Sushila Devi Agarwal , Siliguri V. ITO, Ward - 2(2), Siliguri , Siliguri

ITA 1081/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7533 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 21-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIJUSH MUKHERJEE
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER) ITA NO. 1081/KOL/2018 ASSESSMENT YEAR: 2014-15 SUSHILA DEVI AGARWAL.........................................................APPELLANT C/O NORTH BENGAL AGENCY MANGTURAM ROAD SILIGURI 734 005 [PAN : ACLPA 0105 F] VS. INCOME TAX OFFICER, WARD-2(2), SILIGURI...............................RESPONDENT APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE . SHRI PIJUSH MUKHERJEE, JCIT D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : NOVEMBER 29 TH , 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 16 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- SILIGURI, (HEREINAFTER THE LD. CIT(A)), DT. 04/05/2018, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2014-15. 2. THE SOLE ISSUE THAT ARISES FOR MY ADJUDICATION IS WHETHER THE ASSESSING OFFICER WAS RIGHT IN REJECTING THE CLAIM OF THE ASSESSEE THAT HE HAD EARNED LONG TERM CAPITAL GAINS ON PURCHASE AND SALE OF THE SHARES OF M/S. KAILASH AUTO FINANCE LTD. THE AO BASED ON A GENERAL REPORT AND MODUS OPERANDI ADOPTED GENERALLY IN THESE CASES AND ON GENERAL OBSERVATIONS HAS CONCLUDED THAT THE ASSESSEE HAS CLAIMED BOGUS LONG TERM CAPITAL GAIN. HE MADE AN ADDITION OF THE ENTIRE SALE PROCEEDS OF THE SHARES AS INCOME AND REJECTED THE CLAIM OF EXEMPTION MADE U/S 10(38) OF THE ACT. THE EVIDENCE PRODUCED BY THE ASSESSEE IN SUPPORT OF THE GENUINENESS OF THE TRANSACTION WAS REJECTED. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL AND THE LD. CIT(A), KOLKATA, HAD UPHELD THE ADDITION. THE LD. CIT(A) HAS IN HIS ORDER RELIED UPON CIRCUMSTANTIAL EVIDENCE AND 2 ITA NO. 1081/KOL/2018 ASSESSMENT YEAR: 2014-15 SUSHILA DEVI AGARWAL HUMAN PROBABILITIES TO UPHOLD THE FINDINGS OF THE AO. HE ALSO RELIED ON THE SO CALLED RULES OF SUSPICIOUS TRANSACTION. NO DIRECT MATERIAL WAS FOUND TO CONTROVERT THE EVIDENCE FILED BY THE ASSESSEE, IN SUPPORT OF THE GENUINENESS OF THE TRANSACTIONS. IN OTHER WORDS, THE OVERWHELMING EVIDENCE FILED BY THE ASSESSEE REMAINS UNCHALLENGED AND UNCONTROVERTED. THE ENTIRE CONCLUSIONS DRAWN BY THE REVENUE AUTHORITIES, ARE BASED ON A COMMON REPORT OF THE DIRECTOR OF INVESTIGATION, KOLKATA, WHICH WAS GENERAL IN NATURE AND NOT SPECIFIC TO ANY ASSESSEE. THE ASSESSEE WAS NOT CONFRONTED WITH ANY STATEMENT OR MATERIAL ALLEGED TO BE THE BASIS OF THE REPORT OF THE INVESTIGATION WING OF THE DEPARTMENT AND WHICH WERE THE BASIS ON WHICH CONCLUSION WERE DRAWN AGAINST THE ASSESSEE. COPY OF THE REPORT WAS ALSO NOT GIVEN. 4. THE LD. A/R, HAS GIVEN A DETAILED WRITTEN SUBMISSION THAT ALL THESE POINTS HAVE BEEN ADDRESSED IN THE DECISION OF THE JURISDICTIONAL TRIBUNAL IN THE CASE OF 1236- 1237/K/17 ITAT KOLKATA; MANISH KUMAR BAID & OTHERS VS ACIT; ORDER DT. 18.08.2017 & 2281/KOL/2017; ITAT KOLKATA NAVNEET AGARWAL, LEGAL HEIR OF LATE KIRAN AGARWAL VS ITO,WARD-35(3),CALCUTTA, ORDER DT. 20.07.2018. 5. WE ARE BOUND BY THE PROPOSITION OF LAW LAID DOWN IN THESE CASE LAW BY THE BY THE ITAT KOLKATA AND THE JURISDICTIONAL HIGH COURT OF CALCUTTA. THEY ARE SQUARELY APPLICABLE TO THE FACTS OF THE CASE. THE LD. DEPARTMENTAL REPRESENTATIVE, THOUGH NOT LEAVING HIS GROUND, COULD NOT CONTROVERT THE CLAIM OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE IN QUESTION IS COVERED BY THE ABOVE CITED DECISIONS OF THE ITAT. 6. IN VIEW OF THE ABOVE DISCUSSION THE ADDITION MADE U/S 68 OF THE ACT IS DELETED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 16 TH DAY OF JANUARY, 2019. SD/- [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 16.01.2019 {SC SPS} 3 ITA NO. 1081/KOL/2018 ASSESSMENT YEAR: 2014-15 SUSHILA DEVI AGARWAL COPY OF THE ORDER FORWARDED TO: 1. SUSHILA DEVI AGARWAL C/O NORTH BENGAL AGENCY MANGTURAM ROAD SILIGURI 734 005 2. INCOME TAX OFFICER, WARD-2(2), SILIGURI 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES