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2015 (10) TMI 1625 - ITAT AHMEDABAD

2015 (10) TMI 1625 - ITAT AHMEDABAD - TMI - Benami transaction - Addition made on account of income from M/s.Chandan Carrier - Held that:- In the instant case, the AO made addition of ₹ 1,07,890/- being income from M/s.Chandan Carriers, holding the assessee as benami of his brother-in-law Shri Nilesh Shah.

Considering the contention of the assessee that he has shown income from truck under section 44AE of ₹ 2,01,000/- which includes income of ₹ 1,07,890/- from M/s.C .....

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ntention has been rightly rejected by the lower authorities.

However, we are of the considered view that it shall be in the interest of justice to restore the matter back to the file of the AO to verify whether income from trucks shown at ₹ 2,01,000/- under section 44AE by the assessee in the return of income include income from M/s.Chandan Carriers. If so, no further addition of ₹ 1,07,890/- to the income of the assessee is required. We, therefore, set aside the orders o .....

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1 of appeal reads as under: "I. CHANGING THE HEAD OF INCOME FROM CPAITAL GAIN TO BUSINESS" 1. The ld.AO has erred in law and on facts in giving direction to the AO to rework the income on the basis of Hon'ble ITAT' decision in the case of Sugarchand C. Shah 37 DTR 345 (Ahd.) wherein it was held that if shares are held for more than one month, it should be treated as short term capital gains and when share are held for less than one month, gain on them should be treated as busin .....

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t of prosecution. 4. Second ground of appeal of the assessee is that the CIT(A) erred in confirming the addition made on account of income from M/s.Chandan Carrier of ₹ 1,07,890/-. 5. Brief facts of the case are that the AO observed that the assessee is carrying on transport business in the name of M/s.Chandan Carrier. On enquiry, he found that Shri Nilesh Shah, owner of the Shri Nilesh Shah, did not own any truck for its transportation business. The business premise of Shri Nilesh Shah wa .....

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name of other party. The AO observed that during the year, Shri Nilesh J. Shah has shown income amounting to ₹ 1,07,890/-, and the same was added to the total income of the assessee. 5. On appeal before the CIT(A), the assessee submitted that the assessee was carrying on business of transaction till January, 2005 and Shri Nilesh Shah was handling the tankers of the assessee, and was paid handling charges. From January, 2015, the assessee decided to close the transportation business and st .....

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who is having own proprietary firm, M/s.Shah Carriers for his transportation business. As all tankers lying in the plot of H.M. Shah, and due to his poor financial conditions, Shri Nilsh Shah has not given any rent to H.M. Shah. Shri Nilesh Shah is brother-in-law of the assessee, and gave authorization in the bank only to safeguard his interest in his business, if any cheque is required to be signed and given to any person in his absence. 6. Without prejudice to the above, the assessee submitted .....

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he assessee held that the assessee's contention that all the papers were in his name, and he was signing the cheque only to help his brother-in-law is a spacious agreement. He has not produced any evidence to establish that his brother in law was not legally competent to carry on business in his name. There is no reason to believe that apparent is not real. That the assessment has been made in Shri Nilsh Shah's name is apparently on account of misleading information. Hence, he rejected t .....

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the Act dated 31.10.2008. It was the argument that the same income cannot be assessed once in the hands of Shri Nilesh Shah and again in the hands of the assessee. He, therefore, prayed that the addition made should be deleted. 9. On the other hand, DR fully justified the orders of the lower authorities. 10. We have heard rival submissions and perused the orders of the lower authorities and material available on record. In the instant case, the AO made addition of ₹ 1,07,890/- being income .....

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