Taruna Devi Barmecha , Kolkata V. ITO, Ward - 36(4), Kolkata , Kolkata

ITA 1199/KOL/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0874 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 31-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Capital Gains; Bogus
• Section: 250; 22

Judgement Text

ITA NO.1199/KOL/2018 TARUNA DEVI BARMECHA A.Y.2015- 16 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC K OLKATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM] ITA NO.1199/KOL/2018 ASSESSMENT YEAR : 2015-16 SMT. TARUNA DEVI BARMECHA -VERSUS- I.T.O., WARD -36(4), KOLKATA KOLKATA (PAN: AHOPB 2619 R) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI MIRAJ D.SHAH, AR FOR THE RESPONDENT: SHRI KALYAN NATH, ADDL. CIT DATE OF HEARING : 05.09.2018 DATE OF PRONOUNCEMENT : 05.10.2018. ORDER PER J.SUDHAKAR REDDY, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX-(A)-10, KOLKATA DATED 0 2.04.2018 PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT ) RELATING TO A .Y. 2015-16. 2. THE SOLE ISSUE THAT ARISES FOR MY ADJUDICATION IS WHETHER THE ASSESSING OFFICER WAS RIGHT IN REJECTING THE CLAIM OF THE ASSESSEE TH AT HE HAD EARNED LONG TERM CAPITAL GAINS ON PURCHASE AND SALE OF THE SHARES OF M/S KAI LASH AUTO FINANCE LTD.. THE AO BASED ON A GENERAL REPORT AND MODUS OPERANDI ADOPTE D GENERALLY IN THESE CASES AND ON GENERAL OBSERVATIONS HAS CONCLUDED THAT THE ASSESSE E HAS CLAIMED BOGUS LONG TERM CAPITAL GAIN. HE MADE AN ADDITION OF THE ENTIRE SAL E 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 GENUINEN ESS OF THE TRANSACTION WAS REJECTED. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL AND T HE LD. CIT(A)-10, KOLKATA, HAD UPHELD THE ADDITION. THE LD. CIT(A) HAS IN HIS ORDE R RELIED UPON CIRCUMSTANTIAL EVIDENCE AND HUMAN PROBABILITIES TO UPHOLD THE F INDINGS 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 S UPPORT OF THE GENUINENESS OF THE ITA NO.1199/KOL/2018 TARUNA DEVI BARMECHA A.Y.2015- 16 2 TRANSACTIONS. IN OTHER WORDS, THE OVERWHELMING EVID ENCE FILED BY THE ASSESSEE REMAINS UNCHALLENGED AND UNCONTROVERTED. THE ENTIRE CONCLUS IONS DRAWN BY THE REVENUE AUTHORITIES, ARE BASED ON A COMMON REPORT OF THE DI RECTOR 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 T O 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. UNDER THE CIRCUMSTANCES, IN A NUMBER OF CASES TH IS BENCH OF THE TRIBUNAL HAS CONSISTENTLY HELD THAT DECISION IN ALL SUCH CASES S HOULD BE BASED ON EVIDENCE AND NOT ON GENERALISATION, HUMAN PROBABILITIES, SUSPICION, CONJECTURES AND SURMISES. WE HAVE IN ALL CASES DELETED SUCH ADDITIONS. SOME OF THE CA SES WERE DETAILED FINDING WHICH ARE LISTED BELOW :- SL.NO ITA NOS. NAME OF THE ASSESSEE DATE OF ORDER /JUDGMENT 1. 1236-1237/K/17 ITAT - KOLKATA MANISH KUMAR BAID & OTHERS VS ACIT 18.08.2017 2 443/KOL/2017 KIRAN KOTHARI (HUF) VS ITO 15.11.201 7 3. 22 OF 2009 CALCUTTA HIGH COURT CIT, KOLKATA-III VS BHAGWATI PRASAD AGARWAL 29.04.2009 4. 456 IF 2007 BOMBAY HIGH COURT CIT VS SHRI MUKHESH RATILAL MAROLIA 07.09.2011 5. 18 OF 2017 PUNJAB AND HARYANA HIGH COURT PR. C.I.T. (CENTRAL)LUDHIANA VS SH.HITESH GANDHI, 16.02.2017 6. 95 OF 2017 PUNJAB AND HARYANA HIGH COURT PR. C.I.T. VS PREM PAL GANDHI 18.01.2018. 7. 2281/KOL/2017 ITAT - KOLKATA NAVNEET AGARWAL, LEGAL HEIR OF LATE KIRAN AGARWAL VS ITO,WARD- 35(3),CALCUTTA 20.07.2018 5. I AM BOUND BY THE PROPOSITION OF LAW LAID DOWN I N THESE CASE LAW. THEY ARE SQUARELY APPLICABLE TO THE FACTS OF THE CASE. THE L D. DEPARTMENTAL REPRESENTATIVE, THOUGH NOT LEAVING HIS GROUND, COULD NOT CONTROVER T THE CLAIM OF THE LD. COUNSEL FOR ITA NO.1199/KOL/2018 TARUNA DEVI BARMECHA A.Y.2015- 16 3 THE ASSESSEE THAT THE ISSUE IN QUESTION IS COVERED BY THE ABOVE CITED DECISIONS OF THE HONBLE HIGH COURTS AND THE ITAT. 6. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON TH E JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SECURITIES AND EXCHANG E BOARD OF INDIA VS RAKHI TRADING PRIVATE LTD IN CIVIL APPEAL NO.1969 OF 2011 WITH CIVIL APPEAL NOS.3174- 3177 OF 2001 AND CIVIL APPEAL NO.3180 OF 2011. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THERE IS NO SURVIVING ORDER OF SEBI AG AINST THE ASSESSEE OR THE COMPANY, THE SCRIPT OF WHICH WAS PURCHASED AND SOLD BY THE A SSESSEE. WHEN THERE IS NO SURVIVING ADVERSE ORDER OF SEBI, AGAINST THE CLAIM OF THE ASSESSEE, THE JUDGMENT OF THE HONBLE SUPREME COURT CANNOT BE APPLIED TO THE FACT S OF THIS CASE. 7. IN VIEW OF THE ABOVE DISCUSSION THE ADDITION IN QUESTION IS DELETED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. O RDER PRONOUNCED IN THE COURT ON 05.10.2018. SD/- [ J.SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 05.10.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.SMT. TARUNA DEVI BARMECHA, 11, POLLOCK STREET, 3 RD FLOOR, NEAR CANNING STREET, KOLKATA-700001. 2. I.T.O., WARD-36(4), KOLKATA. 3. C.I.T.(A)- 10, KOLKATA 4. C.I.T-12, KOLKAT A 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCHES ITA NO.1199/KOL/2018 TARUNA DEVI BARMECHA A.Y.2015- 16 4