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TMI Blog2016 (5) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... medabad dated 2.9.2011 vide appeal No.CIT(A)-IV/157/B/CC- 1/10-11 for Asst. Year 2008-09. Assessment was framed on 23.12.2010 u/s153A r.w.s. 143(3) of the IT Act, 1961 (in short the Act) by DCIT, CC-1, Baroda. Revenue has raised following grounds of appeal:- 1. The ld. CIT(A) has erred in law and on facts and circumstances of the case by deleting the addition of ₹ 46,80,540/- on account of gift received in kind by the assessee. 2. On the facts and in the circumstances of the case, the ld. CIT(A) ought to have upheld the order of the Assessing Officer on the above point. 2. Briefly stated facts as culled out from the records are that assessee is an individual who filed her return of income for Asst. Year 2008-09 on 13/07/2009 showing total income at ₹ 13,95,310/- in pursuance to notice u/s 153A dated 3.6.2009. During the course of assessment proceedings ld. Assessing Officer observed that assessee has shown to have accepted gift in kind in the form of equity shares of Sun Pharmaceuticals Industries Ltd. of 2400 shares and 1650 shares vide declarations of gift deed dated 7.2.2008 and 17.3.2008. On examining the details of gift with the seized paper material (coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of transfer of land arose during Asst. Year 2009-10 and the impugned gift relating to Asst. Year 2008-09 and addition, if any, relating to under valuing of the transactions of sale of land will fall in Asst. Year 2009-10. 4. Aggrieved, revenue is now in appeal before the Tribunal. Ld. DR supported the order of Assessing Officer. 5. On the other hand, ld. AR submitted that the issue is squarely covered by the decision of co-ordinate bench in the case of Shri Krupeshbhai N. Patel vs. DCIT, CC-1, Baroda in ITA No.590/Ahd/2011 for Asst. Year 2006-07 and others and further submitted that appeal of the Revenue challenging the order of the Tribunal was dismissed by Hon. Jurisdictional High Court in Tax Appeal No.938 of 2012 in the case of CIT vs. Krupeshbhai N. Patel vide order dated 29th April, 2013, (copy of judgment placed on record) on the ground that no question of law arises in the present tax appeal by the Revenue. 6. We have heard the rival contentions and perused the material on record and gone through the judgment of Hon. Jurisdictional High Court. Solitary grievance of the revenue is against the order of ld. CIT(A) in deleting the addition of ₹ 46,80,540/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor Shri Jayant Sanghvi, who is the husband of Smt. Vishakha Sanghvi to whom Gotri (and has sold for documented consideration of ₹ 10.62 crores. The Gifts in form of shares of value of ₹ 4.70 crores are received in Feb/March, 2008 by the appellant and the family members whereas Gotri land has been sold by appellant and co-owners in April, 2008. The word 'gift1 is not defined in Income Tax Act. The same has been defined as per section 122 of the Transfer of property Act, 1882 which is quoted as under: A gift is the transfer Of certain existing movable or immovable property, Made (i) voluntarily, and . (ii) without consideration -By one person (called the donor) to another (called the done), and -accepted by (or on behalf of) the done Such acceptance may be made during the life time of the donor, and while he is still capable of giving. If the done dies before acceptance, the gift is void of In view of the above the requisites of a valid gift are : (1) There should be a donor and a donee. (2) The subject of the gift must be certain and existing and capable of transfer. (3) The gift should be made voluntarily an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purported gift is in fact, undisclosed sale consideration in respect of sale of Gotri land and nothing else. The appellant has received the undisclosed sale consideration in the form of gifts in kind. 9.10 The fact that the gift in kind is not taxable during the relevant period as per section 56(2) of the Act is of no relevance once it is held that the said gift is part of undisclosed sale consideration in respect of transfer of Gotri land as the sale consideration can always be in terms of money as well as kinds. 9.11 I agree with the additional submission made by the appellant that the undisclosed sale consideration in respect of transfer of Gotri land should be taxed in the year of transfer i.e. AY 2009-10 as per section 45(1) of the Act. Once it is held that total sale consideration in respect of Gotri land includes the amount of gift received in AY 2008-09 as part of the total sale consideration received from Shri Jayant Sanghvi on behalf of Smt. Vishakha Sanghvi to whom Gotri land has been sold, the amount of such undisclosed sale consideration arising from sale of Gotri land has to be taxed in the year in which the sale took place i.e. AY 2009-10. 9.12 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... havi is not related to the assessee. The AO has noted the market value of the shares was at ₹ 65,83,830/-. The assessee has produced the gift-deeds and other evidences but according to AO those were not the conclusive evidences. Finally, the value of the gifted shares of ₹ 65,83,830/- was taxed. 22. The matter was carried before the first appellate authority, who has held that the said addition being made on account of non-genuineness of the gifts was nothing but part of the total consideration in respect of the Gotri land, hence to be taxed in the year of transaction and the impugned amount was deleted. 23. Having heard the submissions of both the sides, we are of the considered view that the AO has connected the impugned gift with the sale of Gotri land and that issue is yet to be decided in AY 2009-10, therefore the ld.CIT(A) has rightly held that the gift being transferred in kind hence not to be taxed for the year under consideration. We hereby affirm the factual as well as the legal finding of the CIT(A), hence this ground of the Revenue is hereby dismissed and appeal is dismissed. 8. We further observe that Tax Appeal No.938 of 2012 in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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