Rajendra Raojibhai Patel, Surat V. Income Tax Officer, Ward-3(1), Surat

MA 24/SRT/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4766 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-02-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 27-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RECTIFICATION IN
• Keywords: Gift; Capital receipt
• Section: 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER MA NO.24/SRT/2019 IN ITA NO.3274/AHD/2015 FOR AY.2005-06 ( VIRTUAL HEARING) RAJENDRA RAOJIBHAI PATEL, TRUSHNA BUNGALOWS, OPP.SUMAN PARK, AMBIKA NIKETAN, ATJHWALINES, SURAT 395 007. PAN : AAVPP 8050 E VS THE INCOME TAX OFFICER, WARD-3(1), SURAT. APPLICANT RESPONDENT ASSESSEE BY SH. HIREN VEPARI - CA/ AR REVENUE BY MISS ANUPMA SINGHLA-SR. DR DATE OF HEARING 05.02.2021 DATE OF PRONOUNCEMENT 09.02.2021 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATIONS (MA) IS FILED BY THE ASSESSEE FOR RECTIFICATION IN THE ORDER DATED 15.10.2018 IN ITA NO.3274/AHD/2015/SRT. THE LEARNED AUTHORIZED REPRESENTATIVE (AR) FOR THE ASSESSEE SUBMITS THAT IN GROUND NO.2, THE ASSESSEE WAS CONTESTING ADDITION OF GIFT BY VARIOUS DONOURS WHO WAS RELATED WITH THE ASSESSEE. THE AMOUNTS WERE RECEIVED BY THE ASSESSEE YEARS BACK AS RECORDED BY TRIBUNAL. THE GIFTS WERE CREDITED TO THE ASSESSEES CAPITAL ACCOUNT FROM VARIOUS LOAN ACCOUNTS DURING THE YEARS AS THE DONOURS RELINQUISHED THEIR RIGHTS BY VARIOUS LETTERS, COPIES OF WHICH ARE PLACED ON RECORD. SUCH SURRENDER WERE AGGREGATING TO RS.6.54 LAKHS. THE TRIBUNAL CONFIRMED THE ADDITION GIFT IN PARA 13 OF THE MA NO.24/SRT/2019 IN ITA NO.3274/AHD/2015 RAJENDRA RAOJIBHAI PATEL (AY 2005-06) 2 ORDER. THE AR FOR ASSESSEE FURTHER SUBMITS THAT THE AMOUNTS OF GIFT WERE NOT RECEIVED DURING THE YEAR AND WOULD NOT QUALIFY FOR ADDITION FOR THE YEAR UNDER CONSIDERATION. THE ASSESSEE RELIED UPON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN CIT VS CHETAN CHEMICALS PVT. LTD., 267 ITR 770 WHEREIN IT WAS HELD THAT EVEN WRITE-OFF OF LOANS TANTAMOUNT TO CAPITAL RECEIPT NOT TAXABLE. THE AUTHORISED REPRESENTATIVE SUBMITS THAT THE TRIBUNAL WHILE CONFIRMING THE ADDITION IS NEITHER DISTINGUISHED NOR REFERRED THE DECISION IN CHETAN CHEMICALS PVT. LTD (SUPRA). IT WAS SUBMITTED THAT NON-CONSIDERATION OF DECISION IS A MISTAKE APPARENT ON RECORD AND THE ORDER IS LIABLE TO BE RECALLED FOR ADJUDICATION AFRESH. 2. ON THE OTHER HAND, THE DEPARTMENTAL REPRESENTATIVE(DR) FOR THE REVENUE SUBMITS THAT THERE IS NO MISTAKE APPARENT IN THE ORDER PASSED BY THE TRIBUNAL. THE ASSESSEE IS SEEKING REVIEW OF THE ORDER WHICH IS BEYOND THE SCOPE OF SECTION 254(2) OF THE ACT. THE LD.DR FOR THE REVENUE FURTHER SUBMITS THAT AT THE TIME OF MAKING SUBMISSION THE ASSESSEE FILED WRITTEN SUBMISSION BEFORE THE TRIBUNAL, COPY OF SOURCE SUBMISSION ARE STILL IN THE RECORD OF TRIBUNAL AS WELL AS IN HER BRIEF PROOF. THE LD.AR FOR ASSESSEE NOWHERE REFERRED THE DECISION OF HON'BLE GUJARAT HIGH COURT IN CIT VS. CHETAN CHEMICALS PVT. LTD.,(SUPRA) IN HIS WRITTEN SUBMISSION. THE LD.AR FOR ASSESSEE HAS NOW COME WITH A NEW PLEA FOR SEEKING MA NO.24/SRT/2019 IN ITA NO.3274/AHD/2015 RAJENDRA RAOJIBHAI PATEL (AY 2005-06) 3 THE REVIEW OF THE ORDER BY RAISING THE PLEA THAT CASE LAWS RELIED BY HIM IS NOT CONSIDERED. THE LD.DR FOR THE REVENUE PRAYED FOR DISMISSAL OF THE MISCELLANEOUS APPLICATION. 3. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTIES, GONE THROUGH THE CONTENTS OF MISCELLANEOUS APPLICATION AND THE ORDER PASSED BY OUR PREDECESSOR ON 15.10.2018. WE HAVE NOTED THAT OUR PREDECESSOR IN PARA 13 OF THE ORDER UPHELD THE ADDITION OF RS.6.54 LAKHS ON ACCOUNT OF GIFT IN A DETAILED AND REASONED ORDER. NOW, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAVE COME WITH THE PLEA THAT DECISION OF JURISDICTIONAL HIGH COURT IN CHETAN CHEMICALS PVT. LTD., (SUPRA) WAS RELIED BY HIM AND THAT THE SAME WAS NOT CONSIDERED BY THE TRIBUNAL. WE FIND THAT THE CONTENTION OF AUTHORISED REPRESENTATIVE IS DEVOID OF MERIT. THE DEPARTMENTAL REPRESENTATIVE NOWHERE IS WRITTEN SUBMISSION REFERRED THE DECISION OF CHETAN CHEMICALS PVT. LTD.,(SUPRA). EVEN ON PERUSAL OF RECORD, WE FIND THAT COPY OF OTHER DECISION RELIED BY LD.AR FOR ASSESSEE IS NOT AVAILABLE ON RECORD. AT THIS STAGE, IN OUR VIEW THE LD.AR FOR THE ASSESSEE CANNOT RAISE A NEW PLEA ABOUT MAKING RELIANCE ON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT WHEN THE SAME WAS NOT REFERRED OR RELIED WHILE FILING WRITTEN SUBMISSION OR AT THE TIME OF MAKING SUBMISSION ON VARIOUS GROUNDS OF APPEAL, THEREFORE, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. MA NO.24/SRT/2019 IN ITA NO.3274/AHD/2015 RAJENDRA RAOJIBHAI PATEL (AY 2005-06) 4 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 9 TH FEBRUARY 2021 BY PLACING RESULT ON THE NOTICE BOARD. SD/- SD/- (DR. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 9 TH FEBRUARY 2021/#SGR COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT