Seema Sureka Vs DCIT (ITAT Kolkata)
ITAT Kolkata held that addition under section 56(2) towards receipt of gift from HUF to be re-considered for exemption under section 10(2) of the Income Tax Act. Accordingly, matter restored back to AO with specific direction.
Facts-In this case, a search and seizure operation was conducted on the Adhunik Group on 17th and 18th December, 2014. In this matter there were three issues before the Ld. CIT(A) : (i) Misc. receipts of Rs. 96,000/- in cash shown as gifts received, and offered to tax; (ii) Receipt of a gift of Rs. 5,84,000/- from an HUF, claimed as exempt u/s 56(2) of the Act; and (iii) Receipts of Rs. 2,99,133/- shown as profit from commodity trading, albeit on off-market basis. At the first appellate stage, the assessee was unsuccessful. Being aggrieved, the present appeal is filed.
Conclusion-It is seen that all along the assessee has been asking for exemption u/s 56(2) of the Act only, which, as has been discussed earlier, is not allowable, but a plain reading of section 10(2) of the Act shows that it could come to the rescue of the assessee in case the facts surrounding the issue are clearly visible, as applicable to section 10(2) of the Act. We find that at no stage has any fact finding been done in regard to examine the applicability of section 10(2) of the Act. Accordingly, we set aside the addition u/s 56(2) of the Act for re-consideration u/s 10(2) of the Act and direct the Ld. AO to give an opportunity to the assessee to present the necessary facts and thereafter to consider the impugned amount for exemption u/s 10(2) of the Act, if legally possible. We direct accordingly.
