Dr. Riddhi K. Shukla, Ahmedabad V. The ACIT.,Cent.Circle-2(3), Ahmedabad

ITSSA 459/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0756 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-06-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 05-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUBHASH BAINS CIT D R
• Keywords: Unexplained investment; Gift; Cost of acquisition

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBER IT(SS)A NO. 457/AHD/2011 / ASSESSMENT YEAR: 2006-07 KETAN D. SHUKLA-HUF, SHREE NIVAS, 4, MAMATA PARK, B/H. NAVGUJARAT COLLEGE, USMANPURA, AHMEDABAD PAN : AAFHK 8633 N V/S. ACIT, CENTRAL CIRCLE 2 (3) AHMEDABAD IT(SS)A NO. 458/AHD/2011 / ASSESSMENT YEAR: 2006-07 DIXABEN D. SHUKLA SHREE NIVAS, 4, MAMATA PARK, B/H. NAVGUJARAT COLLEGE, USMANPURA, AHMEDABAD PAN : ABGPS 3351 R V/S. ACIT, CENTRAL CIRCLE 2 (3) AHMEDABAD IT(SS)A NO. 459/AHD/2011 / ASSESSMENT YEAR: 2009-10 DR. RIDDHI K. SHUKLA, SHREE NIVAS, 4, MAMATA PARK, B/H. NAVGUJARAT COLLEGE, USMANPURA, AHMEDABAD PAN : AJVPS 5583 Q V/S. ACIT, CENTRAL CIRCLE 2 (3) AHMEDABAD / // / (APPELLANT) / // / (RESPONDENT) ASSESSEE(S) BY : SHRI TUSHAR P. HEMANI, AR REVENUE BY : SHRI SUBHASH BAINS, CIT - DR !' # $%&/ // / DATE OF HEARING : 11/06/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 12/06/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THESE ARE THE APPEALS FILED BY THREE DIFFERENT ASSE SSEES AGAINST SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX ( APPEALS)-III, IT(SS)A NOS. 457 TO 459/AHD/2011 KETAN D. SHUKLA-HUF+DIXABEN+RIDDHI FOR AYS 2006-07, 2006-07 & 2009-10 2 AHMEDABAD, ALL DATED 03.06.2011, FOR ASSESSMENT YEA RS 2006-07, 2006-07 AND 2009-10. IT(SS)A NO. 457/AHD/2011: APPEAL IN THE CASE OF KET AN D. SHUKLA-HUF FOR ASSESSMENT YEAR: 2006-07 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE ASS ESSEE IS AGAINST THE ADDITION OF RS.1,20,000/- FOR UNEXPLAINED CASH CRED IT. THE ASSESSING OFFICER HAS MADE THE ADDITION WITH THE FOLLOWING FINDINGS:- 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO SUBMIT THE COPY OF CAPITAL ACCOUNT. IT WAS FOUND TH AT THE AMOUNT OF RS.1,20,000/- WAS RECEIVED BY IT IN CASH. IT WAS EX PLAINED THAT THE AMOUNT WERE RECEIVED AS GIFT ON THE OCCASION OF 10 TH DEATH ANNIVERSARY OF THE FATHER OF KARTA FROM DIFFERENT FAMILY MEMBERS. THE ASSESSEE D ID NOT GIVE ANY DETAIL REGARDING NAMES OF THE FAMILY MEMBERS FROM WHOM THE SAID AMOUNT HAD BEEN RECEIVED. IT WAS ALSO FOUND THAT THE AMOUNT WA S PAID BACK TO DIFFERENT FAMILY MEMBERS IN THE FORM OF CHEQUE. THEREFORE, TH E ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CAPITAL INTRODUCED IN THE BOO KS OF ACCOUNT. THEREFORE THE SAME IS ADDED BACK TO THE INCOME OF ASSESSEE AS UNE XPLAINED CASH CREDITS. PENALTY PROCEEDINGS U/S 271(1)(C)OF THE IT ACT IS I NITIATED SEPARATELY FOR CONCEALMENT OF INCOME. 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE IN SUPPORT OF THE CLAIM OF RECEIPT OF GIFT OF RS.1,20,000/-. HE EVEN DID NOT FURNISH THE NAME AN D ADDRESS OF THE PERSON WHO GAVE THE GIFT. IN THE ABOVE CIRCUMSTANCES, WE D O NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CI T(A) WHO SUSTAINED THE ADDITION OF RS.1,20,000/- MADE BY THE ASSESSING OFF ICER. ACCORDINGLY, THE ASSESSEES APPEAL IS DISMISSED. IT(SS)A NO. 458/AHD/2011: APPEAL IN THE CASE OF DIX ABEN D. SHUKLA FOR ASSESSMENT YEAR: 2006-07 4. THE ONLY GROUND RAISED IN THIS APPEAL BY THE ASS ESSEE IS AGAINST THE ADDITION OF RS.5,84,258/- TO THE LONG TERM CAPITAL GAIN DISCLOSED BY THE ASSESSEE. IT(SS)A NOS. 457 TO 459/AHD/2011 KETAN D. SHUKLA-HUF+DIXABEN+RIDDHI FOR AYS 2006-07, 2006-07 & 2009-10 3 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. THE ASSESSEE HAS DISCLOSED THE LONG TER M CAPITAL LOSS AT RS.65,750/-. THE ASSESSING OFFICER DETERMINED THE LONG TERM CAPITAL GAIN AT RS.5,84,258/-. THE COMPARISON BETWEEN THE WORKI NG OF THE LONG TERM CAPITAL LOSS/LONG TERM CAPITAL GAIN BY THE ASSESSEE AND REVENUE IS AS UNDER:- PARTICULARS CALCULATION AS PER ASSESSEE AO SALE CONSIDERATION [A] COST OF ACQUISITION : ACTUAL COST LAND (ASSESSEE : 201.50 SQ. YDS @ RS.800/- = RS.1, 61,200) (AO : 201.50 SQ. YDS @ RS.400/- = RS.80, 600) CONSTRUCTION VALUE (160 SQ. YDS @ RS.550/-) COMPOUND WALL AND OTHER CONSTRUCTION SUB-TOTAL APPROXIMATE COST [B] ELECTRICITY, DRAINAGE, WATER FITTINGS, WOOD WORK ETC. [C] TOTAL COST AS AT 01.04.81 (D=B+C) COST INFLATION INDEX FOR AY 06-07 (E) INDEXED COST OF ACQUISITION [F=D*E/100] (LONG TERM CAPITAL LOSS)/LONG TERM CAPITAL GAIN [A-F] 1621000 1611200 88000 20000 269200 270000 55000 325000 497 1686750 -65750 1621000 80600 88000 20000 188600 188600 20000 208600 497 1036742 584258 6. FROM THE ABOVE, WE FIND THAT THE ONLY DIFFERENCE IN THE WORKING OF THE CAPITAL GAIN BY THE ASSESSEE AND THE ASSESSING OFFI CER IS IN RESPECT OF TWO ITEMS I.E., (1) COST OF ACQUISITION AND (2) EXPENSE S ON ELECTRICITY, DRAINAGE, WATER FITTINGS, WOOD WORK ETC. THE PROPERTY WAS AC QUIRED BY THE ASSESSEE PRIOR TO 01.04.1981 AND THEREFORE, WHILE WORKING OU T ACTUAL COST, THE VALUE OF THE PROPERTY AS ON 01.04.1981 WAS DETERMINED. THE A SSESSEE TOOK THE VALUE IT(SS)A NOS. 457 TO 459/AHD/2011 KETAN D. SHUKLA-HUF+DIXABEN+RIDDHI FOR AYS 2006-07, 2006-07 & 2009-10 4 OF THE PLOT AT THE RATE OF RS.800/- PER SQ. YDS. WH ILE THE ASSESSING OFFICER ESTIMATED THE SAME AT RS.400/- PER SQ. YDS. AFTER CONSIDERING THE FACTS OF THE CASE AND THE ARGUMENTS OF BOTH THE SIDES, IN OU R OPINION, IT WOULD MEET THE ENDS OF JUSTICE IF THE VALUE OF THE LAND AS ON 01.04.1981 IS ESTIMATED AT THE RATE OF RS.600/- PER SQ. YDS. ANOTHER DIFFERENCE IN THE WORKING OF THE ASSESSEE AND THE ASSESSING OFFICER IS THE EXPENDITU RE ON ELECTRICITY, DRAINAGE, WATER FITTINGS, WOOD WORK ETC., WHICH IS CLAIMED TO BE RS.55,000/- BY THE ASSESSEE WHILE THE ASSESSING OFFICER ADOPTED THE SAME AT RS.20,000/-. WE HAVE GONE THROUGH THE ASSESSMENT ORDER, BUT WE D O NOT FIND ANY REASON GIVEN BY THE ASSESSING OFFICER IN THE ASSESSMENT OR DER FOR TAKING THE INVESTMENT IN ELECTRICITY, DRAINAGE, WATER FITTINGS , WOOD WORK ETC., AT RS.20,000/- AS AGAINST RS.55,000/- SHOWN BY THE ASS ESSEE. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO TAKE THE AMOUNT OF INVESTMENT IN ELECTRICITY, DRAINAGE, WATER FITTINGS, WOOD WORK ETC. AT RS.55,0 00/- AS SHOWN BY THE ASSESSEE. AFTER MAKING THE ABOVE TWO ADJUSTMENTS TO THE COST OF ACQUISITION, THE ASSESSING OFFICER WILL RE-WORK OUT THE CAPITAL GAIN, IF ANY, IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED. IT(SS)A NO. 459/AHD/2011: APPEAL IN THE CASE OF DR. RIDDHI K. SHUKLA FOR ASSESSMENT YEAR: 2009-10 8. IN THIS APPEAL BY THE ASSESSEE FOLLOWING GROUNDS ARE RAISED:- 1. YOUR APPELLANT BEING AGGRIEVED BY THE ORDER PASSED BY LEARNED C.I.T. (APPEALS)-III, AHMEDABAD, DATED 08.06.2011, PRESENT S THIS APPEAL ON FOLLOWING GROUNDS. 2. THE LEARNED C.I.T. (APPEALS)-III HAS ERRED IN CONFI RMED ADDITION VALUE OF DIAMOND OF RS.1,00,000/- AS UNEXPLAINED THROUGH FUL LY EXPLAINED. THE ADDITION MADE BE DELETED. IT(SS)A NOS. 457 TO 459/AHD/2011 KETAN D. SHUKLA-HUF+DIXABEN+RIDDHI FOR AYS 2006-07, 2006-07 & 2009-10 5 3. THE APPELLANT CRAVES, LEAVE TO ADD, AMEND, ALTER, E DIT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE T IME OF OR BEFORE HEARING OF THIS APPEAL. 9. FROM THE ABOVE, IT IS EVIDENT THAT THE ONLY SUBS TANTIVE GROUND IS AGAINST THE SUSTENANCE OF ADDITION OF RS.1,00,000/- IN RESPECT OF VALUE OF DIAMOND. HOWEVER, AFTER HEARING THE PARTIES AND PE RUSAL OF THE ORDER OF THE AUTHORITIES BELOW, WE FIND THAT THE ASSESSING OFFIC ER HAS MADE THE ADDITION OF RS.1,00,000/- FOR UNEXPLAINED INVESTMENT IN THE SILVER UTENSILS/ARTICLES. BEFORE THE CIT(A) ALSO THE ASSESSEE TOOK THE WRONG GROUND AND THE CIT(A) CONSIDERED WHAT IS THE CORRECT GROUND AND ALSO SUST AINED THE ADDITION OF RS.1,00,000/- IN RESPECT OF UNEXPLAINED SILVER UTEN SILS/ARTICLES. THE RELEVANT FINDING OF THE CIT(A) READS AS UNDER:- [ 5. AS REGARDS THE SECOND ADDITION OF RS. ONE LAKH ON ACCOUNT OF INVESTMENT IN SILVER ARTICLES, IT IS TO BE CLARIFIED THAT THE ADDITION HAS BEEN MADE BY THE APPELLANT ON ACCOUNT OF UNACCOUNTED INVESTMENT IN S ILVER ARTICLES AND NOT IN DIAMOND JEWELLERY AS MENTIONED IN THE GROUNDS OF AP PEAL. THE ADDITION HAS BEEN MADE BY THE AO BECAUSE THE HUSBAND OF THE APPE LLANT DOCTOR KETAN SHUKLA HIMSELF HAS ADMITTED DURING THE COURSE OF SE ARCH THAT THE INVESTMENT IN THE SILVER ARTICLES TO THE EXTENT OF RS.ONE LAKH IS UNACCOUNTED AND THE SAME HAS BEEN OWNED UP BY THE APPELLANT. NO PROOF OF PUR CHASE OF THE SILVER ARTICLES WERE SUBMITTED BEFORE ME WHICH WOULD LEAD TO SOME OTHER INFERENCE OTHER THAN WHAT WAS GIVEN BY THE HUSBAND OF THE APP ELLANT AT THE TIME OF THE SEARCH. SINCE THE INVESTMENT OF RS. ONE LAKH IN SIL VER ARTICLES HAS BEEN ACCEPTED BY THE HUSBAND OF THE APPELLANT AS UNACCOU NTED, I HAVE NO HESITATION IN CONFIRMING THE ADDITION OF RS. ONE LAKH MADE BY THE AO ON THIS ACCOUNT. 10. EVEN BEFORE US, THE LD. COUNSEL HAS NOT BEEN AB LE TO GIVE ANY SATISFACTORY EXPLANATION WITH REGARD TO INVESTMENT IN SILVER UTENSILS/ARTICLES. DURING THE COURSE OF SEARCH, THE HUSBAND OF THE ASSESSEE HAS ADMITTED THAT THE UNEXPLAINED INVESTMENT IN SIL VER UTENSILS/ARTICLES TO THE EXTENT OF RS.1,00,000/-. IN VIEW OF ABOVE, WE DO NOT FIND ANY IT(SS)A NOS. 457 TO 459/AHD/2011 KETAN D. SHUKLA-HUF+DIXABEN+RIDDHI FOR AYS 2006-07, 2006-07 & 2009-10 6 JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CI T(A) WHICH IS SUSTAINED AND THE ASSESSEES APPEAL IS DISMISSED. 11. IN THE RESULT, IT(SS) NOS. 457 AND 459/AHD/2011 ARE DISMISSED WHILE IT(SS)A NO. 458/AHD/2011 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 12 TH JUNE, 2015 AT AHMEDABAD. SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 12/06/2015 BIJU T., PS )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. -- $ !. / CONCERNED CIT 4. !. ( ) / THE CIT(A) 5. +12 $ , , / DR, ITAT, AHMEDABAD 6. 23 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER, TRUE COPY 5 55 5/ // / -6 -6 -6 -6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD