TaxTMI 
TaxTMI 
2011 (3) TMI 474
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....Mr.Dinshaw Jamshedji Mistry was the consideration which made the said Bhavsar pay the said amount of Rs.4,78,80,000 to the Appellant and in any event was to be regarded as received by way of inheritance. 3. The CIT(Appeals) 27/16(1)/2 erred in holding that the Appellant" willingly offered to surrender the amount for taxation and also submitted as cheque of Rs.1,60,46,844/- dated 28/11/07 drawn HSBC Bank, Mumbai." 4. The CIT(Appeals) 27/16(1)/2 failed to appreciate that the amount of Rs.1,60,46,840/- was collected by Mr. Karun Kant Ojha, Deputy Director of Income Tax (Investigation), Unit-II(2) Room 437,Scindia House, N.M. Road, Ballard Pier, Mumbai - 400 038 and was recovered from the Appellant under duress, without any formal notice to the Appellant, without any jurisdiction over the Appellant, outside of and in breach of the Income Tax Act and the Law. 5. The CIT(Appeals) 27/16(1)/2 erred in directing the assessing officer to consider the addition of Rs.1.047 crores for the assessment year 2004-05. 6. The CIT(Appeals) 27/16(1)/2 erred in holding that the appellant is not the legal heir of the testatrix Mrs. Mani Cawas Bamji." 2. T....
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....ry died. During his life time he had executed his last will and testament dated 29/10/2001 appointing Mr. Rajesh K. Bhavsar as the sole executor and legatee. Mr.Rajesh K.Bhavsar got himself impeded as plaintiff in PIL Suit No. 27 of 2001 before Hon'ble Bombay High Court for granting of probate of the last will testament of Mrs. Mani Cawas Bamji in place of Dinshaw Jamsheji Mistry. 5. Mr. Rajesh K. Bhavsar and the assessee entered into a compromise whereby the assessee agreed to receive a sum of Rs.5,08,80,000/- in consideration for agreeing to the Court granting probate in respect of the last will of Mrs. Mani Cawas Bamji dated 2/5/1997. This agreement by which they agreed to comprise their disputes was dated 22/11/2002. There is no dispute that this sum of Rs.5,08,80,000/- later reduced by Rs.30,00,000/- and ultimately the assessee received a sum of Rs.4,78,80,000/- in the following manner. Date of payment Amount Mode of payment Drawn on bank 03/04/2003 17,47,000.00 Cheque HSBC 484087 10/4/2003 12,61,585.25 Cheque HSBC 484087 24/04/2003 4,19,777.60 Cheque HSBC 484087 28/04/2003 13,21,486.38 Cheque HSBC 48....
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.... was noticed that "Avasia House" was agreed to be sold to Orbit Group. It also transpired that Mr.R.K.Bhavsar had paid a sum of Rs.4,78,80,000/- to the Assessee, the details of which have already been set out in the earlier part of this order. In a statement recorded during the search of Mr.RK Bhavsar, he narrated the sequence of events as described in the earlier paragraphs. The Deputy Director of Income Tax (Investigation) Mumbai in purported exercise of his powers u/s.131 of the Act, issued summons to the Assessee and recorded his statement on 24/11/2007. The Assessee also narrated the sequence of events as set out above. The Assessee also agreed to offer the sum so received to tax and also paid tax payable on such receipts. 8. In the return of income filed on 27/09/2007 for AY 06-07, the Assessee did not offer the aforesaid receipts to tax. In the order of assessment there is a reference to the opinion of Mr.Soli Dastur, Senior Advocate, given regarding non-taxability of the receipts in question. In this opinion there is a reference to a query by the AO regarding taxability of the receipts in question u/s.56(2)(v) of the Act. The opinion is to the effect that u/s.56(2....
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.... in the will and as claimed by the appellant. Hence, the action of the AO in taxing this amount u/s. 56(2)(v) is absolutely correct and is upheld and this ground of appeal of the appellant is dismissed. Their other argument that this money had accrued in the earlier years when the agreement was reached and hence, should not be taxed in this year is also not correct. Since the money was received in this year, it has to be taxed in this year. Even if the agreement was made in the earlier year, it did not become full contract as no payment was made in the earlier year. Only when the payment is received, then the agreement comes into force." 12. The main issue to be decided in this appeal is as to whether the provisions of Sec.56(2)(v) are attracted. The said provisions read as follows: (As amended by the TL (Amend.) Act, 2006, w.ef. 1-4-2006.) 56. Income from other sources: (1) Income of every kind which is not to be excluded from the total income under this Act shall be chargeable to income-tax under the head "Income from other sources" if it is not chargeable to income-tax under any of the heads specified in section 14, items A to E. (2) In pa....
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....on". The question is was there any consideration for the receipt of money by the Assessee. 14. It was the contention of the ld. Counsel for the assessee that the sum received by the assessee was in consideration of the assessee withdrawing the caveat filed in the proceedings for grant of Probate/Letters of Administration in respect of will of late Mani Cawasa Bamji. In this regard ld. Counsel for the assessee drew our attention to the provisions of section 2(d) of the Indian Contract Act, 1872 which defines consideration as follows: "(d) When, at the desire of the promisor, the promise or any other person had done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise." 15. In this regard ld. Counsel for the assessee drew our attention to the affidavit filed by the assessee in support of the caveat filed opposing the grant of Probate in respect of last will of Mrs. Mani Cawasa Bamji in favour of Mr. Dinshaw Jamshedji Mistry. He further dew our attention to the agreement dated 22/11/2002 whereby it was agreed that the assess....
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....e construed according to the definition of the term in section 2(d) of the Contract Act. Though the assessee must be distinguished from the company of which they were only the shareholders, directors or officers, yet there was nothing in the definition of "consideration" in section 2(d) of the Contract Act to show that when" the promise has done or abstained from doing or does or abstains from doing, or promises to do or to abstain from doing something", the benefit of that act or abstinence must "directly" go to the promisor" ............ (ii) The provisions relating to "consideration" have been modified by the provisions of the Gift tax Act in two respects; first, in the Gift-tax Act an agreement to transfer property "otherwise than for adequate consideration"[see section 4(a)] gives rise to a gift to the extent of the inadequacy, while under the definition in the Contract Act that is not so. Under the Contract Act the adequacy or inadequacy of the consideration is immaterial. Under Explanation 2 of section 25 of the Contract Act, an agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; it is still ....
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....wasa Bamji being the son of a pre-deceased sister of the deceased. He together with Mr. Dinshaw Jamshedji Mistry , brother of the deceased were alone entitled to the estate of late Mrs. Mani Cawasa Bamji in the event of intestacy of late Mrs. Mani Cawasa Bamji. It was because of the fact that the assessee was entitled a half share in the asset of late Mrs. Mani Cawasa Bamji that a citation was issued to the assessee by Hon'ble Bombay High Court before granting the Probate in respect of the last will of late Mrs. Mani Cawasa Bamji to Mr. Dinshaw Jameshedji Mistry. The assessee promptly filed the caveat opposing the grant of Probate in favour of Mr. Dinshaw Jamshedji Mistry and consequently the proceedings became a testamentary suit. In such proceedings it was the duty of Mr. Dinshaw Jamshedji Mistry to establish that the will of late Mrs. Mani Cawasa Bamji was the last will and that was executed in accordance with law and that the testatatrix executed the will in a sound and disposing state of mind. The assessee also obtained an order of injunction restraining Mr. Dinshaw Jamshedji Mistry from dealing with estate of the deceased in any manner. After the death of Mr. Dinshaw Jamshedj....