The DCIT, Central Circle-1, Baroda V. Shri Tanmay Surendra Patel, Baroda

ITSSA 622/AHD/2011

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8660 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 28-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS APARNA AGARWAL
• Assessee Lawyers: BHAVIN MARFATIACA
• Keywords: Capital asset; Gift; Income from undisclosed sources; Question of law
• Section: 56(2); 153A; 132

Judgement Text

DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 1 OF 11 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABD BENCHES A BENCH AHMEDABAD BEFORE SHRIO. P. MEENA, ACCOUNTANT MEMBER AND MRS. MADUMITA ROY, JUDICIAL MEMBER I.T.SSA. NO.622 /AHD/2011:ASSESSMENT YEAR: 2008-09 DEPUTY COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-1, VADODARA VS. SHRITANMAYSURENDRA PATEL, 402,SAFALAY APARTMENT, 43, ARUNOADAY SOCIETY, ALKAPURI BARODA 390007 PAN: ACZPP 3911 E APPELLANT RESPONDENT CROSS OBJECTION (SSANO.)-16/AHD/2012: ASSESSMENT YE AR: 2008-09 SHRITANMAYSURENDRA PATEL, 402,SAFALAY APARTMENT, 43, ARUNOADAY SOCIETY, ALKAPURI BARODA 390007 PAN: ACZPP 3911 E VS. DEPUTY COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-1, VADODARA APPELLANT RESPONDENT ASSESSEE BY SHRI BHAVIN MARFATIA, CA, A.R. REVENUE BY MRS. APARNA AGARWAL, CIT(D.R.) DATE OF HEARING 09.04.2019 DATE OF PRONOUNCEMENT 09 . 04.2019 ORDER PER O. P. MEENA, AM 1. THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, AHMEDABAD (IN SHORT THE CIT (A)) DATED 02.09.2011 PERTAINING TO ASSESSMENT YEAR 2008-09, WHICH IN TURN HAS ARISEN FROM THE ASSESSMENT ORDER PASSED UN DER SECTION 153A READ WITH SECTION 143 (3) DATED 23.12.2010UNDER INCOME TAX ACT, 1961 (IN SHORT THE ACT) BY THE SURAT (IN SHORT THE AO). DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 2 OF 11 I.T.A.NO. 622/AHD/2011/A.Y. 2008-09/ BY THE REVENUE 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND CI RCUMSTANCES OF THE CASE BY DELETING THE ADDITION OF RS.75,39,521/- ON ACCOUNT OF GIFT RECEIVED IN KIND BY THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER ON THE AB OVE POINT. 3. BRIEFLY, STATED THE FACTS OF THE CASE ARE THAT A SE ARCH AND SEIZURE ACTION UNDER SECTION132 OF THE ACT WAS CARRIED OUT ON 11.02.2009 IN THE CASE OF AMOD GROUP INCLUDING THE ASSESSEE. ACCORDINGLY, A NOTICE UNDER SECTION 153A WAS ISSUED ON 03.06.2009. IN RESPONSE TO WHICH, THE ASSESSEE HAS FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 14,31,120 ON 06.07.2009. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THEASSESSEE HAS SHOWN TO HAVE A CCEPTED GIFT IN KIND IN THE FORM OF EQUITY SHARES OF SUN PHARMACEUTICALS INDUSTRIES LTD . OF 3875 SHARES AND 2650 SHARES VIDE DECLARATIONS OF GIFT DEED DATED 7.2.2008 AND 17.3.2 008 RESPECTIVELY. ON EXAMINING THE DETAILS OF GIFT WITH THE SEIZED PAPER MATERIAL (COL LECTED IN THE COURSE OF SEARCH PROCEEDINGS U/S 132 OF THE ACT IN THE CASE OF AMOD GROUP AS WELL AS THE ASSESSEE ON 11.2..2009) THE LD.AO OBSERVED THAT GIFT WAS RECEIV ED FROM SHRI JAYANT SANGHAVI NOT RELATED TO THE ASSESSEE AND THE MARKET VALUE OF THE SE SHARES WORKED OUT AT RS.75,39,521/- .THE LD.AO ALSO OBSERVED THAT THE DONOR SHRI JAYANT SANGHAVI GAVE GIFT TO ASSESSEE AS WELL AS OTHER FAMILY MEMBERS IN THE MONTH OF FEBRUA RY AND MARCH, 2008 OF EQUITY SHARES OF SUN PHARMACEUTICALS INDUSTRIES LTD. FOR A TOTAL VALUE OF RS.4,70,58,686/-. THE AO FURTHER OBSERVED THAT WIFE OF THE DONOR SMT. VISHAK HA J. SANGHAVI ENTERED INTO PURCHASE TRANSACTIONS VIDE DIFFERENT DEEDS DATED 23.04.2008 AND 29.07.2008 WITH SHRI KRUPESH PATEL AND SHRI NAVIN PATEL FOR ACQUIRING FROM THEM LARGE PLOT OF LAND AT GOTRI FOR A CONSIDERATION OF RS.10.63 CRORES. THEREAFTER ON THE BASIS OF DETAILED SCRUTINY OF SEIZED PAPERS RELATING TO GOTRI LAND IN ASST. YEAR 2009-10 IT WAS HELD BY THE AO THAT THE TOTAL CONSIDERATION OF RS.22.61 CRORES (AT THE PLACE OF R S.10.63 CRORES) INCLUDED THE AMOUNT OF GIFT OF RS.4.70 CRORES RECEIVED IN THE FORM OF SHAR ES BY THE ASSESSEE AND THE FAMILY DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 3 OF 11 MEMBERS. FURTHER WHILE FINALIZING THE ASSESSMENT OR DER THE AO OBSERVED THAT AS THE MARKET VALUE OF THE LAND SOLD TO SMT. VISHAKHA J. S ANGHAVI (WIFE OF DONOR SHRI JAYANT SANGHAVI) WAS RS.22 CRORES AND NOT RS.10.63 CRORES AS PER VALUE SHOWN ON THE SEIZED EVIDENCES. FURTHER OUT OF RS.22 CRORES, THE AO BROU GHT ON RECORD THE DETAIL OF RS.19.81 CRORES AS THE TOTAL CONSIDERATION WHICH COMPRISED O F CHEQUE OF RS.10.62 CRORES ISSUED BY VISHAKHA J. SANGHAVI. GIFTED SHARES AT RS.4.70 CROR ES, CASH OF RS.3 CRORES RECEIVED AS ON MONEY ADMITTED BY KRUPESH PATEN IN HIS STATEMENT R ECORDED U/S 132(4) OF THE ACT AND RS.1.41 CRORES AS TAX COMPONENT ON THE VALUE OF SHA RES ACCEPTED BY THE DONEE FROM THE HUSBAND OF DONOR AS THE PURCHASER OF THE LAND. ACCO RDINGLY VALUE OF SHARES GIFTS TO THE ASSESSEE AT RS.7539,521/- WAS ADDED TO THE INCOME O F ASSESSEE AND INCOME WAS ASSESSED AT RS.89,97,507/-. 4. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFOR E THE LD. CIT (A). THE LD. CIT (A) HAS DELETED THE ADDITION BY EXAMINING IN DETAIL THE TRANSACTIONS OF GIFT OF SHARES AND TRANSACTIONS RELATING TO SALE OF LAND AT GOTRI AND WAS OF THE VIEW THAT TRANSACTION OF TRANSFER OF LAND AROSE DURING ASST. YEAR 2009-10 AN D THE IMPUGNED GIFT RELATING TO ASST. YEAR 2008-09 AND ADDITION, IF ANY, RELATING TO UNDE R VALUING OF THE TRANSACTIONS OF SALE OF LAND WILL FALL IN ASST. YEAR 2009. 5. BEING AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL. THE LD. CIT (DR) VEHEMENTLY SUPPORTED THE ORDER OF THE AO. 6. PER CONTRA, THE LEARNED COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE IDENTICAL ISSUE IN THE CASE OF ONE OF GROUP MEMBERS , SMT. LALITABE N N PATEL IS AROSED IN ASSESSMENT YEAR 2008-09, WHICH HAS BEEN DECIDE IN FAVOUR OF THE ASS ESSEE BY THE TRIBUNAL, HENCE, THE ISSUE IS SQUARELY COVERED BY THE DECISION OF CO-ORD INATE BENCH OF AHMEDABAD TRIBUNAL IN THE CASE OF DCIT, CC-1, BARODA V. SMT. LALITABEN NARHARI PATEL IN I.T.(S.S.A) NO. 625/AHD/2011 WITH C.O. NO. 19/AHD/2012 A.Y. 2008-09 DATED 03.05.2019 AND IN THE CASE OF SHRI KRUPESHBHAI N. PATEL VS. DCIT, CC-1, B ARODA IN ITA NO.590/AHD/2011 FOR ASST. YEAR 2006-07 AND OTHERS AND FURTHER SUBMITTED THAT APPEAL OF THE REVENUE CHALLENGING THE ORDER OF THE TRIBUNAL WAS DISMISSED BY HON. JURISDICTIONAL HIGH COURT IN TAX APPEAL NO.938 OF 2012 IN THE CASE OF CIT VS. KR UPESHBHAI N. PATEL VIDE ORDER DATED DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 4 OF 11 29 TH APRIL, 2013, ON THE GROUND THAT NO QUESTION OF LAW ARISES IN THE PRESENT TAX APPEAL BY THE REVENUE. 7. IN REJOINDER, THE LD. CIT (DR) SUBMITTED THAT THE ISSUE SEEMS TO HAVE COVERED BUT THE LD. CIT (DR) REFERRED PARA 9.12 AT PAGE NO. 8 OF ORDER OF CIT (A) AND ARGUED THAT THE ADDITION OF RS. 4.70 CRORES HAS BEEN SUSTAINED IN THE HANDS OF THE APPELLANT FOR THE ASSESSMENT YEAR 2009-10. REPLAYING TO THIS THE LEA RNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS PARA REFERRED BY THE CIT (A) WA S HAS BEEN QUOTED BY THE LD. CIT (A) IN RESPECT OF ORDER IN THE CASE OF SHRI KRUPESHBHAI N PATEL FOR THE ASSESSMENT YEAR 2008- 09, HENCE, THE ADDITION MENTIONED IN THIS PARA IS N OT PERTAINED TO THE ASSESSEE. THIS ADDITION WAS DELETED BY THE TRIBUNAL IN I.T.A.NO. 5 90TO 594/AHD/2011 DTD. 29.06.2012 AGAINST WHICH THE APPEAL FILED BY THE REVENUE HAS B EEN ALSO DISMISSED BY THE HON`BLE HIGH COURT OF GUJARAT HAS ALSO DISMISSED[TAX APPEAL NO. 938 OF 2012 DATED 29.04.2013]. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORDAND ALSO GONE THROUGH THE DECISION OF CO-ORDI NATE BENCH RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE. WE FIND THAT THE LD. CIT (A) HAS DELETED THE ADDITION FOLLOWING THE DECISION IN THE CASE OF KRUPESHBHAI N PATEL FOR THE ASSESSMENT YEAR 2008- 09 ON THE GROUND THAT THE IMPUGNED ADDITION IS MADE ON ACCOUNT OF UNDISCLOSED SALE CONSIDERATION IN RESPECT OF TRANSFER OF GOTRI LAND WHICH SHOULD BE TAXED IN ASSESSMENT YEAR 2009-10 , AS PER SECTION 45(1)OF THE ACT, AS T HE TOTAL SALE CONSIDERATION RECEIVED FROM SHRI JAYANT SANGHAVI ON BEHALF OF SMT. VISHAKH A SANGHAVI TO WHOM LAND SOLD IS AROSED DURING THE ASSESSMENT YEAR 2009-10.WE FIND T HAT SIMILAR ISSUE ARISEN IN THE CASE OF SMT. LALITABEN N PATE IN I.T.(S.S.A) NO. 625/AHD/20 11 DATED 03.05.2016 HAS BEEN DELETED BY THE TRIBUNAL. WHEREIN THE CO-ORDINATE BE NCH HAS GIVEN THE FINDINGS AS UNDER IN PARA 6 TO 8 AS UNDER: : 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE JUDGMENT OF HON. JURISDICTIONAL HI GH COURT. SOLITARY GRIEVANCE DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 5 OF 11 OF THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A) I N DELETING THE ADDITION OF RS.46,80,540/- HELD TO BE GIFT OF SHARES. WE OBSERV E THAT LD. CIT(A) WHILE DELETING THE ADDITION HAS OBSERVED AS UNDER :-6. WE OBSERVE THAT LD. CIT(A) WHILE DELETING THE ADDITION HAS OBSERVED AS UNDER :- 6. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE HAS, IN AY 2008-09 SHOWN TO HAVE ACCEPTED GIFT IN KIND BEING EQUITY SHARES O F SUN PARMACEUTICALS INDUSTRIES LTD. RESPECTIVELY 2400 SHARES AND 1650 S HARES VIDE DECLARATION OF GIFT DEED DATED 7.2.2008 AND 17.3.2008. THE DONOR I S SHRI JAYANT SANGHAVI NOT RELATED TO THE ASSESSEE EVEN DISTANTLY. THE MARKET VALUE OF THESE SHARES WORKS OUT TO RS. 46,80,540/- ON THE DAY OF DECLARATION OF GIFT. 6.1 IN FACT, THE TOTAL AMOUNT OF GIFTS RECEIVED FRO M SHRI JAYANT SANGHAVI BY THE APPELLANT AND THE FAMILY MEMBERS IN FEB./MARCH, 200 8 IS RS. 4,70,58,686/-. THE AO HAS HELD THAT THE GIFTS RECEIVED IN KIND I.E . SHARES OF SUN PHARMACEUTICAL INDUSTRIES LTD. BY THE APPELLANT AND THE FAMILY MEMBERS AS INCOME FROM UNDISCLOSED SOURCES AND, THEREFORE, ADD ED IT TO THE TOTAL INCOME OF APPELLANT AND THE FAMILY MEMBERS AS PER DETAILED DI SCUSSION IN PARA 4 OF ASSESSMENT ORDER 6.2 IT HAS BEEN HELD BY THE AO THAT GIFTS RECE IVED IN KIND BY THE APPELLANT AND THE FAMILY MEMBERS FROM SHRI JAYANT SANGHVI WHO IS THE HUSBAND OF SMT. VISHAKHASANGHVI TO WHOM GOTRI LAND HAS BEEN SOLD BY THE FAMILY MEMBERS OF THE APPELIANT ; SHRIKRUPESHBHAI N. PATEL AND SHRINAVINBHAI N. PATEL ARE NOTHING BUT PART OF UNDISCLOSED SALE CONSIDERATION IN RESPECT OF GOTRI LAND. 6.3 THEREAFTER, ON THE BASIS OF DETAILED SCRUTINY O F THE SEIZED PAPERS RELATING TO SALE OF GOTRII LAND IN AY 2009-10 IT WAS HELD BY TH E AO THAT THE TOTAL CONSIDERATION OF RS.22.61 CRORES INCLUDED THE AMOUN T OF GIFTS OF RS, 4.70 CRORES RECEIVED IN THE FORM OF SHARES BY THE APPELLANT AND THE FAMILY MEMBERS AND FURTHER ADDED THE MARKET VALUE OF SHARES AS ON DATE OF DECLARATION 'OF GIFT AMOUNTING TO RS.46,80,540/- AS INCOME FROM UNDISCLO SED SOURCES IN AY 2008- 09. 7. THE APPELLANT HAS RELIED ON THE SUBMISSIONS IN T HE CASE OF SHRI KRUPESHBHAI NARHARIBHAI PATEL FOR A.Y. 2008-09 IN RESPECT OF GI FTS RECEIVED IN THE FORM OF SHARES. THE FINDINGS OF THE UNDERSIGNED IN RESPECT OF THESE GROURIDS OF APPEAL AS DECIDED IN THE CASE OF SHRI KRUPESHBHAI NARHARIB HAI PATEL FOR AY 2008-09 DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 6 OF 11 AS CONTAINED IN PARA 9.8 TO 9.12 OF THE ORDER DATED 30-08-2011 ARE REPRODUCED AS UNDER : '9.8 NOW LET US EXAMINE THE ISSUE OF GIFTS RECE IVED IN THE FORM OF SHARES FROM THE DONOR SHRI JAYANT SANGHVI, WHO IS THE HUSBAND O F SMT. VISHAKHA SANGHVI TO WHOM GOTRI (AND HAS SOLD FOR DOCUMENTED CONSIDER ATION OF RS. 10.62 CRORES. THE GIFTS IN FORM OF SHARES OF VALUE OF RS. 4.70 CR ORES ARE RECEIVED IN FEB/MARCH, 2008 BY THE APPELLANT AND THE FAMILY MEM BERS WHEREAS GOTRI LAND HAS BEEN SOLD BY APPELLANT AND CO-OWNERS IN APRIL, 2008. THE WORD 'GIFT 1 IS NOT DEFINED IN INCOME TAX ACT. THE SAME HAS BEEN DEFINE D AS PER SECTION 122 OF THE TRANSFER OF PROPERTY ACT, 1882 WHICH IS QUOTED AS U NDER: 'A GIFT IS THE TRANSFER OF CERTAIN EXISTING MOVABLE OR IMMOVABLE PROPERTY, MADE (I) VOLUNTARILY, AND . (II) WITHOUT CONSIDERATION -BY ONE PERSON (CALLED THE DONOR) TO ANOTHER (CALLE D THE DONE), AND -ACCEPTED BY (OR ON BEHALF OF) THE DONE SUCH ACCEPTANCE MAY BE MADE DURING THE LIFE TIME OF THE DONOR, AND WHILE HE IS STILL CAPABLE OF GIVING. IF THE DONE DIES BEFORE AC CEPTANCE, THE GIFT IS VOID OF IN VIEW OF THE ABOVE THE REQUISITES OF A VALID GIFT ARE : '(1) THERE SHOULD BE A DONOR AND A DONEE. (2) THE S UBJECT OF THE GIFT MUST BE CERTAIN AND EXISTING AND CAPABLE OF TRANSFER. (3) T HE GIFT SHOULD BE MADE VOLUNTARILY AND WITHOUT CONSIDERATION. (4) THERE SH OULD BE A TRANSFER ON THE PART OF THE DONOR. (5) THERE SHOULD BE AN ACCEPTANC E BY OR ON BEHALF OF THE DONEE DURING HIS LIFE-TIME. (6) THE ACCEPTANCE MUST BE AT A TIME WHEN THE DONOR IS ALIVE AND CAPABLE OF GIVING. (7) THEREFORE , IT NECESSARILY FOLLOWS THAT THE DONOR AND THE DONEE MUST BOTH BE LIVING. (8) IN CASE OF MOVABLE PROPERTY, THERE MUST BE EITHER A REGISTERED INSTRUMENT PROPER LY ATTESTED OR DELIVERY OF POSSESSION.' 9.9 THE GIFT OF SHARES IN THE CASE OF APPELLANT NEE DS TO BE EXAMINED WITH REFERENCE TO THE MOST VITAL REQUISITE OF A VALID GI FT I.E. IT MUST BE VOLUNTARY AND WITHOUT CONSIDERATION. FOR THIS PURPOSE IT IS IMPOR TANT TO NOTE THAT: - . DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 7 OF 11 (I) SHRI JAYANT SANGHVI IS NOT RELATED TO THE A PPELLANT AND ITS FAMILY EVEN THOUGH THEY MAY BELONG TO THE SAME COMMUNITY. (II) THERE IS NO OTHER OCCASION WHEN THE GIFT HA S BEEN MADE BY SHRI JAYANT SANGHVI OR HIS FAMILY TO THE APPELLANT AND ITS FAMI LY MEMBERS. ' . . (III) THERE IS NO RELIGIOUS OR ANY OTHER SOCIA L OCCASION ON WHICH SUCH HUGE GIFTS HAVE BEEN GIVEN. (IV) THERE IS NOTHING ON RECORD TO SHOW THAT THE APPELLANT AND ITS FAMILY, AT ANY OCCASION IN THE PAST, HAS GIVEN ANY GIFT TO SHR I JAYANT SANGHVI AND HIS FAMILY. (V) THE GIFT IN QUESTION IS NOT A MEAGER AMOUN T BUT IN TOTAL RS.4.70 CRORES GIVEN TO THE APPELLANT AND ITS FAMILY MEMBERS. IN VIEW OF THE ABOVE, APPELLANT HAS FAILED TO FURNI SH THE PROOF RELATING TO RELATIONSHIP WITH : DONOR, OCCASION OF GIFT, RECIPROCATION OF GIFT ETC. IT IS NOT ONLY IMPROBABLE RATHER IMPOSSIBLE TO ACCEPT THE ASSERTIO N OF THE APPELLANT THAT THE ACT OF RECEIVING SUCH HUGE GIFTS IN FEB/MARCH 2008 FROM SHRI JAYANT SANGHVI AND SALE OF GOTRI (AND AFFECTED AFTER 1 OR TWO MONT HS I.E. APRIL, 2008 TO SMT. VISHAKHA SANGHVI, WIFE OF THE DONOR OF SUCH HUGE GI FT, ARE TOTALLY INDEPENDENT TRANSACTIONS. TTIIS IS A SITUATION WHERE THE APPARE NT DOES NOT REFLECT THE REALITY. THEREFORE, I AM IN TOTAL AGREEMENT WITH THE AO THAT TAKING INTO ACCOUNT THE SURROUNDING CIRCUMSTANCES AND TEST OF HUMAN PROBABI LITIES, SUCH HUGE GIFTS RECEIVED IN THE FORM OF SHARES ARE NOT GENUINE MAIN LY ON ACCOUNT OF THE FACT THAT SAID GIFTS CANNOT BE SAID TO BE VOLUNTARY AND WITHOUT CONSIDERATION. THE RELEVANT CONSIDERATION IS, IN FACT, THE UNDISCLOSED SALE CONSIDERATION OF GOTRI LAND. IN VIEW OF THIS, THE AO HAS RIGHTLY CONCLUDED THAT THE PURPORTED GIFT IS IN FACT, UNDISCLOSED SALE CONSIDERATION IN RESPECT OF SALE OF GOTRI LAND AND NOTHING ELSE. THE APPELLANT HAS RECEIVED THE UNDISC LOSED SALE CONSIDERATION IN THE FORM OF GIFTS IN KIND. 9.10 THE FACT THAT THE GIFT IN KIND IS NOT TAXABLE DURING THE RELEVANT PERIOD AS PER SECTION 56(2) OF THE ACT IS OF NO RELEVANCE ONC E IT IS HELD THAT THE SAID GIFT IS PART OF UNDISCLOSED SALE CONSIDERATION IN RESPECT O F TRANSFER OF GOTRI LAND AS THE SALE CONSIDERATION CAN ALWAYS BE IN TERMS OF MO NEY AS WELL AS KINDS. 9.11 I AGREE WITH THE ADDITIONAL SUBMISSION MADE BY THE APPELLANT THAT THE UNDISCLOSED SALE CONSIDERATION IN RESPECT OF TRANSF ER OF GOTRI LAND SHOULD BE DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 8 OF 11 TAXED IN THE YEAR OF TRANSFER I.E. AY 2009-10 AS PE R SECTION 45(1) OF THE ACT. ONCE IT IS HELD THAT TOTAL SALE CONSIDERATION IN RE SPECT OF GOTRI LAND INCLUDES THE AMOUNT OF GIFT RECEIVED IN AY 2008-09 AS PART O F THE TOTAL SALE CONSIDERATION RECEIVED FROM SHRI JAYANT SANGHVI ON BEHALF OF SMT. VISHAKHA SANGHVI TO WHOM GOTRI LAND HAS BEEN SOLD, THE AMOUN T OF SUCH UNDISCLOSED SALE CONSIDERATION ARISING FROM SALE OF GOTRI LAND HAS TO BE TAXED IN THE YEAR IN WHICH THE SALE TOOK PLACE I.E. AY 2009-10. 9..12 IN VIEW OF THE ABOVE, THE TOTAL GIFTS AMOU NTING TO RS.4.70 CRORES. RECEIVED BY THE APPELLANT AND HIS FAMILY MEMBERS AR E IN FACT TOWARDS UNDISCLOSED SALE CONSIDERATION OF GOTRI LAND. THE A DDITION OF RS.4.70 CRORES MADE IN AY 2009-10 IN THE HANDS OF THE APPELLANT AN D SHRI NAVIN N. PATEL (JOINT OWNERS) OF RS. 2,35,00,0007- EACH ON PROTECT IVE BASIS IS CONFIRMED ON SUBSTANTIVE BASIS. THEREFORE, THE ADDITION OF RS.65 ,83,830/- IN AY 2008-09 MADE ON ACCOUNT OF NON-GENUINENESS OF GIFTS BY TREA TING IT AS PART OF TOTAL SALE CONSIDERATION IS, HEREBY, DELETED.' 8. IN VIEW OF THE ABOVE FINDINGS, THE ADDITION OF R S.46,80,5407- ON ACCOUNT OF GIFTS IS DELETED. THEREFORE, THE SECOND AND THIRD G ROUNDS OF APPEAL ARE ACCORDINGLY ALLOWED, SUBJECT TO ABOVE FINDINGS. 7. WE ALSO OBSERVE THAT SIMILAR ISSUE CAME UP BEFOR E THE TRIBUNAL IN THE CASE OF SHRIKRUPESHBHAI N. PATEL VS. DCIT, CC-1, BARODA IN ITA NO.590/AHD/2011 FOR ASST. YEAR 2006-07 AND OTHERS AND THE REVENUES APPEAL WAS DISMISSED BY THE TRIBUNAL BY OBSERVING AS UNDER :- (F) A.Y.2008-09 IT(SS)A NO. 595/AHD/2011 (REVENU ES APPEAL) 20. GROUNDS ARE REPRODUCED BELOW:- 1. THE LD.CIT(A) HAS ERRED I N LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE BY DELETING THE ADDITION OF RS.28,05,666/- (RS.28,05,666 IN THE CASE OF SHRINAVINBHAIN.PATEL) ON ACCOUNT OF SALE OF AMPAD LAND ON THE BASIS OF SEIZED PAPERS. 2. THE LD . CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE B Y DELETING THE ADDITION OF RS.65,83,830/- (RS.1,69,27,845 IN THE CASE OF SHRIN AVINBHAIN.PATEL) ON ACCOUNT OF GIFT RECEIVED IN KIND. 20.1. AS FAR AS G ROUND NO.1 IS CONCERNED, A VIEW HAS ALREADY BEEN TAKEN HEREINABOVE, THEREFORE, FOLLOWING THE SAME THIS GROUND OF THE REVENUE IS HEREBY DISMISSED. 21. APRO POS TO GROUND NO2, IT WAS NOTED BY THE AO VIDE ORDER U/S.153A R.W.S.143(3) DA TED 23/12/2010 THAT THE ASSESSEE HAD SHOWN A GIFT IN KIND OF EQUITY SHARES OF SUN PHARMACEUTICAL INDUSTRIES. IT WAS NOTED THAT THROUGH A DECLARATION OF GIFT-DEED DATED DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 9 OF 11 07/02/2008 AND IT(SS)A NOS.590 TO 595/A/2011 & 651, 616, 626,627,637, 638/AHD/11 CO NOS.12 & 13/AHD/12 & CO NOS 20&21/AHD /12 SHRI KRUPESHBHAI N.PATEL/SH. NAVINBHAI N.PATEL VS. DCIT ASST.YEARS 2006-07 TO 2009-10 - 27 - 17/03/2008 RESPECTIVELY 3400 SHARES AND 2300 SHARES WERE GIFTED. ACCORDING TO AO, THE DONOR NAMELY, SHRI JAY ANT SANGHAVI IS NOT RELATED TO THE ASSESSEE. THE AO HAS NOTED THE MARKET VALUE OF THE SHARES WAS AT RS.65,83,830/-. THE ASSESSEE HAS PRODUCED THE GIFT- DEEDS AND OTHER EVIDENCES BUT ACCORDING TO AO THOSE WERE NOT THE CONCLUSIVE E VIDENCES. FINALLY, THE VALUE OF THE GIFTED SHARES OF RS.65,83,830/- WAS TA XED. 22. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, WHO H AS HELD THAT THE SAID ADDITION BEING MADE ON ACCOUNT OF NON-GENUINENESS OF THE GIF TS WAS NOTHING BUT PART OF THE TOTAL CONSIDERATION IN RESPECT OF THE GOTRI LAN D, HENCE TO BE TAXED IN THE YEAR OF TRANSACTION AND THE IMPUGNED AMOUNT WAS DEL ETED. 23. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CO NSIDERED VIEW THAT THE AO HAS CONNECTED THE IMPUGNED GIFT WITH THE SALE OF GO TRI LAND AND THAT ISSUE IS YET TO BE DECIDED IN AY 2009-10, THEREFORE THE LD.C IT(A) HAS RIGHTLY HELD THAT THE GIFT BEING TRANSFERRED IN KIND HENCE NOT TO B E TAXED FOR THE YEAR UNDER CONSIDERATION. WE HEREBY AFFIRM THE FACTUAL AS WELL AS THE LEGAL FINDING OF THE CIT(A), HENCE THIS GROUND OF THE REVENUE IS HEREBY DISMISSED AND APPEAL IS DISMISSED. 8.WE FURTHER OBSERVE THAT TAX APPEAL NO.938 OF 2012 IN THE CASE OF CIT VS. KRUPESHBHAI N. PATEL WAS DISMISSED BY HON. JURISDI CTIONAL HIGH COURT VIDE ITS ORDER DATED 29 TH APRIL, 2013. THEREFORE, RESPECTFULLY FOLLOWING THE JUDGMENT OF HON. GUJARAT HIGH COURT AND THE DECISION OF THE CO- ORDINATE BENCH, WE ARE OF THE VIEW THAT LD. CIT(A) HAS RIGHTLY DELETED THE AD DITION OF RS.46,80,540/- AS THE GIFT WHICH WAS PART OF THE TOTAL GIFT RECEIVED BY F AMILY MEMBERS AT 4.70 CRORES FORMED PART OF THE UNDISCLOSED SALE CONSIDERATION O F GOTRI LAND WHICH TOOK PLACE DURING ASST. YEAR 2009-10 AND, THEREFORE, NO ADDITION WAS CALLED FOR DURING ASST. YEAR 2008-09. ACCORDINGLY NO INTERFERE NCE IS CALLED FOR WITH THE ORDER OF LD. CIT(A). WE UPHOLD THE SAME. THE GROUND RAISED BY THE REVENUE IS DISMISSED. DCIT V. TANMAY S. PATEL/I.T.SSA. NO.622 /AHD/2011/& CO. NO. 16/AHD/20112/A.Y.11-12 PAGE 10 OF 11 9. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THE THE ISSUE IS SQUARELY COVERED BY THE ABOVE DECISION. THEREFORE, FOLLOWING THE DECISION OF CO-ORDINATE BENCH AS DISCUSSED ABOVE AS WELL AS HON`BLE HIGH CO URT, WE HELD THAT THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 75,39 ,521 ON THE GROUND THAT SAME IS NOT LIABLE TO BE TAXED IN THE ASSESSMENT YEAR UNDER CON SIDERATION. ACCORDING WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT (A), ACCORDINGLY, SAME IS UPHELD. CONSEQUENTLY, THE SOLE GROUNDS OF APPEAL OF THE REVENUE IS THEREFORE, DISM ISSED. CROSS OBJECTION NO. 16/AHD/2012/A.Y. 2008-09/ BY TH E ASSESSEE. 10. SINCE, WE HAVE DISMISSED THE APPEAL OF THE REVENUE IN ABOVE PARAS OF THIS ORDER, THEREFORE, THE CROSS OBJECTION FILED BY THE ASSESSE E BECOMES INFRUCTUOUS. THEREFORE, IT IS TREATED AS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE STANDS DISMISSED. 12. THE ORDER PRONOUNCED IN THE OPEN COURT ON 09.04. 2019. SD/- SD/- (MADHUMITA ROY) (O.P. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED: 9 TH APRIL, 2019/OPM COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. TRUE COPY BY ORDER ASSISTANT REGISTRAR, AHMEDABAD