The Commissioner Of Income Tax-15,Mumbai v. Shri Pinakin L. Shah

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.3380 OF 2010 The Commissioner of Income Tax-15,Mumbai. ..Appellant. Vs. Shri Pinakin L. Shah. ..Respondent. .... Mr. Vimal Gupta, for the Appellant.Mr. S.C. Tiwari a/w. Ms. Natasha Mangat, for the Respondent. .... CORAM : J. P. DEVADHAR & A.R. JOSHI, JJ. DATED : 18th JANUARY, 2012. P.C. 1.Following two questions of law are raised by the Revenue in this Appeal. “(a) Whether on the facts and in the circumstances of the case, the Tribunal was right in law as well as on facts of the case in affirming the deletion of addition made by A.O. of Rs.2,18,24,010/- u/s. 68 of the Income Tax Act, 1961 on account of sale of shares of Talent Infoway Ltd. (b)Whether on the facts and in the circumstances of the case, the ITAT erred, in law as well as on facts, in deleting the addition made by AO of Rs.60,00,000/- on account of gifts received from various persons without considering that the factum of bogus gifts was accepted by Shri Pinakin Shah during the course of survey proceedings and donors of gifts were strangers without any natural love and affair and gifts were given without any occasion leading to improbabilities of gifts on the basis of circumstantial evidences.” 2.The assessment year involved herein is A.Y. 2005-06. 3.As regards question (a) is concerned, it is an admitted fact that before the ITAT the Counsel for the Revenue stated that the said issue is covered against the Revenue by the decision of this Court in the case of CIT Vs. Shri Mukesh R. Marolia in Income Tax Appeal No.456/2007 decided on 7th September, 2011. Since the decision of the ITAT is based on the concession made by the Counsel for the Revenue before the ITAT, question (a) cannot be entertained. The Revenue may adopt any other remedy available in law. 4.As regards question (b) is concerned, the Tribunal in paragraph-6.4 of its order has recorded the reasons on the basis of which the ITAT has arrived at a conclusion that the gifts in question are genuine. Since the decision of the ITAT is based on finding of fact, in our opinion, question (b) cannot be entertained. 5.In the result, the Appeal is dismissed. (A. R. JOSHI, J.) (J. P. DEVADHAR,J.)