THE LE ARNED CIT(A)-V, SURAT IN APPEAL NO. CAS-V/89/08-09 DATED 21-12-2009 , FOR THE ASSESSMENT YEAR 2003-04, PASSED U/S 250 READ WITH S ECTION 144 AND 147 OF THE INCOME TAX ACT. 2. THE ASSESSEE IN HIS APPEAL RAISED THREE GROUNDS WHEREIN GROUND NO.1 IS NOT PRESSED AND THE SAME IS DISMISSE D AS SUCH. GROUND NO.3 OF THE APPEAL IS GENERAL IN NATURE AND DOES NOT SURVIVE ITA NO.694/AHD/2010 (AY: 2003-04) DIPAKBHAI H. AMARSEDA VS ITO, W-9(1) SURAT 2 FOR ADJUDICATION. SOLE GROUND NO.2 OF THE ASSESSEE S APPEAL SURVIVING FOR ADJUDICATION IS REPRODUCED HEREIN UNDER:- 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-V, SURAT HAS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE BY CON FIRMING THE ADDITION BY ASSESSING OFFICER OF RS.2,30,858/- ON A CCOUNT OF RE- ESTIMATION OF PROFIT. 3. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNA L VIDE ORDER DATED 26-12-2011 FOR DEFAULT IN APPEARANCE BY THE A SSESSEE. HOWEVER, THE MATTER WAS RECALLED VIDE ORDER OF THE TRIBUNAL DATED 06-07-2012 BY ALLOWING M. A. NO.61/AHD/2012 FILED B Y THE ASSESSEE. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2003-04 ON 15-03- 2004 DECLARING AN INCOME OF RS.53,820/-. THE CASE W AS REOPENED U/S 148 OF THE ACT PURSUANT TO SURVEY CONDUCTED ON SHRI PANKAJ DANAWALA (C.A.) WHEREBY IT WAS FOUND THAT THE ASSES SEE WAS CREATING FICTITIOUS CAPITAL BY INFLATING OPENING CA PITAL AND SHOWING AGRICULTURAL INCOME, RECEIPT OF SMALL GIFTS, INTERE ST, BROKERAGE AND COMMISSION ETC. FOR VARIOUS SUCCESSIVE YEARS. SUBSE QUENTLY, IT WAS FOUND THAT THE BENEFICIARY TO SUCH CAPITAL DECLARED BY THE ASSESSEE WAS SHRI MUKESH AMARSEDA. SHRI PANKAJ DANAWALA (C.A .) ADMITTED DURING THE COURSE OF SURVEY THAT HE WAS MAINTAINING ABOUT 163 FILES LIKE THE CASE OF THE ASSESSEE FOR THE BENEFIT OF MO HAN DHANJI PATEL GROUP/MUKESH AMARSEDA GROUP. BASED ON THESE FACTS T HE LEARNED AO MADE AN ADDITION OF RS.2,30,858/- IN THE HANDS O F THE ASSESSEE PROTECTIVELY AND SUBSTANTIVELY IN THE HANDS OF SHRI MUKESH AMARSEDA. ITA NO.694/AHD/2010 (AY: 2003-04) DIPAKBHAI H. AMARSEDA VS ITO, W-9(1) SURAT 3 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARN ED CIT(A) WHO IN TURN DISMISSED THE APPEAL OF THE ASSESSEE WITH T HE FOLLOWING OBSERVATIONS:- 5.1 WITH REGARD TO GROUND NO.2 &3, I HAVE PERUSED THE SUBMISSION OF THE APPELLANT AND VIEWS OF THE ASSESSING OFFICER . IT IS A FACT THAT THE AMOUNT OF RS.2,30,586/- HAS BEEN ADDED ON PROTE CTIVE BASIS IN THE HANDS OF THE ASSESSEE AND THE SAME IS REQUIRED TO BE SUBSTANTIVELY IN THE HANDS OF THE BENEFICIARY AS ME NTIONED IN PARA 5 OF THE ASSESSMENT ORDER. ONCE THE AMOUNT IS SUBSTAN TIVELY ASSESSED IN THE HANDS OF THE BENEFICIARY, THE ASSESSEE WILL BE RELIEVED OF THE PROTECTIVE ADDITION AND HIS GRIEVANCE WILL NO LONGE R REMAIN. THEREFORE, AT THIS STAGE, I DO NOT FIND IT PROPER T O INTERFERE WITH THE ORDER OF THE ASSESSING OFFICER. THE APPEAL IS THERE FORE DISMISSED. 6. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A), TH E ASSESSEE IS NOW IN APPEAL BEFORE US. THE ONLY SUBMISSION ADVANC ED BY THE LEARNED AR BEFORE US WAS THAT SINCE THE LEARNED AO HAD SUBSTANTIVELY MADE ADDITION IN THE HANDS OF SHRI MU KESH AMARSEDA, THE ADDITION MADE PROTECTIVELY IN THE HANDS OF THE ASSESSEE WILL NOT SURVIVE. THE LEARNED DR RELIED ON THE ORDER OF THE LEARNED AO AND THE LEARNED CIT(A) BEFORE US. 7. AFTER HEARING BOTH THE SIDES AND PERUSING THE MA TERIALS ON RECORD WE FIND THAT IT IS PREMATURE TO ADJUDICATE O N THE SUBMISSION OF THE LEARNED AR AT THIS STAGE. ONCE, THE CASE REACHE S FINALITY WITH RESPECT TO ADDITION MADE SUBSTANTIVELY IN THE HANDS OF SHRI MUKESH AMARSEDA, CONSEQUENTLY, THE ADDITION MADE PROTECTIV ELY IN THE HANDS OF THE ASSESSEE WOULD NOT SURVIVE. FURTHER, FROM TH E SURVEY CONDUCTED ON SHRI PANKAJ DANAWALA (C.A.) IT IS EVID ENT THAT THE ASSESSEE WAS A CONDUIT TO RAISE CAPITAL FOR VARIOUS OTHER PARTIES AS STATED HEREIN ABOVE. IN THESE CIRCUMSTANCES, WE DO NOT FIND ANY ITA NO.694/AHD/2010 (AY: 2003-04) DIPAKBHAI H. AMARSEDA VS ITO, W-9(1) SURAT 4 INFIRMITY IN THE ORDER OF THE LEARNED CIT(A), HENCE , WE HEREBY CONFIRM THE SAME. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10-05-2013 SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER A SST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: DIRECT ON COMPUTER 02-04-13/0 6-05-2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 02-04-2013/06-05-2013 OTHER MEMB ER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR.P.S ./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: