The ITO, Ward-9(3),, Ahmedabad v. Dr. Dinesh D.Patel, Ahmedabad

ITA 1796/AHD/2007 | 2004-2005
Pronouncement Date: 05-03-2010 | Result: Dismissed

Appeal Details

RSA Number 179620514 RSA 2007
Bench Ahmedabad
Appeal Number ITA 1796/AHD/2007
Duration Of Justice 2 year(s) 10 month(s) 4 day(s)
Appellant The ITO, Ward-9(3),, Ahmedabad
Respondent Dr. Dinesh D.Patel, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 05-03-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 05-03-2010
Date Of Final Hearing 24-02-2010
Next Hearing Date 24-02-2010
Assessment Year 2004-2005
Appeal Filed On 01-05-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD - AHMEDABAD A BENCH (BEFORE SHRI G.D. AGARWAL VICE-PRESIDENT AND SHRI T.K. SHARMA JUDICIAL MEMBER) ITA NO.1796/AHD/2007 WITH CO NO.153/AHD/2007 [ASSTT.YEAR : 2004-2005] ITO WARD-9(3) AHMEDABAD. VS. DR.DINESH D.PATEL C/O. DEVSYA UROLOGICAL HOSPITAL 1 ST FLOOR SANJIVANI HOSPITAL AHMEDABAD. ITA NO.1797/AHD/2007 WITH CO NO.154/AHD/2007 [ASSTT.YEAR : 2004-2005] ITO WARD-9(3) AHMEDABAD. VS. DR.NITABEN D. PATEL C/O. DEVSYA UROLOGICAL HOSPITAL 1 ST FLOOR SANJIVANI HOSPITAL AHMEDABAD. REVENUE BY : SHRI ANIL KUMAR ASSESSEE BY : SHRI PRITESH SHAH DATE OF ORDER RESERVED : 24-02-2010 O R D E R PER SHRI G.D. AGARWAL VICE-PRESIDENT : THESE ARE APPEALS BY THE REVENUE AND THE CROSS OBJECTIONS BY THE ASSESSEES AGAINST THE ORDERS OF THE CIT(A)-XV AHMEDABAD BOTH DATED 9 -2-2007. SINCE THE FACTS AND GROUNDS RAISED IN BOTH THE APPEALS AN D THE CROSS-OBJECTIONS ARE SIMILAR FOR THE SAKE OF CONVENIENCE WE DISPOS E OF BOTH APPEALS AND CROSS OBJECTIONS BY THIS COMMON ORDER. PAGE - 2 ITA NO.1796 AND 1797/AHD/2007 WITH CO NO.153 AND 154/AHD/2007 -2- 2. FIRST WE SHALL TAKE UP THE REVENUES APPEAL IN I TA NO.1796/AHD/2007 IN THE CASE OF DR.DINESH D. PATEL. THE FIRST GROUND RAISED BY THE REVENUE IN THIS APPEAL READS AS UNDER : 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.7 79 019/- ON ACCOUNT OF UNEXPL AINED CREDIT IN THE CAPITAL ACCOUNT BY WAY OF GIFT. 3. AT THE TIME OF HEARING BEFORE US IT IS STATED B Y THE LEARNED DR THAT DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSME NT YEAR UNDER CONSIDERATION THE ASSESSEE HAS RECEIVED THE GIFT O F US $ 10500 FROM SHRI KETAN C. PATEL WHO IS NOT A RELATIVE OF THE ASSESSE E. THAT AS PER THE DECISION OF THE HONBLE HIGH COURT OF PUNJAB AND HA RYANA IN THE CASE OF YASH PAL GOEL VS. CIT 181 TAXMAN 175 WHERE A CLAIM OF GIFT IS MADE BY THE ASSESSEE THE ONUS LIES ON HIM NOT ONLY TO E STABLISH IDENTITY OF THE PERSON MAKING THE GIFT BUT ALSO HIS CAPACITY TO MAK E A GIFT AND THAT IT HAS ACTUALLY BEEN RECEIVED AS A GIFT FROM THE DONOR. HE SUBMITTED THAT IN THIS CASE THE ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE T HE ONUS WHICH LIES UPON HIM BECAUSE THE DONOR IS NOT A RELATIVE OF THE ASS ESSEE AND THERE IS NO RECIPROCAL GIFT FROM THE SIDE OF THE ASSESSEE. THE GENUINENESS OF THE GIFT HAS NOT BEEN ESTABLISHED BY THE ASSESSEE. HE FURTH ER SUBMITTED THAT THE ORDER OF THE CIT(A) ON THIS POINT SHOULD BE REVERSE D AND THAT OF THE AO BE RESTORED. 4. THE LEARNED COUNSEL FOR ASSESSEE ON THE OTHER H AND POINTED OUT THAT THE DONOR IS RELATIVE OF THE ASSESSEE. HE IS COUSIN. HE REFERRED TO THE AFFIDAVIT OF THE DONOR WHICH IS PLACED AT PAGE NO.1 6 OF THE ASSESSEES PAPER-BOOK AND POINTED OUT THAT THE DONOR HAS MENTI ONED IN CLEAR WORDS THAT THE DONEE IS HIS UNCLE AND WHEN HE WAS IN INDI A HE WAS BROUGHT UP AT PAGE - 3 ITA NO.1796 AND 1797/AHD/2007 WITH CO NO.153 AND 154/AHD/2007 -3- THE RESIDENCE OF THE DONEE. HE HAS ALSO MENTIONED IN THE AFFIDAVIT HIS PASSPORT PARTICULARS SOCIAL SECURITY NUMBER AND SO URCE OF INCOME. HIS ANNUAL INCOME IS US$ 1 80 000. COPY OF HIS BANK AC COUNT IS ALSO GIVEN. HE THEREFORE SUBMITTED THAT THESE FACTS CLEARLY DIS CHARGE THE ONUS LIES UPON THE ASSESSEE. 5. WE HAVE CAREFULLY CONSIDERED ARGUMENTS OF BOTH T HE SIDES AND PERUSED MATERIAL PLACED BEFORE US. THE AFFIDAVIT O F THE DONOR WAS FURNISHED BEFORE THE AO. IN THIS AFFIDAVIT THE DO NOR HAS AFFIRMED HAVING GIVEN THE GIFT OF US$ 10500 TO THE ASSESSEE. HE HA S ALSO MENTIONED THAT THE DONEE IS HIS UNCLE AND WHEN HE WAS IN INDIA HE WAS STAYING AT THE RESIDENCE OF THE DONEE. HE HAS ALSO GIVEN THE SOUR CE OF INCOME HIS SOCIAL SECURITY NUMBER AND DRIVING LICENCE ISSUED IN NEW Y ORK STATE WHICH PROVE HIS IDENTITY BEYOND DOUBT. AT PAGE NO.12 OF THE ASSESSEES PAPER- BOOK THE COPY OF THE BANK STATEMENT IS THERE WHICH SHOWS THE CREDIT BALANCE AS ON 31 ST JULY 2003 AMOUNTING TO US$ 47 908. OUT OF WHICH A CHEQUE OF US$ 10 500 WAS ISSUED TO THE ASSESSEE IN THE MONTH OF AUGUST 2003 AND AFTER SOME OTHER WITHDRAWAL THE BALANCE A S ON 29 TH AUGUST 2003 WAS US $ 33 942. THUS IN VIEW OF TOTALITY OF THE ABOVE FACTS WE AGREE WITH THE FINDING OF THE CIT(A) THAT THE ASSES SEE HAS BEEN ABLE TO DISCHARGE THE ONUS OF PROVING THE GIFT. THE IDENTI TY AND CREDIT WORTHINESS OF THE DONOR AS WELL AS GENUINENESS OF THE GIFT ARE ALL ESTABLISHED BY THE ASSESSEE. WE THEREFORE UPHOLD THE ORDER OF THE CIT(A) ON THIS POINT AND REJECT GROUND NO.1 OF THE REVENUES APPEAL. 6. GROUND NO.2 READS AS UNDER: PAGE - 4 ITA NO.1796 AND 1797/AHD/2007 WITH CO NO.153 AND 154/AHD/2007 -4- THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING TO ALLOW THE DEPRECIATION ON NURSING HOME @ 10% ON WDV BASIS . 7. AT THE TIME OF HEARING BEFORE US BOTH THE PARTI ES FAIRLY AGREED THAT THIS ISSUE IS NOW SETTLED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. DR.B.V ENKATA RAO 243 ITR 81. RESPECTFULLY FOLLOWING THE SAME WE UPHOLD THE ORDER OF THE CIT(A) AND REJECT GROUND NO.2 OF THE REVENUES APPE AL. 8. GROUND NO.3 AND 4 OF THE REVENUES APPEAL ARE OF GENERAL NATURE AND NEED NO SEPARATE ADJUDICATION. ASSESSEES CO NO.153/AHD/2007 9. THE ASSESSEES CO IS ONLY IN SUPPORT OF THE ORDE R OF THE CIT(A). ACCORDINGLY WE DISMISS THE CO BEING INFRUCTUOUS. ITA NO.1797/AHD/2007 10. IN THIS APPEAL OF THE REVENUE THE FOLLOWING GR OUNDS ARE RAISED: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.4 57 00/- ON ACCOUNT OF UNEXPLA INED CREDIT IN THE CAPITAL ACCOUNT BY WAY OF GIFT. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING TO ALLOW THE DEPRECIATION ON NURSING HOME @ 10% ON WDV BASIS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 4. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. PAGE - 5 ITA NO.1796 AND 1797/AHD/2007 WITH CO NO.153 AND 154/AHD/2007 -5- 11. AT THE TIME OF HEARING BEFORE US BOTH THE PART IES AGREED THAT ALL THE GROUNDS ARE IDENTICAL TO GROUNDS RAISED IN THE CASE OF DR.DINESH D. PATEL. BOTH THE PARTIES AGREED THAT THE FACTS IN THE PRESE NT CASE IS IDENTICAL TO THE FACTS STATED IN THE CASE OF DR.DINESH D. PATEL AND THEREFORE THEIR ARGUMENTS WOULD BE THE SAME AS ADVANCED IN THE CASE OF DR.DINESH D. PATEL. 12. WE HAVE ALREADY CONSIDERED THE ARGUMENTS OF BOT H THE PARTIES IN THE CASE OF DR.DINESH D. PATEL. THE FACTS OF THE A SSESSEE IN THE PRESENT CASE ARE IDENTICAL EXCEPT IN THE FIGURE. IN THE CA SE OF DR.DINESH D. PATEL THE GIFT AMOUNT IN QUESTION WAS US$ 10 500 AND IN T HE CASE OF DR.NITA D. PATEL THE GIFT AMOUNT IS US $ 10 015. FOR THE DETA ILED DISCUSSION WE HAVE MADE IN THE CASE OF DR.DINESH D. PATEL (SUPRA) WE UPHOLD THE ORDER OF THE CIT(A) ON THE GROUND NOS.1 AND 2IN THE CASE OF THE ASSESSEE ALSO. 13. GROUND NO.2 AND 3 BEING GENERAL IN NATURE NEED NO SEPARATE ADJUDICATION AND HENCE DISMISSED. 14. IN RESULT BOTH APPEALS OF THE REVENUE AND THE CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 5 TH MARCH 2010. SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 05-03-2010 PAGE - 6 ITA NO.1796 AND 1797/AHD/2007 WITH CO NO.153 AND 154/AHD/2007 -6- COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR ITAT AHMEDABAD