The ITO, Ward 5 (1), RAJKOT-GUJARAT v. Shri Prashant M Radhanpura, RAJKOT-GUJARAT

ITA 317/RJT/2008 | 2003-2004
Pronouncement Date: 21-07-2011 | Result: Allowed

Appeal Details

RSA Number 31724914 RSA 2008
Assessee PAN AEAPR1335P
Bench Rajkot
Appeal Number ITA 317/RJT/2008
Duration Of Justice 3 year(s) 1 month(s) 16 day(s)
Appellant The ITO, Ward 5 (1), RAJKOT-GUJARAT
Respondent Shri Prashant M Radhanpura, RAJKOT-GUJARAT
Appeal Type Income Tax Appeal
Pronouncement Date 21-07-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 21-07-2011
Date Of Final Hearing 16-12-2015
Next Hearing Date 16-12-2015
Assessment Year 2003-2004
Appeal Filed On 04-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.317/RJT/2008 (ASSESSMENT YEAR 2003-04) ITO WD.5(1) VS SHRI PRASHANT MAHENDRA RADHANPUR A RAJKOT 1 R.K. COMMERCIAL CENTRE PALACE ROAD RAJKOT PAN : AEAPR1335P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MK SINGH RESPONDENT BY: SHRI DM RINDANI O R D E R PER N.R.S. GANESAN JM THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A)-IV AHMEDABAD DATED 31-03-2008 AND PERTAINS TO ASSESSME NT YEAR 2003-04. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS UNEXP LAINED GIFT RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. 3. DURING THE COURSE OF HEARING BOTH THE REPRESENTA TIVES FOR THE REVENUE AND THE ASSESSEE VERY FAIRLY CONCEDED THAT THIS ISSUE WAS C ONSIDERED BY THE TRIBUNAL IN ITA NO.438/RJT/2005 & ORS IN THE CASE OF JAYANTILAL G K UNDALIYA & ORS ORDER DATED 24-06- 2011. BOTH THE REPRESENTATIVES FAIRLY SUBMITTED TH AT THE MATTER NEEDS TO BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER TO RE-CONSIDER TH E ISSUE IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS P MOHANA KALA (200 7) 291 ITR 278 (SC). 4. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF LOW ER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE L D.REPRESENTATIVES OF THE REVENUE AND THE ASSESSEE THE ISSUE ARISES FOR CONSIDERATION IS WITH REGARD TO THE RECEIPT OF GIFT. THE LOWER AUTHORITIES HAVE NOT CONSIDERED THE MATTER IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS P MOHANA KALA (2007) 29 1 ITR 278 (SC). THIS TRIBUNAL ON IDENTICAL SET OF FACTS IN ITA NO.438/RJT/2005 & ORS IN THE CASE OF JAYANTILAL G KUNDALIYA & ORS ORDER DATED 24-06-2011 HELD AS FOLLOWS: ITA NO.317/RJT/2008 2 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADM ITTEDLY CASH CREDIT WAS FOUND IN THE FORM OF NRI GIFT. THE ASSESSEE CL AIMED THAT THE DONOR IS A FRIEND. ADMITTEDLY THE DONOR IS NOT A RELATIVE OF THE ASSESSEE. NORMALLY THERE SHOULD BE AN OCCASION FOR GIVING GIFT BY A PE RSON WHO IS NOT BLOOD RELATIVE. IN CASE OF BLOOD RELATIVE ONE MAY SAY TH AT NO OCCASION IS REQUIRED FOR GIVING GIFT. MOTHER FATHER BROTHER SISTER MAY GIFT AT ANY TIME TO THEIR CHILDREN / GRAND CHILDREN BROTHER SISTER RESPECTIVELY. BUT THAT IS NOT THE CASE IN RESPECT OF OTHER PERSONS. NORMALLY THE THIRD PARTIES WOULD GIFT ON AN OCCASION. SUCH A GIFT IS ALSO NEEDS TO BE RECIPROCATED APPROPRIATELY. ALL THESE FACTS WOULD DEPENDENT UPON THE FACTS OF EACH CASE. ONE CANNOT LAY DOWN ANY RULE / PRESCRIPTION F OR GIVING / RECEIVING GIFTS. IT IS TO BE ESTABLISHED SATISFACTORILY DEPE NDING UPON THE FACTS OF EACH CASE. 18. WE FIND THAT THE APEX COURT IN THE CASE OF P MO HANA KALA (SUPRA) HAD AN OCCASION TO CONSIDER AN IDENTICAL SET OF FAC TS. IN THE CASE BEFORE THE APEX COURT THE ASSESSEE RECEIVED FOREIGN GIFT FROM A DONOR. THE PAYMENT WAS MADE THROUGH BANKING CHANNEL AND IT WAS CREDITED IN THE BANK ACCOUNT. THE DONOR IN THE CASE BEFORE APEX CO URT CLAIMED THAT HE WAS PAYING TAX IN ENGLAND AND HAD SUFFICIENT FUNDS FOR GIVING GIFT. THE APEX COURT FOUND THAT THE STATEMENT MADE BY THE DON OR IS A SELF-SERVING STATEMENT AND THERE IS NO MATERIAL EVIDENCE AS REGA RDS TO HIS FINANCIAL STATUS. ULTIMATELY THE APEX COURT FOUND THAT THE TRANSACTIONS THOUGH APPARENT WERE HELD TO BE NOT REAL ONES. MAY BE THE MONEY CAME BY WAY OF BANK CHEQUE AND WAS PAID THROUGH THE PROCESS OF BANKING TRANSACTION BUT THAT ITSELF IS OF NO CONSEQUENCE. IN FACT THE APEX COURT OBSERVED ON PAGE 289 OF THE ITR AS FOLLOWS: RELYING ON THE DECISIONS OF THIS COURT IN BEJOY G OPAL MUKHERJI V. PRATUL CHANDRA GHOSE AIR 1953 SC 153 AND ORIENT DI STRIBUTORS V. BANK OF INDIA LTD. AIR 1979 SC 867 SHRI IYER LEARNED S ENIOR COUNSEL CONTENDED THAT THE ISSUE RELATING TO THE PROPRIETY OF THE LEGAL CONCLUSION THAT COULD BE DRAWN ON THE BASIS OF PROVED FACTS GI VES RISE TO A QUESTION OF LAW AND THEREFORE THE HIGH COURT IS JUSTIFIED IN INTERFERING IN THE MATTER SINCE THE AUTHORITIES BELOW FAILED TO DRAW A PROPER AND LOGICAL INFERENCE FROM THE PROVED FACTS. WE ARE UNABLE TO PERSUADE O URSELVES TO ACCEPT THE SUBMISSIONS. THE FINDINGS OF FACT ARRIVED AT B Y THE AUTHORITIES BELOW ARE BASED ON PROPER APPRECIATION OF THE FACTS AND T HE MATERIAL AVAILABLE ON RECORD AND SURROUNDING CIRCUMSTANCES. THE DOUBT FUL NATURE OF THE TRANSACTION AND THE MANNER IN WHICH THE SUMS WERE F OUND CREDITED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE HAVE B EEN DULY TAKEN INTO CONSIDERATION BY THE AUTHORITIES BELOW. THE TRANSA CTIONS THOUGH APPARENT WERE HELD TO BE NOT REAL ONES. MAY BE THE MONEY CA ME BY WAY OF BANK CHEQUES AND PAID THROUGH THE PROCESS OF BANKING TRA NSACTION BUT THAT ITSELF IS OF NO CONSEQUENCE. IN VIEW OF THE ABOVE MERELY BECAUSE THE TRANSACTION WAS MADE THROUGH BANKING CHANNEL THAT ALONE WILL NOT PROVE THE GENUI NENESS OF THE ITA NO.317/RJT/2008 3 TRANSACTION. SOMETHING MORE IS REQUIRED TO BE PROV ED IN RESPECT OF FOREIGN GIFT. BOTH THE AUTHORITIES BELOW HAD NO OC CASION TO CONSIDER THIS JUDGMENT OF THE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). THE ASSESSEE HAD ALSO NO OCCASION TO EXPLAIN THE CONSEQ UENCE OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). THEREFORE IN OUR OPINION THE MATTER NEEDS TO BE R ECONSIDERED BY THE ASSESSING OFFICER IN THE LIGHT OF THE JUDGMENT OF T HE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA) AFTER GIVING ADEQUATE OPPO RTUNITY TO THE ASSESSEE. 19. WE HAVE ALSO GONE THROUGH THE DECISION OF THE M UMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MRS. ASHA HAMPANNAVAR ( SUPRA). IN THE CASE BEFORE THE MUMBAI BENCH OF THE TRIBUNAL THE DONOR WAS FOUND TO BE NOT A STRANGER TO THE ASSESSEE. THE MUMBAI BENCH AFTER EXAMINING THE FACTS OF THE CASE FOUND THAT THE GENUINENESS OF THE TRANS ACTION WAS ESTABLISHED BY THE ASSESSEE. ON FURTHER APPEAL BY THE REVENUE BEFORE THE BOMBAY HIGH COURT THE BOMBAY HIGH COURT FOUND THAT THERE IS ABSOLUTELY NO QUESTION OF LAW ARISE FOR CONSIDERATION. SIMILARLY THE APEX COURT REJECTED THE SPECIAL LEAVE PETITION OF THE REVENUE ON THE GR OUND THAT THE HIGH COURT FOUND THAT THE GIFT WAS GENUINE AND NO MATERI AL WAS AVAILABLE ON RECORD TO SHOW THAT THE CONFIRMATION WAS NOT CORREC T. THEREFORE IT IS CLEAR THAT EACH CASE HAS TO BE EXAMINED ON ITS OWN FACTS AND WE HAVE TO FIND OUT THE GENUINENESS OF THE TRANSACTION. THE DECISI ON OF THE MUMBAI BENCH OF THE TRIBUNAL UPHOLDING THE GENUINENESS OF THE TRANSACTION WAS CONFIRMED BY THE BOMBAY HIGH COURT ON THE GROUND TH AT THERE IS NO QUESTION OF LAW. NO LAW WAS LAID DOWN BY THE APEX COURT WHILE REJECTING THE SLP. HOWEVER IN THE CASE OF P MOHANA KALA (SU PRA) THE HONBLE APEX COURT EXAMINED THE ISSUE IN DEPTH AND CATEGORI CALLY HELD THAT MERELY BECAUSE THE TRANSACTION WAS MADE THROUGH BAN KING CHANNEL THAT ALONE WILL NOT ESTABLISH THE GENUINENESS OF THE TRA NSACTION. MOREOVER BOTH THE AUTHORITIES BELOW HAVE NOT EXAMINED THE I SSUE OF FOREIGN GIFT IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). THEREFORE IN OUR OPINION THE FACTS OF T HE CASE NEED TO BE EXAMINED IN THE LIGHT OF THE JUDGMENT OF THE HONBL E APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). ACCORDINGLY WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND REMAND BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE I SSUE AFRESH AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW A FTER CONSIDERING THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). NEEDLESS TO POINT OUT THAT THE ASSESSING OFFICER SHALL GIVE SUFFICIENT OPPORTUNITY TO THE ASSESSEE BEFORE DECID ING THIS ISSUE. IN VIEW OF THE ABOVE DECISION OF THE CO-ORDINATE BE NCH OF THIS TRIBUNAL ON IDENTICAL ISSUE THE MATTER NEEDS TO BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY THE ORDER OF THE LOWER AUTHORITY IS SET ASIDE AND THE I SSUE OF GIFT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH IN THE LIGHT OF JUDGMENT OF THE APEX C OURT IN THE CASE OF P MOHANA KALA ITA NO.317/RJT/2008 4 (SUPRA) AND THEREAFTER DECIDE THE SAME IN ACCORDANC E WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21-07-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT DT : 21 ST JULY 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-IV AHMEDABAD 4. THE CIT CENTRAL-II AHMEDABAD 5. THE DR I.T.A.T. RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT