The ITO, Ward-11(2), Ahmedabad V. Shri Pankaj S.Modi,HUF, Ahmedabad

ITA 944/AHD/2005

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5900 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-06-2010
• Assessment Year: 1997-1998
• Appeal Filed On: 29-03-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AND SHRI N.S.SAINI, ACCOUNTANT MEMBER DATE OF HEARING: 16.06.10 DRAFTED ON:16.06.10 ITA NO.944/AHD/2005 ASSESSMENT YEAR : 1997-1998 ITO, WARD 11(2), ROOM NO.130, NARAYAN CHAMBERS, ASHRAM ROAD, AHMEDABAD. VS. PANKAJ S. MODI HUF 4, JANMANGAL APPARTMENT, PALDI, AHMEDABAD. PAN/GIR NO. : (APPELLANT) .. (RESPONDENT) ITA NO.945/AHD/2005 ASSESSMENT YEAR : 1997-1998 ITO, WARD 11(2), ROOM NO.130, NARAYAN CHAMBERS, ASHRAM ROAD, AHMEDABAD. VS. PANKAJ S. MODI IND 4, JANMANGAL APPARTMENT, PALDI, AHMEDABAD. PAN/GIR NO. : (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI K.MADHUSUDAN SR. D.R. RESPONDENT BY: NONE O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST TWO SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCO ME TAX(APPEALS)-XVII, AHMEDABAD BOTH DATED 03.02.2005 PASSED IN THE CASE OF ABOVE NAMED ASSESSEES. 2. THE SOLE GROUND OF APPEAL TAKEN BY THE REVENUE S HRI PANKAJ H. MODI HUF READS AS UNDER:- - 2 - 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING TO DELETE THE ADDITION OF RS.16,74,300/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN IN THE TRANSFER O F SHARES. 3. THE SOLE GROUND OF APPEAL TAKEN BY THE REVENUE S HRI PANKAJ H. MODI INDIVIDUAL READS AS UNDER:- 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING TO DELETE THE ADDITION OF RS.20,83,100/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN IN THE TRANSFER O F SHARES. 4. IN THE CASE OF HUF, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS DECIDED THE ISSUE BY OBSERVING AS UNDER:- I HAVE CONSIDERED THE POINTS TAKEN UP BY THE APPEL LANT IN HIS STATEMENT OF FACTS AND HAVE PERUSED THE OBSERVA TIONS OF THE ASSESSING OFFICER. AS ALREADY POINTED OUT IN EARLIER PART OF THIS ORDER, THE APPELLANT HAS NOT FURNISHED ANY EVIDENCE TO SUPPORT TO HIS CONTENTIONS AND HAS ONLY BEEN MAKING IRRELEVANT CORRESPONDENCE WHENEVER HIS APPEA L WAS TAKEN UP FOR HEARING. HE HAS NOT FURNISHED ANY EVIDENCE THAT THE SHARES WERE NOT TRANSFERRED BY HI M DURING THE YEAR UNDER CONSIDERATION AND THAT THERE WAS NO LONG TERM CAPITAL GAIN IN THE TRANSFER OF THE SHARE S. IN VIEW OF THIS, I AM NOT LEFT WITH ANY OTHER ALTERNAT IVE BUT TO AGREE WITH THE FINDINGS OF THE ASSESSING OFFICER. H OWEVER, SINCE THE ISSUE HAS BEEN ADJUDICATED IN ASST. YEAR 1996- 97 WHERE VIDE MY ORDER NO.CIT[A]-XVII/WD.11(2)/56/0 2- 03 DATED 03.02.2005, I HAVE CONFIRMED THE ADDITION, IT WOULD BE TAXING THE SAME INCOME TWICE AND THEREFORE , ADDITION ON ACCOUNT OF LONG TERMS CAPITAL GAIN IN A SST. YEAR 1997-98 IS DIRECTED TO BE DELETED. 5. IN THE CASE OF INDIVIDUAL, THE LEARNED COMMISSIO NER OF INCOME TAX(APPEALS) HAS DECIDED THE ISSUE BY OBSERV ING AS UNDER:- I HAVE CONSIDERED THE POINTS TAKEN UP BY THE APPEL LANT IN HIS STATEMENT OF FACTS AND HAVE PERUSED THE OBSERVA TIONS OF THE ASSESSING OFFICER. AS ALREADY POINTED OUT IN EARLIER PART OF THIS ORDER, THE APPELLANT HAS NOT FURNISHED ANY EVIDENCE TO SUPPORT TO HIS CONTENTIONS AND HAS ONLY BEEN MAKING IRRELEVANT CORRESPONDENCE WHENEVER HIS APPEA L - 3 - WAS TAKEN UP FOR HEARING. HE HAS NOT FURNISHED ANY EVIDENCE THAT THE SHARES WERE NOT TRANSFERRED BY HI M DURING THE YEAR UNDER CONSIDERATION AND THAT THERE WAS NO LONG TERM CAPITAL GAIN IN THE TRANSFER OF THE SHARE S. IN VIEW OF THIS, I AM NOT LEFT WITH ANY OTHER ALTERNAT IVE BUT TO AGREE WITH THE FINDINGS OF THE ASSESSING OFFICER. H OWEVER, SINCE THE ISSUE HAS BEEN ADJUDICATED IN ASST. YEAR 1996- 97 WHERE VIDE MY ORDER NO.CIT[A]-XVII/WD.11(2)/60/0 2- 03 DATED 03.02.2005, I HAVE CONFIRMED THE ADDITION, IT WOULD BE TAXING THE SAME INCOME TWICE AND THEREFORE , ADDITION ON ACCOUNT OF LONG TERMS CAPITAL GAIN IN A SST. YEAR 1997-98 IS DIRECTED TO BE DELETED. 6. NOTICE OF HEARING WAS SENT TO THE RESPONDENT ASS ESSEES ON 17.02.2010 TO THE DEPARTMENTAL REPRESENTATIVE. THE LEARNED ASSESSING OFFICER WARD 11(2), AHMEDABAD VIDE HIS LE TTER NO.ITO.11(2)/PSM.ITAT/2009-10 DATED 05.03.2010 WHIC H IS PLACED ON RECORD HAS INFORMED AS UNDER: TO, THE DEPUTY REGISTRAR, I.T.A.T., 3 RD AND 4 TH FLOOR, ABHINAV ARCHAD, OPP. MUNICIPAL SCHOOL, AHMEDABAD. SIR, SUB: APPEAL NO.944 & 945/AHD/2005 IN THE CASE OF PANKAJ S. MODI INDIVIDUAL AND HUF A.Y.1997- 98. REF: SR. D.R. BENCH, ITAT, AHMEDABADS LETTER NO. SR.D.R./ITAT/PSM/B-BENCH/09-10/1158 DATED 21/01/2010. `````````````````````````````````````````` AS DIRECTED AND IN CONTINUATION OF THIS OFFICE LETT ER DATED 20/01/2010, 09/09/2009 AND 22/09/2009, THE UNDERSIGNED VISITED THE RESIDENCE OF PARENTS OF LAT E PANKAJ S. MODI. IT IS GATHERED THAT THE DECEASED HAS TWO C HILDREN CONSIDERING OF A SON AND DAUGHTER. HIS FATHER AGED ABOUT 86 YEARS OLD INFORMED THAT THE SON IS RESIDING IN SWITZERLAND AND THE DAUGHTER IS MARRIED AND STAYING IN MUMBAI. THE PARENTS HAVE DENIED TO HAVE ANY KNOWLED GE - 4 - ABOUT THE FILING OF APPEAL BEFORE THE ITAT AND LEGA L HEIRS OF THE DECEASED. YOURS FAITHFULLY, SD/- (R.M.PANERIA) INCOME TAX OFFICER, WARD-11(2), AHMEDABAD. COPY FORWARDED FOR INFORMATION TO : (1) THE SR.D.R, B BENCH, ITAT, AHMEDABAD WITH REFEREN CE TO HIS LETTER NO.SR. D.R./ITAT/PSM/B-BENCH/09- 10/1158 DATED 21/01/2010. (2) THE CIT, AHMEDABAD-V, AHMEDABAD. (3) THE JOINT CIT, RANGE-11, AHMEDABAD. INCOME TAX OFFICER, WARD-11(2), AHMEDABAD. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED O N THE ORDER OF THE LEARNED ASSESSING OFFICER. 8. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE F IND THAT IN THE YEAR UNDER APPEAL, THE LEARNED ASSESSING OFFICE R HAS MADE SUBSTANTIVE ADDITION IN ASSESSMENT YEAR 1996-97 ON ACCOUNT OF LONG TERM CAPITAL GAINS ON SALE OF SHARES OF RS.15, 74,300/- IN THE HANDS OF SHRI PANKAJ H. MODI HUF AND RS.20,83,1 00/- IN THE HANDS OF SHRI PANKAJ H. MODI INDIVIDUAL AND PROTECT IVE ADDITION IN THE PRESENT ASSESSMENT YEAR 1997-98 AS EXACT DAT E OF SALE OF SHARE WAS NOT AVAILABLE. IN APPEAL, THE LEARNED COM MISSIONER OF INCOME TAX(APPEALS) DELETED THE PROTECTIVE ADDIT IONS MADE BY THE LEARNED ASSESSING OFFICER OBSERVING THAT IN ASSESSMENT YEAR 1996-97 THE SUBSTANTIVE ADDITIONS MADE HAS BEE N CONFIRMED BY HIM VIDE ORDER DATED 03.02.2005 IN APP EALS NO..CIT[A]-XVII/WD.11(2)/56/02-03 IN THE CASE OF SH RI PANKAJ S. MODI HUF AND APPEALS NO.CIT[A]-XVII/WD.11(2)/60/ 02-03 IN - 5 - THE CASE OF SHRI PANKAJ S. MODI INDIVIDUAL. NO MAT ERIAL WAS BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THE S UBSTANTIVE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER OF RS.15,74,300/- IN THE HANDS OF SHRI PANKAJ H. MODI HUF AND RS.20,83,100/- IN THE HANDS OF SHRI PANKAJ H. MODI INDIVIDUAL IN THE ASSESSMENT YEAR 1996-97 WAS DELETED IN THE APPE AL FILED BY THE ASSESSEE BEFORE THE HIGHER FORUM. WE THEREFORE, DO NOT FIND ANY ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WHICH IS CONFIRMED AND THE GROUND OF A PPEAL OF THE REVENUE IS DISMISSED. 9 IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING ON 16 TH DAY OF JUNE, 2010. SD/- SD/- (MUKUL SHRAWAT ) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 16 TH DAY OF JUNE, 2010 PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XVII, AHMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD - 6 - DATE INITIALS 1. DRAFT DICTATED ON 16.06.2010 -------------- ----- 2. DRAFT PLACED BEFORE AUTHORITY 17.06.2010 ---- --------------- 3. DRAFT PROPOSED & PLACED 17.06.2010 ---------- --------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 17.06.2010 ---------- --------- JM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 18.06.2010 -------- ------------ 6. KEPT FOR PRONOUNCEMENT ON 18.06.2010 -------- ------------ 7. FILE SENT TO THE BENCH CLERK 18.06.2010 ----- --------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------