9911796707
TMI Blog2013 (5) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... sment was framed u/s 143(3) read with section 167B of the Act and vide order dated 27.12.2007, the total income was determined at Rs. 1496608/-. 4. Aggrieved by the order of Assessing Officer, assessee carried the matter before CIT(A). CIT(A) vide order dated 13.6.2008 allowed the appeal of the assessee. Aggrieved by the order of CIT(A), the revenue is now in appeal before us and has raised the following grounds:- 1. On the facts and circumstances of the case and in law the ld. CIT(A) has erred in granting the assessee the status HUF. 2. On the facts and circumstances of the case and in law the ld. CIT(A) has erred in deleting the addition made of Rs. 14,59,858/- being the capital asset treated as income of AOP 3. It is therefore, praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not given any proof to show the intention of the donor and the assessee could not give adducing evidence to prove its case as to how the property received was utilized and income earned from it. He therefore concluded that no HUF existed and what existed was an A.O.P. consisting of Shri Paresh M. Shah, Smt. Nikisha P. Shah and minor Parth P. Shah. Further since the said shares of AOP were indeterminate, he accordingly treated the assessee to be an AOP and held that it should be taxed at the maximum marginal rate u/s. 167B of the I.T. Act. During the course of assessment proceedings A.O. also observed that the assessee had shown long term capital loss of Rs.46,317/-. Assessee submitted that Shri Mansukhlal Motichand Shah, HUF was in posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how the capital has been generated by assessee. He therefore concluded that provisions of Section 68 were applicable. He was further of the view that there exists no HUF and, therefore, the entire capital introduced by AOP during the year under consideration and which was not offered to tax in any of the previous assessment years was liable to be taxed. He accordingly taxed the entire capital of Rs. 1459858/- and added to income. Aggrieved by the order of Assessing Officer. assessee carried the matter before CIT(A). CIT(A) after considering the submissions of the assessee, remand report of Assessing Officer,deleted the addition by holding as under:- 5.6. 1 have perused the facts of the case. 1 find merits in the arguments proposed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us. 7. Before us the Ld. D.R. submitted that no return of income of gift was filed by assessee during the assessment proceedings. Further the memorandum of gift dated 197.2004 for gift of Rs. five lacs has been executed after a gap of more than three months after the receipt of gift. He further relied on the findings of A.O. 8. The ld. A.R. on the other hand submitted that Shri Paresh M. Shah got married on 17.5.1990 and, therefore, the HUF was created on that date as HUF comes in to existence automatically on marriage. HUF had received gift from Shri Mansukhlal Shah on 8.5.1992 and the gift tax return was also filed. He placed on record the copy of order for S.Y. 2035 in support of evidence that partial partition of bigger HUF took ..... X X X X Extracts X X X X X X X X Extracts X X X X
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