Gujarat High Court
Snesh Resort Pvt. Ltd vs Dy.C.I.T on 21 December, 2004
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL No 113 of 2004
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SNESH RESORT PVT. LTD.
Versus
DY.C.I.T.
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Appearance:
1. TAX APPEAL No. 113 of 2004
MR.S.N.SOPARKAR, Sr. Advocate with MRS SWATI SOPARKAR
for the Appellant - Assessee
.......... for Respondent
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CORAM : HON'BLE MR.JUSTICE D.A.MEHTA
and
HON'BLE MS.JUSTICE H.N.DEVANI
Date of Order: 21/12/2004
ORAL ORDER
(Per : HON'BLE MR.JUSTICE D.A.MEHTA)
1.The appellant - assessee has proposed the following five questions :
"(1) Whether, in the facts and under the circumstances of the case, the ITAT was right in applying the provisions of Section 68 of the Act to the share application money received by the appellant?
(2) Whether, in the facts and under the circumstances of the case, the ITAT was right in holding that Rs.1,00,000/-
received by the appellant as share application money was unexplained cash credit u/s 68 of the Act?
(3) Whether, in the facts and under the circumstances of the case, the ITAT was right in holding that Rs.1,00,000/- received by the appellant as share application money was unexplained cash credit u/s 68 of the Act?
(4) Whether, in the facts and under the circumstances of the case, the ITAT was right in holding that the membership fees of Rs.1,65,000/- received by the appellant was revenue receipt taxable in the hands of the appellant as income for the year under consideration?
(5) Whether, in the facts and under the circumstances of the case, the ITAT was right in holding that even though the appellant has not commenced its commercial activities, the receipt on account of membership fees is income earned by the appellant?"
2.Heard Mr.S.N.Soparkar, the learned senior advocate appearing on behalf of the appellant - assessee. The proposed questions Nos. 1, 2 and 3 relate to the same issue. The Tribunal and the authorities below have concurrently found from the facts and evidence on record that, identity of the person, namely, Shri Uday K. Patel, in whose name a sum of Rs.1,00,000/- by way of share application money has been introduced in the books of account of the appellant - company, is not established. It has further been found that neither the creditworthiness has been established, nor any letter of confirmation from the said party has been produced. In the circumstances, there is no infirmity in the order of the Tribunal which would give rise to a question of law, much less a substantial question of law, which requires consideration at the hands of this Court.
3.In so far as the proposed questions Nos. 4 and 5 are concerned, the following substantial question of law arises for determination from the order of the Tribunal dated 15th December 2003. Hence, ADMIT.
"Whether, in the facts and under the circumstances of the case, the ITAT was right in holding that even though the appellant has not commenced its commercial activities, the receipt on account of membership fees is income earned by the appellant?"
[D.A.MEHTA, J.] [H.N.DEVANI, J.] parmar*