Shri Harshit P.Acharya(HUF), Ahmedabad V. The Income tax Officer, Ward-9(3), Ahmedabad

ITA 701/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9820 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-09-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 25-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Assessee Lawyers: S N DIVETIA
• Keywords: Gift; Income from undisclosed sources; Set aside
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABA D (BEFORE HON'BLE SHRI G.D. AGRAWAL, V.P.(AZ) & HON BLE SHRI T.K. SHARMA, J.M. ) I.T.A. NO. 701/AHD./2008 ASSESSMENT YEAR : 2004-2005 HARSHIT P. ACHARYA (HUF), AHMEDABAD -VS.- INCOME TAX OFFICER, WARD-9(3), AHMEDABAD (PAN : AACHH 1646 F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.N. DIVETIA RESPONDENT BY : SHRI ALOK JOHRI, CIT, D.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 30.11.2007 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XV, AHMEDABAD CONFIRMING THE ADDITION OF RS.16,38,001/- BEING GIFT RECEIVED BY THE ASSESSEE FROM DR. SHOBHANA ALIAS DR. SONIYA PATEL, A PRACTICING AYURVEDIC DOCTOR SETTLED IN USA FOR THE ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S A HUF AS KARTA IS A M.D. DOCTOR BY PROFESSION PRACTICING ON ALLOPATHIC AND AYURVEDIC S IDE. FOR THE ASSESSMENT YEAR UNDER APPEAL, IT FILED THE RETURN OF INCOME ON 20.10.2004 DECLARING INCOME FROM SPECULATION AND INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES AT RS.1,37,110 /-. THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 143(3) ON 31.10.2006, WHER EIN HE TREATED THE GIFT AMOUNT OF RS.16,38,001/- RECEIVED BY THE ASSESSEE FROM DR. SH OBHANA ALIAS DR. SONIYA PATEL AS INCOME FROM UNDISCLOSED SOURCES UNDER SECTION 68 OF THE IN COME TAX ACT, 1961. IN PARA 3.4 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS MENTION ED THAT VIDE NOTICE DATED 28.07.2006, THE ASSESSEE WAS REQUESTED TO FILE THE FOLLOWING DETAIL S :- (1) DETAILS OF GIFT RECEIVED IN EARLIER YEARS OR IN SUBSEQUENT YEARS FROM SOBHNA ALIAS SONIA PATEL. (2) DETAILS OF GIFT GIVEN BY SOBHNA ALIAS SONIA PAT EL TO HIS RELATIVES IN CURRENT YEAR AND LAST TWO YEARS. 2 ITA NO. 701/AHD/2008 (3) ANNUAL EARNINGS OF SOBHANA ALIAS SONIA PATEL FO R CURRENT YEAR AND LAST TWO YEARS. THE AFORESAID DETAILS WERE NOT FURNISHED BEFORE THE ASSESSING OFFICER. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER ALSO MENTIONED THAT GENUINENE SS OF THE GIFT TRANSACTION IS NOT ESTABLISHED BY THE ASSESSEE BY ADDUCING COGENT EVIDENCE SUCH AS GIFT DEED. ONLY DECLARATION ON A PLAIN PAPER WAS FILED. APART FROM THIS, THE ASSESSING OFFICER H AS MENTIONED THAT THE DONOR WAS NOT PRODUCED FOR CROSS EXAMINATION TO VERIFY THE GENUINENESS OF THE SO-CALLED FOREIGN GIFT. 3. ON APPEAL, IN THE IMPUGNED ORDER THE LEARNED COM MISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ADDITION OF RS.16,38,001/- MADE BY TH E ASSESSING OFFICER BY TREATING THE GIFT ALLEGED TO BE RECEIVED FROM DR. SHOBHANA ALIAS DR. SONIYA PATEL, A PRACTICING AYURVEDIC DOCTOR SETTLED IN USA. AGGRIEVED BY THE ORDER OF LEARNED C OMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF A SSESSEE SHRI S.N. DIVETIA, LD. COUNSEL APPEARED AND CONTENDED THAT AT THE RELEVANT TIME, T HE DONOR NAMELY DR. SHOBHANA ALIAS DR. SONIYA PATEL WAS PRACTICING AS AYURVEDIC DOCTOR SET TLED IN USA. NOW SHE HAS SHIFTED TO INDIA. SHE CAN BE PRODUCED BEFORE THE ASSESSING OFFICER FO R CROSS EXAMINATION. APART FROM THIS, THE FOLLOWING DETAILS SHALL ALSO BE FURNISHED :- (1) DETAILS OF GIFT RECEIVED IN EARLIER YEARS OR IN SUBSEQUENT YEARS FROM SOBHNA ALIAS SONIA PATEL. (2) DETAILS OF GIFT GIVEN BY SOBHNA ALIAS SONIA PAT EL TO HIS RELATIVES IN CURRENT YEAR AND LAST TWO YEARS. (3) ANNUAL EARNINGS OF SOBHANA ALIAS SONIA PATEL FO R CURRENT YEAR AND LAST TWO YEARS. ON THE BASIS OF ABOVE, THE LD. COUNSEL CONTENDED TH AT IN THE INTEREST OF JUSTICE, THE MATTER BE RESTORED TO THE FILE OF ASSESSING OFFICER SO THAT T HE ASSESSEE CAN PRODUCE ALL THE DETAILS AS WELL AS DONOR, NAMELY DR. SOBHANA ALIAS DR. SONIA PATEL FOR CROSS EXAMINATION. 3 ITA NO. 701/AHD/2008 5. ON THE OTHER HAND, SHRI ALOK JOHRI, LD. CIT, D.R . APPEARING ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LEARNED COMMISSIO NER OF INCOME TAX (APPEALS). HE CONTENDED THAT ENOUGH OPPORTUNITY WAS GIVEN AND THE RE IS NO JUSTIFICATION WHATSOEVER FOR GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE. 6. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE DONOR, NAME LY DR. SHOBHANA ALIAS DR. SONIYA PATEL, AT THE RELEVANT TIME WAS PRACTICING AS AYURVEDIC DOCTOR SE TTLED IN USA. NOW SHE HAS SHIFTED TO INDIA. IT APPEARS THAT THE ASSESSEE WAS PREVENTED BY SUFFICIE NT CAUSE IN PROCURING REQUIRED INFORMATION FROM THE DONOR, NAMELY DR. SHOBHANA ALIAS DR. SONIY A PATEL SETTLED IN USA AND NOW THE LD. COUNSEL OF THE ASSESSEE ASSURED THAT NOT ONLY ALL T HE INFORMATION SHALL BE FURNISHED BUT THE DONOR WILL ALSO BE PRODUCED FOR CROSS EXAMINATION. IN VIE W OF THIS, WE ARE OF THE VIEW THAT IT WILL MEET THE END OF JUSTICE IF THE IMPUGNED ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO RE-A DJUDICATE THE ADDITION OF RS.16,38,001/- AFRESH IN ACCORDANCE WITH LAW. BEFORE PARTING WITH THIS, T HE ASSESSEE SHALL FURNISH ALL THE REQUIRED DETAILS AND ALSO PRODUCE THE DONOR NAMELY DR. SHOBHANA ALIA S DR. SONIYA PATEL FOR CROSS EXAMINATION. IN CASE, THE ASSESSEE FAILED TO PRODUCE THE REQUIRED D ETAILS OR THE DONOR, THE ASSESSING OFFICER IS ALSO AT LIBERTY TO TAKE ADVERSE VIEW AS HE MAY DEEM FIT IN ACCORDANCE WITH LAW. 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 01/ 10/20 10 SD/- SD/- (G.D. AGRAWAL) (T.K. SHARMA ) VICE-PRESIDENT (AZ) JUDICIAL MEMBER DATED : 01/ 10/ 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT CONCERNED, (4) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGIS TRAR, ITAT, AHMEDABAD LAHA/SR.P.S.