Gujarat High Court
Commissioner vs Dhirajlal on 28 June, 2010
Gujarat High Court Case Information System
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TAXAP/579/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No.579 of 2009
===================================================
COMMISSIONER
OF INCOME TAX-II - Appellant(s)
Versus
DHIRAJLAL
DURLABHBHAI PATEL - HUF - Opponent(s)
===================================================
Appearance
:
MR BB NAIK for Appellant(s) :
1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 28/06/2010
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE D.A.MEHTA) The appellant-revenue has proposed following two questions in the appeal preferred under Section 260-A of the Income-tax Act, 1961 (the Act) challenging order dated 10.09.2008 made by Income-tax Appellate Tribunal (the Tribunal):
Whether, on the facts and circumstances of the case, the Income Tax Appellate Tribunal is right in law in deleting addition of Rs.28,92,750/- made by the Assessing Officer and confirmed by the Commissioner of Income-Tax (Appeals)-IV, Surat?
Whether, on the facts and circumstances of the case, the order of the Income Tax Appellate Tribunal is without reasons, contrary to the evidence and material on the record of the case and perverse or not?
The Assessment Year in question is 2001-2002, the relevant accounting period being Financial Year 2000-01. The assessee, a Hindu Undivided Family, has been assessed under Section 143(3) read with Section 147 of the Act on a sum of Rs.28,92,750/-, which is the amount in dispute. The assessee failed in his appeal before Commissioner (Appeals) but has succeeded in the appeal filed before the Tribunal.
On behalf of the appellant-revenue it was submitted that the assessee had entered into an agreement to sell (satakhat) for the total amount of Rs.28,92,750/- in relation to land situated at Survey No.17 (new Revenue Survey No.16), Village Magdalla, admeasuring 24,100 sq. mtrs. This agreement was recovered from business premise of one Shri Arvindbhai D. Patel and Shri Jashmatbhai N. Patel, stated to be the brokers in land transactions, from Flat No.304, Megh Dhanush Complex, Adajan Road, Surat. That the statement of the assessee recorded by the Assessing Officer indicated that the assessee had received a sum of Rs.14,00,000/-. Therefore, the order made by Assessing Officer and Commissioner (Appeals) bringing to tax the total amount mentioned in the document was justified. It was further submitted that possession of the land had been handed over and the amount was required to be brought to tax as capital gains. Tribunal had failed to appreciate the facts in correct perspective and committed error in deleting the addition.
The Tribunal has recorded that the agreement was never acted upon, was never signed by any party to the agreement, and even up to the date of hearing before the Tribunal the property stood in revenue record in the name of the assessee and had not been sold. Tribunal has thus held that an unsigned document cannot be made basis of an actual transaction. Accordingly, no income arose as a result of such unsigned document.
As can be seen from the impugned order of the Tribunal and the order made by the Assessing Officer, it is clear that on the same set of evidence the Assessing Officer has come to the conclusion that a transaction had taken place whereas the Tribunal has held that an unsigned document cannot form the basis of the transaction in law. Admittedly, except for the unsigned document, there is no other corroborating evidence to establish any transaction having been taken place, more particularly in relation to the amount stated in the said document. There is no evidence, nor any finding by any authority, that the possession of land was handed over by the assessee as contended by the learned counsel. In this factual matrix in absence of any cogent evidence to treat the amount stated in the unsigned document as the value of the transaction resulting in taxable income the Tribunal was justified in deleting the addition and it is not possible to state that it has committed any error in law so as to amount to perversity in law.
In the circumstances, in absence of any question of law, much less any substantial question of law, as proposed or otherwise, the appeal is dismissed.
Sd/-
[D. A. MEHTA, J] Sd/-
[ H.N.DEVANI, J] *** Bhavesh* Top