Indian Kanoon - Search engine for Indian Law

Income Tax Appellate Tribunal - Mumbai

Sudha Iyer, Mumbai vs Assessee

             IN THE INCOME TAX APPELLATE TRIBUNAL
                  MUMBAI BENCHES "E", MUMBAI

     BEFORE SHRI N.V. VASUDEVAN, (J.M.) SHRI R.K. PANDA (A.M.)

                        S.A. No. 196/MUM/2011
                Arising out of ITA No. 4886/Mum/2011
                       Assessment Year : 2006-07

Sudha Iyer,                                Income Tax Officer 19(3)(4),
B/212, Char Dham Co-Op. Hsg                Mumbai.
Society,
Road No. 1, TPS IV,                 Vs.
Bandra (W),
Mumbai - 400 050.
PAN : AACPI9337G
         (Applicant)                                 (Respondent)


                                     Shri K. Gopal
                       Applicant by :
                                     Shri Santendra Pandey
                     Respondent by : Shri A.K. Nayak

                                ORDER

PER N.V. VASUDEVAN, A.M.

This is an application filed by the assessee praying for an order of stay of recovery of outstanding demand pending disposal of the appeal by the assessee before the Tribunal.

2. The applicant is an individual. She has filed the return of income for the impugned assessment year declaring the net taxable income at ` 1,41,369/-. The returns were picked up for scrutiny assessment and the total income was determined at ` 21,41,370/- vide assessment order dated 30.9.2008 treating the receipt of ` 19,99,996/- as taxable gift u/s 56(2)(v) of the Act. The relevant facts pertaining to the partition of the H. Venkateshwaran HUF are as under:-

Sudha Iyer l

(a) The applicant, alongwith her husband constituted an HUF of her husband H. Venkateshwaran HUF. Mr. H. Venkateshwaran HUF, the applicant's husband passed away on 08.05.1993.

(b) The applicant, as Manager of the HUF, consisting of her children as coparceners regularly filed the returns of the HUF.

(c) The HUF was subject to partition as on 31.03.2005 and the total value of the HUF amounting to ` 59,99,995.98 was allotted to the members in the following manner:

             Sudha                   ` 19,99,995.98
             Hari Venkat             ` 20,00,000.00
             Swetha                  ` 20,00,000.00
      (d)    The returns for the H. Venkateshwaran HUF were filed on

27.03.2006 wherein the partition of the HUF was mentioned and the details required to be furnished under section 171 were provided.

The Assessing Officer treated the receipt by the applicant, as a member of H. Venkateshwaran HUF on partition of the HUF amounting to ` 19,99,996/- as gift and taxed the same.

3. Before the ld. CIT(A), the assessee furnished the order u/s 171 of the Act. The assessee also pointed that partition has taken place on 01.04.2005 though the order u/s 171 was passed on 14.10.2008. The ld. CIT(A) did not consider the above submission but confirmed the order of the A.O. In the aforesaid circumstances, the assessee has filed this application for grant of stay.

Sudha Iyer l

4. We have heard the rival submissions. We are satisfied with the existence of a prima facie case inasmuch as the ld. CIT(A) has not considered the order u/s 171 of the Act. We are also satisfied with the financial hardship to the assessee and the balance of convenience is also in favour of the assessee. Neverthless, considering the narrow scope of the issue to be decided by the tribunal in the appeal, we are of the view that the appeal should be heard out of turn. Accordingly, the appeal is fixed for hearing on 8.9.2011. The A.R. is directed to file the paper book so as to enable the completion of the hearing on 8.9.2011. As the date of hearing is pronounced in the Open Court, no separate notice is to be sent to the assessee.

5. In the result, assessee's stay petition is allowed in terms indicated above.

Order pronounced in the open court on 2.9.2011.

             Sd/-                                     Sd/-
         (R.K. PANDA)                          (N.V. VASUDEVAN)
     ACCOUNTANT MEMBER                        JUDICIAL MEMBER

Mumbai, Dated 2nd September, 2011.

RK Copy to:

1. The Appellant

2. The Respondent

3. CIT(A) Concerned, Mumbai

4. CIT, Concerned Mumbai

5. Departmental Representative, Bench 'E', Mumbai //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI 4 SA No.196/MUM/2011 Sudha Iyer l 1 Draft dictated on 2.9.2011 Sr PS 2 Draft placed before Author on 2.9.2011 Sr PS 3 Draft proposed & Place before the JM/AM 2nd member 4 Draft discussed/approved by 2nd JM/AM Member 5 Approved draft comes to the Sr PS Sr.PS 6 Kept for pronouncement on Sr PS 7 File sent to the Bench Clerk Sr PS 8 Date on which file goes to the Head Clerk 9 Date on which file goes to the AR 10 Date of despatch Sr PS