9911796707
TMI Blog2012 (4) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in upholding the dis- allowance of set off of short-term capital loss of Rs. 2,50,000 on cancellation of the agreement to sell (banakhat) ? C. Whether, on the facts and in the circumstances of the case, the conclusion reached by the Income-tax Appellate Tribunal to uphold the addition of Rs. 1,42,845 in respect of the gift received from Shri Biral Patel is such as could have been arrived at from the material on record or is reasonable ? D. Whether, on the facts and in the circumstances of the case, the conclusion reached by the Income-tax Appellate Tribunal to uphold the disallowance of set off of short-term capital loss of Rs. 2,50,000 on cancellation of the agreement of sell (banakhat) is such as could have been arrived at from the material on record or is reasonable ? E. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal was justified in holding the gifts received from Shri Biral Patel by taking into consideration the fac- tors which were never confronted to the appellant by the lower authorities ?" Issues arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, gold ornaments and documents were seized, which were handed over to the Income-tax Department. 5. Notice under section 153A was issued on March 12, 2004, and on due compliance to the same, the appellant filed a return of income declaring his income at Rs. 1,59,480. On different occasions, notices under section 143(2) along with questionnaires were issued since various issues had arisen. On considering the replies of the appellant to these issues, the total income of the assessee was assessed at Rs. 5,32,355 where disallowances were made of loss on short-term capital of Rs. 2,50,000 and additions were made on unexplained cash credit. 6. This was when challenged before the Commissioner of Income-tax (Appeals), he noted the fact that the short-term capital loss of Rs. 2,50,000 and Rs. 6,50,000 had been claimed on account of cancellation of banakhat in respect of the land transaction for the assessment year 1999-2000 and 2000-01 respectively. The Commissioner of Income-tax (Appeals) exten- sively heard both the sides on the issue of long-term capital gain and the loss contrived to be set off against the long-term capital gain. He upheld the disallowance of capital lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Biral Patel prior to 1999 was not pro- vided. Huge gifts were sent to various persons had created doubt in the minds of the Assessing Officer. 12. The Commissioner of Income-tax (Appeals) was of the opinion that there was no occasion nor any reason for making such huge gifts to the appellant, nor was there any direct confirmation by the donor and con- firmation came from his father only. The letter produced by the donor did not mention quantum of gift, name of the recipients or reason for such gifts. Again, in the return of income, the appellant had shown non-specific activities and moreover, other strong reasons for this disbelief was the version of Shri Tarun Karia who was an employee of the appellant who had confirmed that transaction involving money laundering were carried out with the help of the said donor. 13. It is fervently submitted by the learned counsel that money had been transferred through banking channel and it has also come from the NRE account of the donor. Donation given to the wife of the present appellant has been accepted by the Department and when the documents furnished in support of such gifts have been accepted in case of other donee, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the donor, all the three adjudicating authorities were not satisfied both on the aspect of the creditworthiness of the donor. on huge amount of gift having been given without rhyme or reason to the present appellant. The donor was not a relative nor had offered himself for the examination. 16. On over all close reading of all the orders of the adjudicating autho- rities, it does not emerge from the record that any error is committed in appreciating the facts which were at large before them. Illegal activities of M/s. Kalgi, suspicious circumstances emerging from the material, non- availability of the donor personally, confirmation of his details not personally but by his father and huge amount of gift being sent to different persons including the present appellant without any occasion and also without any relationship, connection of family of donor with the activities of the present appellant, non-availability of details of activities of the donor at the USA are various circumstances emerging from the record which was threadbare scrutinized to examine the creditworthiness of the entire transaction, and thereafter, when concurrently all the three authorities concluded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer as per section 2(47) includes extinguishment of rights therein and for the extin- guishment of rights, there needs to be an existence of capital asset. By a detailed examination of the issue and relying on various authorities, it held that the appellant was at no point of time in possession of any assets. There was no question of invoking any of the provisions of the Income-tax Act to allow capital loss. It was also the observation of the Tribunal that a colourable device was designed so as to get set off against the capital gains earned by the assessee on sale of jewellery declared under the VDIS. This entire exercise has been done by the Tribunal on closely examining the books of account of the appellant-assessee. Not only there are convincing reasons given by the Tribunal. It has further substantiated its logic by the provision of law and some of the decisions of this court. Analogy used by the Tribunal and other adjudicating authorities cannot be said to be conjectural in nature inasmuch as there was complete absence of original documents leading to establish genuineness of the transaction claimed to have been entered into by the present appellant and the land owners. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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