Smt. Mona Ahuja, Agra V. I.T.O., Ward-1(3), Agra

CO 31/AGR/2011

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6545 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-11-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-11-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 24-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: ALOK FARSAIYA
• Keywords: Reasonable cause; Accommodation entries; Assessment record
• Section: 143(3); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.332/AGR/2010 ASSESSMENT YEAR: 1998-99 INCOME TAX OFFICER 1(3), VS. SMT. MONA AHUJA, AGRA. W/O. SHRI BHUPENDRA AHUJA, H. NO.3, SARKAR COMPOUND, DELHI GATE, AGRA. (PAN: AEXPA 3405 L). C.O. NO.31/AGR/2011 (IN ITA NO.332/AGR/2010) ASSESSMENT YEAR: 1998-99 SMT. MONA AHUJA, VS. INCOME TAX OFFICER 1(3), W/O. SHRI BHUPENDRA AHUJA, AGRA. H. NO.3, SARKAR COMPOUND, DELHI GATE, AGRA. (PAN: AEXPA 3405 L). (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI A.K. SHARMA, JR. D.R. ASSESSEE BY : SHRI ALOK FARSAIYA, C.A. DATE OF HEARING : 17.11.2011 DATE OF PRONOUNCEMENT : 21.11.2011 ORDER PER BENCH : ITA NO.332/AGR/2010 & C.O. NO.31/AGR/2011 A.Y. 1998-99 2 THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER OF THE LD. CIT(A)-I, AGRA DATED 21.04.2010 FOR THE ASSESSMENT YEAR 1998-99. THE ASSESSEE HAS ALSO FILED THE CROSS OBJECTION AGAINST THE REVENUES APPEAL. 2. THE LD. DEPARTMENTAL REPRESENTATIVE APPEARING FO R THE REVENUE POINTED OUT THAT THE CROSS OBJECTION FILED BY THE ASSESSEE SHOU LD NOT BE ADMITTED FOR THE TWO REASONS I.E. FIRSTLY THE CROSS OBJECTION HAS BEEN F ILED LATE BY 21 DAYS AND SECONDLY THE CROSS OBJECTION IS WITH RESPECT TO LEGAL ISSUE IN REGARD TO SERVICE OF NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 WHICH WAS RAISED BEFORE THE LD. CIT(A) BUT WAS NOT PRESSED. THEREFORE, THIS GROUND CANNOT BE TAKEN IN THE FORM OF CROSS OBJECTION BEFORE THE I.T.A.T. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AS REGARDS THE APPLICATION FILED FOR CONDONATION OF DE LAY BY THE LD. COUNSEL FOR THE ASSESSEE SHRI ALOK FARSAIYA, CHARTERED ACCOUNTANT, WE FIND SUFFICIENT AND REASONABLE CAUSE FOR THE DELAY IN FILING THE CROSS OBJECTION AND THEREFORE, IN THE CIRCUMSTANCES AND FACTS OF THE PRESENT CASE, WE CON DONE THE DELAY IN FILING THE CROSS OBJECTION BEFORE US. ITA NO.332/AGR/2010 & C.O. NO.31/AGR/2011 A.Y. 1998-99 3 4. AS REGARDS THE CROSS OBJECTION RAISED BEFORE THE LD. CIT(A), VIDE PARAGRAPH NO.3.1 OF HIS ORDER, THE LD. CIT(A) HAS OBSERVED TH AT DURING THE COURSE OF APPELLATE PROCEEDINGS, VIDE ORDER SHEET ENTRY DATED 07.04.201 0, THE LD. AUTHORISED REPRESENTATIVE OF THE APPELLANT STATED THAT THESE GROUNDS ARE NOT PRESSED. HENCE, THE APPEAL IS TREATED AS DISMISSED ON THESE GROUNDS . 5. AFTER HEARING THE PARTIES, WE ARE OF THE VIEW TH AT THE ASSESSEE HAS NOT PRESSED THE GROUNDS BEFORE THE LD. CIT(A) AND THEREFORE, TH E SAID GROUNDS AGAIN CANNOT BE TAKEN IN THE CROSS OBJECTION BEFORE THE I.T.A.T. T HEREFORE, THE CROSS OBJECTION RAISED BY THE ASSESSEE IS DISMISSED. 6. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LD. CIT(APPEALS)-I, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10,800/- ON ACCOUNT OF ESTIMATION OF INCOME IN RESPECT OF NOT PRODUCING THE EVIDENCE OF SHORT TERM CAPITAL GAIN, ON THE GROUND THAT NO COGENT REASON OR EVIDEN CE HAS BEEN BROUGHT ON RECORD IN SUPPORT OF THIS ADDITION WITHO UT APPRECIATING THE FACTS OF THE CASE; 2. THAT THE CIT(A)(APPEALS)-I, AGRA HAS ERRED IN LA W AND ON FACTS IN DELETING THE ADDITION OF RS.38,279/- ON ACCOUNT OF ESTIMATION OF INCOME IN RESPECT OF NOT PRODUCING THE EVIDENCE OF INCOME FROM OTHER SOURCES WITHOUT APPRECIATING THE FACTS OF THE CASE; ITA NO.332/AGR/2010 & C.O. NO.31/AGR/2011 A.Y. 1998-99 4 3. THAT THE CIT(A)(APPEALS)-I, AGA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.48,000/- ON ACCOUNT OF NO HOUSEHOLD WITHDRAWALS, ON THE GROUND THAT THE WITHDRAWAL SHOW N BY HER HUSBAND WITHOUT APPRECIATING THE FACTS OF THE CASE; 4. THAT THE CIT(A)(A)-I, AGRA IS BAD IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.7,82,770/- AND RS.10,91,513/- MADE ON ACCOUNT OF BOGUS SHARE TRANSACTION ENTRIES OF LO NG TERM CAPITAL GAIN EVEN WHEN THE ASSESSEE DID NOT DISCHARGE HIS O NUS TO PROVE THE GENUINENESS OF SHARE TRANSACTION RECEIPT; 5. THAT THE ORDER OF THE CIT(A)-1, AGRA IS ERRONEOU S A IN LAW AND ON FACTS OF THE CASE AND THAT THE ORDER OF THE A.O. BE RESTORED; 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY GROUND DURING THE APPELLANT PROCEEDINGS; 7. THE DEPARTMENT HAS FILED APPEAL BEFORE THE HONB LE ITAT ON IDENTICAL ISSUES IN OTHER CASES. 7. AS REGARDS GROUND NO.1, THE FACTS ARE THAT THE A SSESSEE HAS ENTERED INTO SALE AND PURCHASE OF SHARES WHICH ARE SPECULATIVE IN NAT URE AND THE ASSESSEE EARNED RS.89,200/- WHICH WAS DECLARED AS INCOME DURING THE YEAR. SINCE THE ASSESSMENT HAS BEEN MADE BY THE A.O. UNDER SECTION 144 OF THE ACT, THE ASSESSEE SUBMITTED ALL THE DETAILS BEFORE THE LD. CIT(A). WITH RESPECT TO THIS GROUND AND OTHER GROUNDS WHICH WERE FORWARDED TO THE A.O. FOR COMMENTS. THE ASSESSING OFFICER HAS SENT THE COMMENTS TO THE LD. CIT(A) VIDE LETTER DATED 28 .12.2006 AVAILABLE AT PAGE NOS.12 & 13 AND AGAIN AT PAGE NOS.39 & 40 OF THE PA PER BOOK. COUNTER REPLY BY THE ASSESSEE IS AVAILABLE AT PAGE NOS.41 TO 46 OF T HE PAPER BOOK. AFTER RECEIPT OF ITA NO.332/AGR/2010 & C.O. NO.31/AGR/2011 A.Y. 1998-99 5 THE REMAND REPORT AND CONSIDERING THE RELEVANT FACT S OF THE CASE, IT WAS OBSERVED BY THE LD. CIT(A) THAT ADMITTEDLY THE ASSESSEE DOES NO T HAVE ANY DETAILS OF THE SAID INCOME BUT AT THE SAME TIME NO COGENT REASONS OR EV IDENCE HAS BEEN BROUGHT ON RECORD BY THE A.O. TO ESTIMATE THE INCOME AT RS.1,0 0,000/- WHICH LED TO ADDITION OF RS.10,800/-. THE LD. CIT(A) ACCORDINGLY DELETED TH E ADDITION. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT NO COG ENT REASONS HAS BEEN BROUGHT ON RECORD IN SUPPORT OF THE ESTIMATION OF INCOME WHILE MAKING THE ADDITION AT RS.10,800/-. THEREFORE, WE FIND NO ERROR IN THE OR DER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION OF RS.10,800/- MADE BY THE A.O. THUS, GROUND NO.1 OF THE REVENUE IS DISMISSED. 9. AS REGARDS GROUND NO.2 OF THE REVENUE, THE A.O. HAS MADE THE ADDITION OF RS.38,279/- UNDER THE HEAD INCOME FROM OTHER SOURCE S WHICH WERE ESTIMATED BY THE A.O. AT RS.1,50,000/- IN PLACE OF RS.1,11,721/- DECLARED BY THE ASSESSEE IN THE ABSENCE OF ANY EXPLANATION GIVEN BY THE ASSESSEE. BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED THE EXPLANATION WHICH WERE FORWA RDED TO THE A.O. AND THE REMAND REPORT OBTAINED AND THE LD. CIT(A) DELETED T HE ADDITION FOR THE REASON THAT ITA NO.332/AGR/2010 & C.O. NO.31/AGR/2011 A.Y. 1998-99 6 COMPLETE DETAILS OF INTEREST ARE AVAILABLE IN THE A SSESSMENT RECORDS AND THEREFORE, ADDITION MADE BY THE A.O. ARE PURELY ARBITRARY AND ADHOC IN NATURE. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT ALL TH E DETAILS ARE AVAILABLE IN THE ASSESSMENT RECORDS AND THE ESTIMATION MADE IS PUREL Y ARBITRARY AND ADHOC AND THEREFORE, THE LD. CIT(A) HAS RIGHTLY DELETED THE A DDITION. WE FIND NO INFIRMITY IN HIS ORDER. THUS, GROUND NO.2 OF THE REVENUE IS DIS MISSED. 11. AS REGARDS GROUND NO.3, THE A.O. MADE AN ADDITI ON OF RS.48,000/- ON ACCOUNT OF HOUSE HOLD WITHDRAWALS SINCE THE ASSESSE E HAS NOT DECLARED THE HOUSEHOLD WITHDRAWALS. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED THE EXPLANATION WHICH WERE FORWARDED TO THE A.O. AND RE MAND REPORT OBTAINED. AFTER CONSIDERING THE REMAND REPORT AND EXPLANATION GIVEN BY THE ASSESSEE, THE LD. CIT(A) HAS DELETED THE ADDITION MADE BY THE A.O. ON THE BASIS THAT THE ADDITIONS ARE ON ADHOC BASIS AND ARE ARBITRARY AND NO COGENT REASON HAS BEEN BROUGHT ON RECORD BY THE A.O. ITA NO.332/AGR/2010 & C.O. NO.31/AGR/2011 A.Y. 1998-99 7 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS EXPLAINED BY THE ASSESSEE BEFORE THE LD. CIT(A) THA T IN THE SAME YEAR THE CASE OF HUSBAND OF THE ASSESSEE WAS ALSO TAKEN UP FOR SCRUT INY UNDER SECTION 143(3) OF THE ACT IN WHICH ADDITION FOR HOUSE HOLD EXPENSES WERE MADE BY THE A.O. WHICH WAS DELETED BY THE LD CIT(A). WHEN THE HUSBAND AND WIF E ARE LIVING TOGETHER, HOUSEHOLD EXPENSES HAVE NECESSARILY TO BE INCURRED JOINTLY AND THE HUSBAND HAS MADE SUFFICIENT WITHDRAWALS TO MEET THE EXPENSES OF THE WIFE ALSO. MOREOVER, WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT NO COG ENT REASON HAS BEEN CITED BY THE A.O. FOR ESTIMATING THE WITHDRAWALS WHICH ARE ON AD HOC AND ARBITRARY BASIS. THEREFORE, THE LD CIT(A) HAS RIGHTLY DELETED THE AD DITION MADE BY THE A.O. WE FIND NO ERROR IN HIS ORDER. THUS, GROUND NO.3 OF T HE REVENUE IS DISMISSED. 13. AS REGARDS GROUND NO.4 OF THE REVENUE, THE A.O. HAD MADE THE ADDITION OF RS.10,91,513/- AND RS.7,82,770/- BEING THE SHARES O F M/S. G.K.C.L. WHICH WERE PURCHASED IN EARLIER YEARS AND WERE SOLD DURING THE YEAR. IN THE ABSENCE OF ANY EXPLANATION BY THE ASSESSEE BEFORE THE A.O., THE A. O. TREATED THE TOTAL AMOUNT RECEIVED AS INCOME OF THE ASSESSEE. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED THE EXPLANATION WHICH WERE FORWARDED TO THE A.O. AN D THE REMAND REPORT OBTAINED AND ACCORDINGLY THE LD. CIT(A), AFTER CONSIDERING T HE FACTS AND CIRCUMSTANCES OF ITA NO.332/AGR/2010 & C.O. NO.31/AGR/2011 A.Y. 1998-99 8 THE CASE AND THE REMAND REPORT, WAS OF THE VIEW THA T THE A.O. HAS NOT BROUGHT ANY EVIDENCE OR MATERIAL AGAINST THE ASSESSEES CLAIM. NEITHER THE PURCHASE NOR SALE OF SHARES HAS BEEN PROVED AS NON-GENUINE. NO MATERIAL OR EVIDENCE ON RECORD WAS BROUGHT BY THE A.O. TO PROVE THAT THE BROKER M/S. G AMBHIR & ASSOCIATES WERE FOUND TO HAVE GIVEN ACCOMMODATION ENTRIES. SIMILAR LY, NOTHING ADVERSE HAS BEEN BROUGHT AGAINST THE COMPANY M/S. NIVEDAN FIN-INVEST LEASE LIMITED. ACCORDINGLY, THE LD. CIT(A) DELETED THE ADDITION MA DE BY THE A.O. 14. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE PURCHASE OF THE SHARES WHICH H AVE BEEN TAKEN IN THE DIRECT ALLOTMENT FROM THE COMPANY OR HAS BEEN DECLARED UND ER VDIS SCHEME UNDER SECTION 68(2) OF VDIS 1997. AS REGARDS THE SALE OF SHARES, IT WAS ARGUED THAT DIRECT ENQUIRIES WERE MADE BY THE DEPARTMENT FROM S UCH COMPANIES WHO HAD CONFIRMED TO HAVE TRANSFERRED THE SHARES IN THE NAM E OF THE ASSESSEE IS ALSO NOT IN DISPUTE. THEREFORE, THE PURCHASE AND SALE OF SHARE S ARE NOT IN DISPUTE. THERE IS NOTHING ADVERSE WITH RESPECT TO THE BROKERS. IN TH E CIRCUMSTANCES AND FACTS OF THE CASE, THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDI TION AND THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. WE F IND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). THUS, GROUND NO.4 OF THE REVENUE I S DISMISSED. ITA NO.332/AGR/2010 & C.O. NO.31/AGR/2011 A.Y. 1998-99 9 15. AS REGARDS GROUND NOS.5, 6 & 7, SINCE THE SAME ARE GENERAL IN NATURE, THEREFORE, DO NOT REQUIRE ANY ADJUDICATION. 16. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 332/AGR/2010 IS DISMISSED AND THE C.O. BEARING NO.31/AGR/2011 OF THE ASSESSEE IS ALSO DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 21.11.2011). SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 21 ST NOVEMBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY