ACIT CIR 19(3), MUMBAI v. ALTAF MANSURI, MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI. BEFORE SHRI R.V. EASWAR SENIOR VICE-PRESIDENT AND SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER. I.T.A. NO. 5 046/MUM/2008. ASSESSMENT YEAR : 2004-05. ASSTT. COMMISSIONER OF ALT AF H. MANSURI INCOME TAX CIR.19(3) VS. NOVE LTY FURNISHINGS MUMBAI. 249 NAVAL KUNJ LINKING ROAD OFF NATIONAL COLLEGE BANDRA EAST(WEST) MUMBAI 400 050. PAN : AAKPM5642G APPELLANT RESPONDENT I.T.A. NO. 5052 /MUM/2008. ASSESSMENT YEAR : 2004-05. ASSTT. COMMISSIONER OF ABD ULLAH H. MANSURI INCOME TAX CIR.19(3) VS. MUMB AI. MUMBAI. PAN : AFPPM6965G APPELLANT RESPONDENT APPELLANT BY : SHRI VIKRAM GAUR RESPONDENT BY : SHRI VIJAY KOTHARI. O R D E R PER J. SUDHAKAR REDDY A.M. THE REVENUE HAS FILED THESE TWO APPEALS CHALLENGI NG THE IMPUGNED ORDERS OF THE LEARNED CIT(APPEALS)-XIX MU MBAI DATED 23 RD MAY 2008 FOR THE ASSESSMENT YEAR 2004-05 AND THESE APPEALS RELATE TO TWO DIFFERENT ASSESSEES WHO ARE THE MEMBERS OF MANS URI FAMILY. THE ISSUE AS WELL AS THE FACTS ARE IDENTICAL IN BOTH TH ESE APPEALS. HENCE FOR 2 THE SAKE OF CONVENIENCE THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER. 2. THE REVENUE HAS TAKEN THE MULTIPLE GROUNDS WHIC H ARE IDENTICAL IN BOTH THESE APPEALS WHICH READ AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) XIX MUMBAI ERRED IN HOLDING THAT THE LONG TERM CAPITAL GAIN RECEIVED BY THE ASSESSEE IN THE SCRIP SURYADEEP SALT & CHEMICAL WAS A GENUINE TRANSACTION ESPECIALLY WHEN THE CIT(A) HAS NOT COUN TERED THE DEEP INVESTIGATION DONE BY THE A.O. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY A.O. ESPECIA LLY WHEN SOME OF THE FACTUAL ASPECT HAS BEEN WRONGFULLY INTERPRETED BY CIT(A). 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN HOLDING THAT THE TRANSACTION WAS GENUINE W ITHOUT APPRECIATING THE FACTS OF THE CASE UNDER CONSIDERAT ION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN CONCLUDING THAT THE TRANSACTION OF SURYADE EP SALT IS GENUINE ONE WHEN THE RATIO OF THE CASE OF SOMNATH MANI (100 TTJ 919) CLEARLY SAYS IF FACTS AND CIRCUMSTANCES SO WARRANT THAT IT DOES NOT ACCORD WITH THE TEST OF HUMAN PROBABILITIES TRANSA CTIONS HAVE BEEN HELD TO BE NON-GENUINE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN HOLDING THAT THE ADDITION OF 15% OF CAPIT AL GAIN AS COMMISSION FOR ARRANGING THE GIFT IS UNWARRANTED IN TE SITUATION WHEN THERE IS A CONFESSIONAL STATEMENT OF MR. SHAH TO RE CEIVE THE COMMISSION AND OPPORTUNITY TO CROSS EXAMINE HAS BEE N GIVEN TO ASSESSEE. 3. WE HAVE HEARD MR. VIKRAM GAUR LEARNED DR AND M R. VIJAY KOTHARI LEARNED COUNSEL FOR THE ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR A TTENTION TO THE DECISION OF THE TRIBUNAL I BENCH MUMBAI IN ITA NO. 5050/MUM/2008 AND ITA NO. 5051/MUM/2008 ORDER DATED 23 RD FEB. 2010 IN THE CASE OF OTHER ASSESSEES OF MANSURI FAMI LY AND CONTENDED THAT THE ISSUES INVOLVED IN THIS CASE ARE IDENTICAL TO T HE ISSUES DECIDED BY THE 3 TRIBUNAL. THE LEARNED DR THOUGH NOT LEAVING HIS GR OUND ULTIMATELY AGREED THAT THE TRIBUNAL HAS ADJUDICATED UPON THE SAME ISSUES WHICH ARE INVOLVED IN THIS CASE. 5. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES O F THE CASE GOING THROUGH THE PAPERS ON RECORD AND THE ORDERS O F THE AUTHORITIES BELOW WE FIND THAT THE ISSUES INVOLVED IN THIS CAS E ARE COVERED BY THE DECISION IN ITA NO. 5050/MUM/2008 AND ITA NO. 5051/ MUM/2008 DATED 23 RD FEB. 2010. ACCORDINGLY WE UPHOLD THE ORDERS OF T HE CIT(APPEALS) AND DISMISS THESE APPEALS OF THE REVEN UE. 6. IN THE RESULT THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THIS 16 TH DAY OF APRIL 2010. SD/- SD/- (R.V. EASWAR) (J. SUDHAKAR REDDY) SENIOR VICE-PRESIDENT. ACCOUNTANT MEMBER. MUMBAI DATED : 16 TH APRIL 2010. COPY FORWARDED TO : 1. APPELLANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR G-BENCH. (TRUE COPY) BY ORDER ASSTT. REGISTRAR ITAT MUMBAI BENCHES MUMBAI. WAKODE