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TAXAP/1160/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1160 of 2010
=========================================================
COMMISSIONER
OF INCOME TAX-IV - Appellant(s)
Versus
BINITA
M PATEL - Opponent(s)
=========================================================
Appearance
:
MR
MANISH BHATT, SR COUNSEL
for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 24/08/2011
ORAL
ORDER
(Per
: HONOURABLE MS JUSTICE SONIA GOKANI)
This
tax appeal is filed under Section 260A of the Income-tax Act, 1961
challenging order of the Income Tax Appellate Tribunal dated
30.11.2009 raising following question for our consideration :
“Whether
the Appellate Tribunal is right in law and on facts in confirming
the order passed by the CIT(A) in deleting the addition of
Rs.12,00,000/- made by the Assessing Officer on account of
unexplained capital reserve?”
Brief
facts are as follows :
2.1 Assessee
for for block assessment period 1.4.1989 to 15.10.1999 filed its
return of income declaring total income as nil. The original
assessment under Section 158C of the Act was finalised by
determining total income at Rs.14,09,180/-. There were certain
additions made, one of which was addition on account of unexlaned
capital reserve to the tune of Rs.12,00,000/-. Said additions were
challenged by the assessee respondent before CIT(Appeals) which
deleted disallowance made by the Assessing Officer including the one
made on account of unexplained capital reserve. Revenue challenged
the same before the appellate tribunal. Tribunal concurred with
findings of CIT(Appeals) and impugned order is in challenge before
this Court.
Court
has heard learned senior Counsel Shri Manish Bhatt for the Revenue
and with his assistance, orders of adjudicating authorities are
examined. For the reasons to be followed here-in-after, issue
proposed for determination of this Court deserves no consideration.
Question
formulated is with regard to addition of Rs.12,00,000/- made by the
Assessing Officer on account of unexplained capital reserve. Revenue
pointed out to the tribunal that assessee had shown the credit entry
of reserve amounting to Rs.12,00,000/- apart from capital and
therefore, onus was on the assessee to prove that no investment of
Rs.12,00,000/- other than recorded in the books of accounts was made
by her in the partnership firm namely, M/s. Troikaa Paranterals.
Since onus was not discharged, addition was correctly made by the
Assessing Officer. Tribunal was of the opinion that Commissioner,
Income-tax by giving cogent findings had deleted said additions
wherein it observed that page no.102 of Annexure A-34 was a rough
trial balance where this amount appeared as a reserve which was on
account of bifurcation of capital balance as being non-interest
bearing. It was also noted by CIT(Appeals) that in fact no interest
has been paid on such amount by the bank and during the course of
appellate hearing also, fair trial balance was produced before the
authority bearing entry of Rs.12 lakhs. Authority was of the
opinion that source of amount deposited in the partnership firm was
truly and completely explained and in absence of any base for making
such additions, addition was not upheld. Tribunal also while
concurring with these findings gave its independent findings by
holding further that there was nothing brought before it by the
Revenue to prove that assessee had invested any amount in addition
to balance shown in in the capital account in the firm where
assessee was a partner. Tribunal was also of the opinion that
rejection of the explanation of assessee on part of the Assessing
Officer was not justifiable and that was done only on basis of doubt
and suspicion.
Issue
is essentially dealt by both the adjudicating authorities on basis
of factual matrix presented before them. Since reasons given by both
the authorities are sound and cogent and there is no perversity
pointed out, this Court is of the opinion that no interference is
called for. There is no question of law much-less substantial
question of law to be determined by this Court. Tax Appeal is
dismissed.
(Akil
Kureshi,J.)
(Ms.
Sonia Gokani,J.)
(raghu)
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