ITO WD 13(1)(3), MUMBAI V. KAILASH A KOTHARI, MUMBAI

MA 459/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8964 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 04-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHATURVEDI
• Assessee Lawyers: SUCHEK ANCHLIAY
• Keywords: Gift; Rectification of order

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI AMARJIT SINGH (JM) M.A. NO. 459/MUM/2018 ARISING OUT OF I.T.A. NO. 2334 /MUM/ 2012 (ASSESSMENT YEAR 20 07 - 08 ) MR. KAILASH A. KOTHARI 128/130, SARANG STREET MUMBAI - 4 00 003. PAN:AAEPK4502D V S . ITO WARD 13(1)(3) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI SUCHEK ANCHLIAY DEPARTMENT BY SHRI V.K. CHATURVEDI DATE OF HEARING 12 . 4 . 201 9 DATE OF PRONOUNCEMENT 24 . 6 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - BY WAY OF THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE ORDER OF THIS TRIBUNAL IN ITA NO. 2334/MUM/2012 FOR A.Y. 2007 - 08 VIDE ORDER DATED 1.11.2017. IN THE SAID ORDER THE ITAT HAS REJECTED THE ASSESSEES CLAIM OF GIFT FROM DAUGHTERS WHO WERE THEMSELVES STUDYING AND SON WHO HAS JUST TAKEN UP A JOB. THE ITAT ALSO REJECTED EXPLANATION OF GIFT COMING FROM OPENING BALANCE ON THE FINDING THAT NO DETAILS WERE AVAILABLE. THE ITAT CONCLUDED IN AS UNDER : - 10. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT IN THIS CASE THE ASSESSEE HAS CLAIMED TO HAVE RECEIVED A GIFT OF RS.11 LACS FROM HIS ELDER SISTER. THE SISTER HAD SHOWN STATEMENT OF IN COME OF RS.93,112/ - FOR ASSESSMENT YEAR 2007 - 08. NO RETURN OF INCOME WAS FILED. THE SOURCE OF GIFT IN THE HANDS OF THE SISTER HAS BEEN FURTHER EXPLAINED AS GIFT FROM HER TWO DAUGHTERS AND SON AT RS.3,00,000/ - , RS.3,50,000/ - AND RS.2,80,000/ - RESPECTIVELY. REST AMOUNTS HAVE BEEN CLAIMED TO HAVE COME FROM THE OPENING BALANCES IN THE HANDS OF THE ASSESSEE. THE DAUGHTERS ARE STILL STUDENTS AND THE SON HAS JUST TAKEN UP A JOB. THESE PERSONS ARE ITA NO. 2334/MUM/2012 (A.Y. 2007 - 08) KAILASH A. KOTHARI VS. ITO NOT FILING THE RETURN OF INCOME. MR. KAILASH A. KOTHARI 2 NO STATEMENT OF BANK ACCOUNT OF THE SAID DONOR HAS BEEN PRODUCED. NO DETAIL OF THE WORKING OF THE OPENING BALANCE IN HER HAND HAS BEEN PRODUCED. THE HUSBAND OF THE SISTER IS AN ACCOUNTANT WITHOUT MUCH INCOME. IN THIS FACTUAL SCENARIO, WE FIND THAT IT IS ABUNDANTLY CLEAR THAT THE SAID DONOR DID NOT HAVE THE CAPACITY TO GRANT THE GIFT OF RS.11 LACS TO THE ASSESSEE. HENCE, AS THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS REGARDING COGENTLY PROVING THE CAPACITY OF THE DONOR TO GI VE THE GIFT. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT - A. 11. THE CASE LAWS RELIED UPON BY THE LEARNED COUNSEL OF THE ASSESSEE ARE NOT APPLICABLE ON THE FACTS OF THE CASE. IN NONE OF THOSE CASES, IT WAS EMANATING THAT GIFTS SHOULD BE ALLOWED WHEN IT IS ABUNDANTLY CLEAR THAT THE DONOR HAD NO CAPACITY TO GIVE THE GIFT. 2. NOW BY WAY OF THIS MISCELLANEOUS APPLICATION IT IS SUBMITTED THAT VARIOUS EVIDENCES OF GIFTS WERE NOT PROPERLY APPRECIATED BY THE ITAT. THE DECLARATION OF GIFT WAS ALSO FILED. THAT GIFT DEED IS ALSO FILED. IT HAS BEEN SUBMITTED THAT THE ITAT ORDER HAS BEEN GIVEN WITHOUT TAKING INTO ACCOUNT THESE VITAL DOCUMENTS. IT HAS BEEN SUBMITTED THAT THE ASSESSEE CANNOT BE REQUIRED TO EXPLAIN SOURCES OF SOURCE. IT HAS BEEN SUBMITTED THAT THE GIFT WAS GIVEN TO TAKE CARE OF THE TREATMENT OF MEDICAL URGENCY. 3. IN THE ABOVE BACKGROUND, THE ASSESSEE SUBMITS THAT THE ITAT ORDER SUFFERS FROM MISTAKE APPARENT FROM RECORD AND HENCE PRAYS THAT MISTAKE MAY KINDLY BE RECTIFIED. 4. PER CONTRA , LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS CLEARLY SEEKING REVIEW OF THE ORDER IN THE GARB OF RECTIFICATION OF MISTAKE WHICH IS NOT AT PERMISSIBLE. 5. UPON CAREFUL CONSIDERATION AND GOING THROUGH THE ORDER OF THE ITAT AS MENTIONE D ABOVE , AND THE MISTAKE POINTED OUT BY THE ASSESSEE HEREINABOVE, IT IS CLEAR THAT THE ASSESSEE SEEKS REVIEW OF THE ORDER, WHICH IS NOT PERMISSIBLE MR. KAILASH A. KOTHARI 3 U/S. 254(2) OF THE I.T. ACT. HENCE, THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 24 . 6 . 201 9 . SD/ - SD/ - (AMARJIT SINGH ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 24 / 6 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI