Anuj S. Shah v. The Income Tax Officer, Range 16(2)(4), Mumbai
[Citation -2016-LL-1014-54]

Citation 2016-LL-1014-54
Appellant Name Anuj S. Shah
Respondent Name The Income Tax Officer, Range 16(2)(4), Mumbai
Court ITAT-Mumbai
Relevant Act Income-tax
Date of Order 14/10/2016
Assessment Year 2009-10
Judgment View Judgment
Keyword Tags sale consideration • capital account • sale of gold • sale proceed
Bot Summary: The only issue in this appeal of the assessee is against the order of the CIT in confirming the action of the AO in assessing the sale consideration of the gold bars as income from other sources as against the claim of the assessee as long term capital gain. The AO has not believed the explanation of the assessee and treated the consideration received from sale of gold bar as income from other sources and assessed the same accordingly. Aggrieved, the assessee preferred appeal before the CIT who also rejected the contentions of the assessee by observing that the assessee could not file the evidence by way of wealth tax return of his grandfather showing possession of the gold bar, which he could have gifted to him. Before us as well as before the lower authorities, the assessee has filed copy of statement of account of Bank of Baroda of Shri Indravadan M. Shah and Mrs. Chandrika I. Shah, grandfather and grandmother of the assessee in whose names approximately 75 notes of 1000 denomination was declared with the Government in 1978-79, which clearly shows that they were having savings to the extent of Rs.75,000/- and invested in purchase of these gold bar, which was subsequently gifted to the assessee in 1990 at the time of his birth. 3 ITA No.377/Mum/2014 The learned Counsel for the assessee argued that after 1992-93, the assessee s income was clubbed with the parents by implication of the provisions of Section 64 of the Act and the assessments were framed accordingly. The learned Counsel for the assessee stated that these evidences are sufficient to prove the possession of gold bar which were eventually sold through one Shree Darshan on 24-03-2009 and the sale proceed was credited in the assessee s bank account maintained with Bank of Baroda on 28-03-2009 amounting to Rs.14.22 lacs. In view of the above facts and circumstances, we are of the considered opinion that the assessee is able to prove the possession of the gold bar as he has received the same from his grandfather and the same is declared in the income tax returns for assessment years 1990-91 to 1992-93 along with capital accounts attached with these returns.


IN INCOME TAX APPELLATE TRIBUNAL BENCH, MUMBAI BEFORE SRI MAHAVIR SINGH, JM AND SRI N. K. PRADHAN, AM ITA No.377/Mum/2014 (A.Y:2009-10) Shri Anuj S. Shah, 6A, 1st Floor, Vs. Income Tax Officer, Anand Mahal, Babulnath Road, Range 16(2) (4), Mumbai 400 007 Mumbai- 400 007 PAN:BJPDS 3198C Appellant .. Respondent Appellant by .. Ms. Kshipra Singhvi, AR Respondent by .. Shri Ravi Ramchandran, Sr. DR Date of hearing .. 14-10-2016 Date of pronouncement .. 14- 10- 2016 ORDER PER MAHAVIR SINGH, JM: This appeal by assessee is arising out of order of CIT (A)-27, Mumbai in appeal No.CIT(A)-27/16(2)(4)/461/2011-12 dated 28-10-2013. Assessment was framed by ITO, Ward 16(2)(4), Mumbai for assessment year 2009-10 vide his order dated 23-12-2011 u/s 143(3) of Income Tax Act, 1961 (hereinafter Act ). 2. only issue in this appeal of assessee is against order of CIT (A) in confirming action of AO in assessing sale consideration of gold bars as income from other sources as against claim of assessee as long term capital gain. 3. At outset, it is noticed that assessee while filing Memo of Appeal has filed incomplete assessment order i.e. page 4 of assessment order is missing. When query was put to learned Counsel of assessee, she filed copy of letter No.ITO 19 (1) (1)/RTI/Anuj S Shah/ 2016-17 dated 10-05-2010 whereby ITO, Ward -19 (1) (1), Mumbai has supplied information under Right to Information Act on application of assessee whereby he has again supplied incomplete assessment order i.e. page 4 of assessment was missing. When records were called for from assessment order also, it is noticed that relevant page 4 whereby finding of AO is recorded is also missing. In such circumstances, we have proceeded to decide issue in absence of 2 ITA No.377/Mum/2014 findings of AO, which is on page 4 and which is missing, but based on material available before us. 4. Brief facts leading to above issue are that assessee claimed to have sold gold bar of 948 grams for total consideration of Rs.14.22 lacs vide sale bill issued by Shree Darshan dated 24-03-2009. assessee claimed that this gold bar was gifted by his grandfather Shri Indravadan M. Shah on occasion of his birth in year 1990. AO has not believed explanation of assessee and treated consideration received from sale of gold bar as income from other sources and assessed same accordingly. Aggrieved, assessee preferred appeal before CIT (A) who also rejected contentions of assessee by observing that assessee could not file evidence by way of wealth tax return of his grandfather showing possession of gold bar, which he could have gifted to him. According to him, income tax returns of assessee along with copy of capital account and that also written by hand and without income tax department s seal was filed, which according him is in nature of self-serving documents. Accordingly, he rejected explanation of assessee and confirmed addition. Aggrieved, now assessee is in second appeal before Tribunal. 5. We have heard rival contentions and gone through facts and circumstances of case. Before us as well as before lower authorities, assessee has filed copy of statement of account of Bank of Baroda of Shri Indravadan M. Shah and Mrs. Chandrika I. Shah, grandfather and grandmother of assessee in whose names approximately 75 notes of 1000 denomination was declared with Government in 1978-79, which clearly shows that they were having savings to extent of Rs.75,000/- and invested in purchase of these gold bar, which was subsequently gifted to assessee in 1990 at time of his birth. assessee also filed copy of acknowledgement of return filed by assessee for assessment year 1990-91 when he was minor and assessee continued filing his return of income for assessment year 1991-92 and 1992-93. Along with these returns, copy of capital account was filed in which assessee has declared gold bar and this proof has not been negated by Revenue. 3 ITA No.377/Mum/2014 learned Counsel for assessee argued that after 1992-93, assessee s income was clubbed with parents by implication of provisions of Section 64 (1A) of Act and assessments were framed accordingly. assessee s grandmother also filed letter dated 05-11-2011 stating as under:- This is to certify that Mr. Indravadan Shah gifted gold bar of to his grand sons and daughters on various occasions of their birth days. Out of them, gold bar weighing 948.00 grams was gifted by him on occasion of his birth in year 1990. Further this is certified that same gold was procured by Mr. Indravadan Shah out of his savings. Since Mr. Indravadan Shah is no more so it is not feasible to produce invoice of same for verification. learned Counsel for assessee stated that these evidences are sufficient to prove possession of gold bar which were eventually sold through one Shree Darshan on 24-03-2009 and sale proceed was credited in assessee s bank account maintained with Bank of Baroda on 28-03-2009 amounting to Rs.14.22 lacs. 6. In view of above facts and circumstances, we are of considered opinion that assessee is able to prove possession of gold bar as he has received same from his grandfather and same is declared in income tax returns for assessment years 1990-91 to 1992-93 along with capital accounts attached with these returns. assessee is also able to prove sale of gold bar and these evidences have not been negated by Revenue. In such circumstances, we are of view that assessee has rightly declared consideration from sale of gold bar as long term capital gain. We, accordingly, reverse orders of lower authorities and allow this issue of assessee s appeal. 7. In result, appeal of assessee is allowed. Order pronounced in open court on 14-10-2016. Sd/- Sd/- (N. K. PRADHAN) (MAHAVIR SINGH) ACCONTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 14-10-2016 Lakshmikanta Deka/Sr.PS 4 ITA No.377/Mum/2014 Copy of Order forwarded to: 1. Appellant 2. Respondent. 3. CIT (A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, Assistant Registrar ITAT, MUMBAI Sr. Particulars Date Initials Member No. Concerned 1 Dictation given on 19/10/16 LK Deka JM 2 Draft placed before author 20/10/16/ 24/10/16 3 Draft proposed/placed before second Member 4 Draft discussed/approved by Second member 5 Approved Draft comes to Sr.PS 6 Kept for pronouncement on 7 File sent to Bench Clerk 8 Date on which file goes to Head Clerk 9 Date of dispatch of Order Anuj S. Shah v. Income Tax Officer, Range 16(2)(4), Mumbai
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