Gujarat High Court
Commissioner Of Income Tax I vs Harshad Babulal ... on 22 April, 2015
Author: M.R. Shah
Bench: M.R. Shah, S.H.Vora
O/TAXAP/37/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 37 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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COMMISSIONER OF INCOME TAX I....Appellant(s)
Versus
HARSHAD BABULAL MAKWANA....Opponent(s)
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Appearance:
MR KM PARIKH, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 22/04/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 4 O/TAXAP/37/2015 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned order passed by the learned Income Tax Appellate Tribunal "D" Bench, Ahmedabad (hereinafter referred to as the "Tribunal") dated 30/05/2014 for the Assessment Year 1996-97 in ITA No.49/Ahd/2009, the revenue has preferred the present Tax Appeal with the following substantial questions of law;
(i) Whether on the facts and in law, the ITAT was justified in not upholding the finding of the CIT(A) that the source of the cash deposit of Rs.25 in the assessee's bank account was not explained and, therefore, the said amount was liable to be taxed in his hands as his deemed income?
(ii) Whether on the facts and circumstances of the case and in law, the ITAT, being the final fact finding authority, was justified in merely relying upon its observation in the case of M/s. Natural Biocon (India) Ltd, wherein it had not examined the facts material to the impugned transaction and, therefore, ought to have examined the facts in the present case, before rendering its decision?
[2.0] We have heard Shri K.M. Parikh, learned advocate appearing on behalf of the revenue. We have also gone through and considered the order passed by the learned Tribunal in the case of M/s. Natural Biocon (India) Ltd. in ITA No.2638/Ahd/2003 in which the very amount of Rs.25 lacs came to be considered. The Assessing Officer made the addition of Rs.25 lacs being unexplained investment in the Page 2 of 4 O/TAXAP/37/2015 JUDGMENT share of the company namely M/s. Natural Biocon (India) Ltd.. The learned CIT(A) sustained the said addition. However, on appeal, the learned Tribunal has deleted the said addition by observing that in case of the M/s. Natural Biocon (India) Ltd. for the Assessment Year 1996-97 with respect to the very amount of Rs. 25 lacs the explanation of the assessee-Shri Harshad Makwana came to be considered and the learned Tribunal observed that the amount of Rs.25 lacs in question was in fact the advance given by M/s. Natural Biocon (India) Ltd. to Shri Harshad Makwana through banking channel and, therefore, it cannot be said that the aforesaid amount of Rs.25 lacs in the hands of the assessee-Shri Makwana can be said to be unexplained investment. Consequently, the learned Tribunal has deleted the addition of Rs.25 lacs made by the Assessing Officer confirmed by the learned CIT(A) on the ground that the aforesaid amount of Rs.25 lacs is not unexplained investment. On considering the order passed by the learned Tribunal in the case of M/s. Natural Biocon (India) Ltd. for the Assessment Year 1996-97 the learned Tribunal had an occasion to consider the share application money of Rs.25 lacs received by M/s. Natural Biocon (India) Ltd. from the present assessee-Shri Makwana. It is true that in the case of M/s. Natural Biocon (India) Ltd. the Assessing Officer made a protective addition of Rs.25 lacs as Shri Makwana claimed that the investment of Rs.25 lacs was made by taking advance from the M/s. Natural Biocon (India) Ltd.. However, while deleting such addition, the learned Tribunal did observe that the source of the share application money of Rs.25 lacs made by Shri Makwana has been explained as advance received by him from M/s. Natural Biocon (India) Ltd.. The learned Tribunal has also observed in the case of M/s. Natural Biocon (India) Ltd. that the Assessing Page 3 of 4 O/TAXAP/37/2015 JUDGMENT Officer himself admitted that such advance was given to Shri Makwana through banking channel. The learned Tribunal also observed that there is no dispute about the capacity of the M/s. Natural Biocon (India) Ltd. in giving the advance of Rs.25 lacs to Shri Makwana. The source of Rs.25 lacs, which is explained has been accepted by the learned Tribunal while dealing with the same addition in the case of M/s. Natural Biocon (India) Ltd.. There is a categorical finding given by the learned Tribunal that the aforesaid amount of Rs.25 lacs was given by way of advance by M/s. Natural Biocon (India) Ltd. to Shri Makwana. If that be so, it cannot be said that the learned Tribunal has committed any error in deleting the addition of Rs.25 lacs made by the Assessing Officer as unexplained investment confirmed by the learned CIT(A). We confirm the view taken by the learned Tribunal. No question of law much less substantial question of law arises in the present Tax Appeal. Under the circumstances, the present Tax Appeal deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) (S.H. VORA, J.) Siji Page 4 of 4