Shri Mahendra Singh Tomar , Ratlam V. ITO-1 Ratlam, Ratlam

MA 7/Ind/2022

AI Insights

The case involves Mahendra Singh Tomar, the appellant, who filed a Miscellaneous Application seeking rectification of a mistake in the Tribunal's order dated 11.11.2020 concerning the assessment year 2012-13. The application was based on the grounds that the Tribunal had erroneously remanded the matter concerning gifts received from his wife, father-in-law, mother-in-law, brother-in-law, and friends, whereas no additions were made by the AO regarding gifts from the father-in-law, mother-in-law, and brother-in-law. The Tribunal acknowledged the oversight and corrected the mistake, directing the AO to verify the gifts from the wife and friends only.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 127205 (ITAT-NA)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-06-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Indore
• Next Hearing Date: 11-05-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 26-04-2022
• Other Referred Cases: 441 ITR 722
• Laws Referred To: 441 ITR 722
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Rectification of order; Period of limitation; Time period of passing order; Set aside
• Section: 148; 12A

Judgement Text

आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER MA No.07/Ind/2022 (Arising out of I.T.A. No. 86/Ind/2018) Assessment Year : 2012-13 Mahendra Singh Tomar 243, Rajiv Nagar Ratlam (M.P.) बनाम/ Vs. I.T.O 1, Ratlam PAN No. : AJMPT 3321 J (अपीलाथ /Appellant) .. ( यथ / Respondent) Appellant by : Shri S.N. Agrawal, A.R. Revenue by : Shri Ashish Porwal Sr. D.R. Date of Hearing 12/05/2023 Date of Pronouncement 02.06.2023 ORDER Per Vijay Pal Rao, JM: By way of this Misc. Application of assessee is seeking rectification of mistake/clarification in the order dated 11.11.2020 of this Tribunal. 2. This Misc. Application was filed by the assessee on 27.04.2022 against order dated 11.11.2020 the AR of the appellant-assessee has submitted that the limitation was extended by the Hon’ble Supreme Court due to Covid-19 Pandemic and therefore the Misc. Application MA No.7/Ind/2022 Mahendra Singh Tomar 2 - filed by the assessee to be treated as within the period of limitation. Ld. DR has not disputed that the period from March 2020 to May 2022 are covered by the judgment of Hon’ble Supreme Court extending the limitation in suo-moto cognizance of extending the limitation reported in 441 ITR 722. 3. We have considered the rival submissions and perused the relevant record. The assessee has filed the present Misc. application on 27.04.2022 against the order of the Tribunal dated 11.11.2020. The Hon’ble Supreme Court in case of suo-moto cognizance of extending the limitation reported in 441 ITR 722 has passed the following directions: “5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions: (i) The order dated 23-3-2020 is restored and in continuation of the subsequent orders dated 8-3-2021, 27-4-2021 and 23- 9-2021, it is directed that the period from 15-3-2020 till 28-2- 2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. (ii) Consequently, the balance period of limitation remaining as on 3-10-2021, if any, shall become available with effect from 1-3-2022. iii. In cases where the limitation would have expired during the period between 15-3-2020 till 28-2- 2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply. IV. It is further clarified that the period from 15-3-2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.” MA No.7/Ind/2022 Mahendra Singh Tomar 3 - 4. Accordingly in view of the judgment of Hon’ble Supreme Court the Misc. application filed by the assessee is treated as within the period of limitation. 5. Ld. AR of the assessee has submitted that the Tribunal at page no.60 & 61 of the impugned order has remanded the matter in respect of the gift received from the assessee’s wife, father-in-law, mother-in-law, brother-in-law and his friend. He has pointed out that there was no addition made by the AO on account of gift received from the assessee’s father-in-law, mother-in-law, brother-in-law. There is an apparent mistake to that extent in the impugned order as the AO accepted the gift as genuine from the assessee’s father-in-law, mother-in-law, brother-in-law. Further in the case of wife, AO made part addition of Rs.29,4000/- only. Hence the Ld. AR of the assessee has submitted that only to that extent rectification of mistake/clarification is to be made. 6. On the other hand, Ld. DR has not disputed the fact that the AO has not made any addition on account of gift received from the assessee’s father-in-law, mother-in-law, brother-in-law of the assesse and in the case of wife, AO made part addition only. 7. We have considered the rival submission and carefully perused the impugned order of the Tribunal at page 60 & 61 which reads as under: “Now coming to the gift received from other persons. The assessee claimed to have received gift from his wife, father-in-law, mother-in- law, brother-in-law and his friend. These gifts need verification at the end of the assessing officer. The assessee is hereby directed to furnish the requisite evidences in support of the gift received from other relatives and friends more particularly mentioned in the assessment order. This ground of the assessee is partly allowed. Further, it was pointed out by the Sr. DR that the assessee himself had disclosed income of Rs.31,10,000/- in his return of income. MA No.7/Ind/2022 Mahendra Singh Tomar 4 - However, during the course of assessment proceedings itself assessee had retracted from the income disclosed in the return of income. It is also seen that in response to the notice u/s 148 the assessee has taken stand that substantial source of investment was gift from different persons. If it is proved that the investment is made out of gifts received, admittedly no other source of income is unearthed by the revenue. It is settled law that only the receipt that partake character of income is required to be taxed. If receipt is in the nature of gift which does not partake character of income would certainly be not taxable. Therefore, looking to the peculiarity of the facts of the present case the issue related to gift/loan received from wife, relatives and friend is restored to the file of the assessing officer for verification of veracity of the claim of the assessee. The AO is hereby directed to re-examine the issue of gift and loan of the aforesaid persons. If the claim of the assessee is found correct he would delete the remaining addition made in this respect. The grounds of the assessee are partly allowed in the terms indicated hereinabove.” 8. The Tribunal has set aside the issue of addition made by the AO on account of gift received from other persons namely assessee’s wife, father-in-law, mother-in-law, brother-in-law and his friends. In the Misc. application the assessee has pointed out that an apparent mistake has crept in the impugned order so far as gift received from the assessee’se, father-in-law, mother-in-law, brother-in-law are concerned, as the AO has not made any addition in respect of gift received from these three relatives. Further, the assesse received a gift of Rs.4,15,000/- from his wife, but the AO made addition of Rs.2,94,000/- only. This factual position has not been disputed by the Ld. DR. Accordingly, we modify the impugned order to the extent of setting aside the issue of gift received from the other persons and the AO is directed to verify the gift received by the assessee from his wife (to the extent of Rs.2,94,000/- only) and friends and there is no need to MA No.7/Ind/2022 Mahendra Singh Tomar 5 - examine the issue of gift received from father-in-law, mother-in-law, brother-in-law of the assesse. Accordingly the Misc. Application filed by the assessee is allowed. 9. In the result, Misc. appeal filed by the assessee is allowed. Sd/- Sd/- (B.M . BIYAN I) (VIJAY PAL RAO) ACCOUN TANT MEM BER JUDICIAL MEMBER Indore. Dated 02/06 /2023 Patel. Sr. PS आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. राज व / Revenue 2. आवेदक / Assessee 3. संबं धत आयकर आय ु &त / Concerned CIT 4. आयकर आय ु &त- अपील / CIT (A) 5. *वभागीय -त-न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड4 फाइल / Guard file. By order/आदेश से, S r . P r i v a t e S e c r e t a r y I . T . A . T . , I n d o r e Order pronounced in Open Court on 02/ 06 /2023