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TMI Blog2019 (4) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Revenue : Mrs. Aparna Agarwal, CIT(D.R.) ORDER PER O. P. MEENA, AM 1. This appeal by the Revenue and Cross Objection by the Assessee are directed against the order of learned Commissioner of Income tax (Appeals)-IV, Ahmedabad (in short the CIT (A) ) dated 02.09.2011 pertaining to Assessment Year 2008-09, which in turn has arisen from the assessment order passed under section 153A read with section 143 (3) dated 23.12.2010under Income Tax Act, 1961 (in short the Act ) by the Surat (in short the AO ). I.T.A.No. 622/AHD/2011/A.Y. 2008-09/ By the Revenue 2. The 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 ₹ 75,39,521/- 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. 3. Briefly, stated the facts of the case are that a search and seizure action under section132 of the Act was carried out on 11.02.2009 in the case of Amod Group including the assessee. Accordingly, a noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of shares accepted by the donee from the husband of donor as the purchaser of the land. Accordingly value of shares gifts to the assessee at ₹ 7539,521/- was added to the income of assessee and income was assessed at ₹ 89,97,507/-. 4. Being aggrieved, the assessee filed an appeal before the ld. CIT (A). The ld. CIT (A) has deleted the addition by examining in detail the transactions of gift of shares and transactions relating to sale of land at Gotri and was of the view that transaction 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. 5. Being aggrieved, the Revenue has filed this appeal before the Tribunal. The Ld. CIT (DR) vehemently supported the order of the AO. 6. Per contra, the learned counsel for the assessee submitted that the identical issue in the case of one of group members , Smt. Lalitaben N Patel is arosed in assessment year 2008-09, which has been decide in favour of the assessee by the Tribunal, hence, the issue is squarely covered by the decision of Co-ordinate Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S.A) No. 625/Ahd/2011 dated 03.05.2016 has been deleted by the tribunal. Wherein the Co-ordinate Bench has given the findings as under in para 6 to 8 as under: : 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/- held to be gift of shares. We observe that ld. CIT(A) while deleting the addition has observed as under :- 6. We observe that ld. CIT(A) while deleting the addition has observed as under :- 6. The brief facts of the case are that the assessee has, in AY 2008-09 shown to have accepted gift in kind being equity shares of Sun Parmaceuticals Industries Ltd. respectively 2400 shares and 1650 shares vide declaration of gift deed dated 7.2.2008 and 17.3.2008. The donor is Shri Jayant Sanghavi not related to the assessee even distantly. The market value of these shares works out to ₹ 46,80,540/- on the day of declaration of gift. 6.1 In fact, the total amount of gifts received from Shri Jayant Sanghavi by the appellant and the family members in Feb./March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son (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 and without consideration. (4) There should be a transfer on the part of the donor. (5) There should be an acceptance by or on behalf of the donee during his life-time. (6) The acceptance must be at a time when the donor is alive and capable of giving. (7) Therefore, it necessarily follows that the donor and the donee must both be living. (8) In case of movable property, there must be either a registered instrument properly attested or delivery of possession. 9.9 The gift of shares in the case of appellant needs to be examined with reference to the most vital requisite of a valid gift i.e. it must be voluntary and without consideration. For this purpose it is important to note that: - . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 view of the above, the total gifts amounting to ₹ 4.70 crores. received by the appellant and his family members are in fact towards undisclosed sale consideration of Gotri land. The addition of ₹ 4.70 crores made in AY 2009-10 in the hands of the appellant and Shri Navin N. Patel (joint owners) of ₹ 2,35,00,0007- each on protective basis is confirmed on substantive basis. Therefore, the addition of ₹ 65,83,830/- in AY 2008-09 made on account of non-genuineness of gifts by treating it as part of total sale consideration is, hereby, deleted. 8. In view of the above findings, the addition of ₹ 46,80,5407- on account of gifts is deleted. Therefore, the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted 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 case of CIT vs. Krupeshbhai N. Patel was dismissed by Hon. Jurisdictional High Court vide its order dated 29th April, 2013. Therefore, respectfully following the judgment of Hon. Gujarat High Court and the decision of the co-ordinate bench, we are of the view that ld. CIT(A) has rightly deleted the addition of ₹ 46,80,540/- as the gift which was part of the total gift received by family members at 4.70 crores formed part of the undisclosed sale consideration of Gotri land which took place during Asst. Year 2009-10 and, therefore, no addition was called for during Asst. Year 2008-09. Accordingly no interference is called for with the order of ld. CIT(A). We uphold the same. The ground raised by the Revenue is dismissed. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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