Renu Sablok, Agra V. I.T.O.-1(3), Agra

CO 61/AGR/2010

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6020 (ITAT-AGRA)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-07-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 27-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: MAHESH AGARWAL
• Keywords: Tax effect; Onus to prove; Reason to believe
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.320/AGR/2010 ASST. YEAR: 2002-03 INCOME TAX OFFICER- 1(3), VS. SMT. RENU SABLOK, AGRA. 56, PRATIKSHA ENCLAVE, DAYALBAGH, AGRA. (PAN : ALQPS 0518 L) C.O. NO.61/AGR/2010 (IN ITA NO.320/AGR/2010) ASST. YEAR: 2002-03 SMT. RENU SABLOK, VS. INCOME TAX, OFFICER- 1(3) , 56, PRATIKSHA ENCLAVE, AGRA. DAYALBAGH, AGRA. (PAN : ALQPS 0518 L) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI A.K. SHARMA, JR. D.R. ASSESSEE BY : SHRI MAHESH AGARWAL, C.A. ORDER PER BENCH : THE APPEAL BY THE REVENUE AND THE CROSS OBJECTION B Y THE ASSESSEE HAVE BEEN FILED AGAINST THE IMPUGNED ORDER DATED 27.04.2 010 PASSED BY THE LD. CIT(A)- I, AGRA ON THE FOLLOWING GROUNDS :- GROUNDS IN ITA NO.320/AGR/2010 :- 2 1. THAT THE CIT(A)-I, AGRA HAS ERRED IN LAW AND O N FACTS OF THE CASE IN DELETING THE ADDITION OF ` 5,81,162/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF SHARES EVEN WHEN THE A SSESSEE DID NOT DISCHARGE HER ONUS TO PROVE THE GENUINENESS OF SHAR E TRANSACTION RECEIPT; 2. THAT THE ORDER OF CIT(A)-I, AGRA IS ERRONEOUS IN LAW AND ON THE FACTS OF THE CASE AND THAT THE ORDER OF THE A.O. BE RESTORED; 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY GROUND DURING THE APPELLATE PROCEEDINGS. 4. THE DEPARTMENT HAS FILED APPEAL BEFORE THE HONB LE ITAT ON IDENTICAL ISSUES IN OTHER CASES. GROUNDS IN C.O. NO.61/AGR/2010 :- 1. THAT THE FIRST NOTICE U/S 148 WHICH WAS RECEIVE D BY THE APPELLANT WAS ISSUED TIME BARRED AS PER THE LIMITAT IONS PRESCRIBED IN THE PROVISIONS OF SECTION 149 OF THE INCOME TAX ACT , 1961. 2. THAT INITIATION OF PROCEEDINGS U/S 148 AND ISSUE OF NOTICE THEREON IS INVALID BEING THE PROCEEDINGS INITIATED BIASEDLY WITHOUT HAVING ANY VALID REASON TO BELIEVE BUT MERELY ON HY POTHETICAL IMAGINATIONS AND SELF MADE ASSUMPTIONS THAT THE INC OMES DECLARED BY THE ASSESSEE IN THEIR FILED RETURN OF INCOME ON 30. 07.2002 WAS ESCAPED INCOME AND HENCE ALL PROCEEDINGS THEREAFTER BEING N OT THE VALID PROCEEDINGS, LIABLE TO BE QUASHED. IT IS THEREFORE, PRAYED THAT THE RELIEF SHOULD BE G IVEN AND THE APPEAL BE ALLOWED AS PRAYED ABOVE. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS LESS THAN ` 2,00,000/-, THE SAME IS, THEREFORE, NOT MAINTAINABLE. THE LD. DEPARTMENTAL REPRESENTATIVE HAS CONCEDED TO THE STATEMENT OF THE LD. COUNSEL FOR THE ASSESSEE AND HAS NOT RAI SED ANY OBJECTION. 3 3. WE HAVE HEARD BOTH THE PARTIES AND NOTED THAT TH E TAX EFFECT IN THE PRESENT APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF TH E CIT(A) IS LESS THAN ` 2,00,000/- AND THE SAME IS IN CONTRAVENTION OF C.B.D.T. INSTRU CTION NO.5 OF 2008 DATED 15.05.2008 WHICH FINDS STATUTORY FORCE UNDER THE PR OVISIONS OF SECTION 268A OF THE INCOME-TAX ACT, 1961. THE SAME IS, THEREFORE, NOT MAINTAINABLE. THE CLAUSE NO.3 OF THE SAID C.B.D.T. INSTRUCTION HAS MADE IT CLEAR THAT APPEAL BEFORE THE TRIBUNAL BY THE REVENUE WILL HENCEFORTH BE FILED WHERE TAX E FFECT EXCEEDS ` 2,00,000/-. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE PR ESENT CASE, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND THE SAME IS DIS MISSED AS NOT MAINTAINABLE. 4. AS REGARDS TO THE CROSS OBJECTION FILED BY THE A SSESSEE, AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED TH AT HE DOES NOT WISH TO PRESS THE CROSS OBJECTION FILED BY THE ASSESSEE AND, THEREFOR E, THE CROSS OBJECTION FILED BY THE ASSESSEE STANDS DISMISSED AS NOT PRESSED. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE AS WE LL AS THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 19.07.2 011). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 19 TH JULY, 2011 4 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY