ACIT-2(1), RAIPUR (CG) V. SHRI BJJRANG LAL GUPTA, Odisha

ITA 133/BIL/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2283 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 09-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJIV VARSHNEY
• Assessee Lawyers: R B DOSHI
• Keywords: Unexplained investment; Income from undisclosed sources; Opportunity of being heard; Additional evidence

Judgement Text

1 ITA NO. 133/BLPR/2012. IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 133/BLPR/2012 ASSESSMENT YEAR : 2008 - 09. ASSTT. COMMISSIONER OF INCOMETAX - 2(1), SHRI BAJRANG LAL GUPTA, RAIPUR. VS. KOTMARA, POST CHANDUTARA, DIST. BALANGIR (ORRISA). PAN AGZPG4266B. APPELLANT. RESPONDENT. APPELLANT BY : SHRI RAJIV VARSHNEY. RESPONDENT BY : SHRI R.B. DOSHI. DATE OF HEARING : 15 - 10 - 2015. DATE OF PRONOUNCEMENT : 30 TH NOV., 2015. O R D E R PER SHRI SHAMIN YAHYA, A.M . THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS), RAIPUR DATED 05 - 06 - 2012 AND PERTAINS TO ASSESSMENT YEAR 2008 - 09. THE GROUNDS OF APPEAL READ AS UNDER: 1. WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING T H E ADDITION OF RS.10,00,000/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHARES OF PRIME ISPAT LTD. 2. WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS JUSTIFIED IN ADMITTING ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF I. TAX RULES, 1962. 2. IN THIS CASE THE AO MADE THE ADDITION BY HOLDING AS UNDER : ON PERUSAL OF COMPUTATION OF STATEMENT OF INCO ME SUBMITTED WITH THE RETURN OF INCOME FOR A.Y. 2009 - 10 SHOWS THAT DURING 2009 - 10, THE ASSESSEE (ON 16.06.2008) HAS SOLD THE SECURITIES OF PRIME ISPAT (P) LTD. FOR RS.50,000/ - , THE COST OF WHICH IS STATED AT RS.10,00,000/ - (AS ON 2 ITA NO. 133/BLPR/2012. 12.09.2007). THE ASSESSEE HAS NOT ENCLOSED ANY CAPITAL ACCOUNT, BALANCE SHEET. ALSO NO OTHER INFORMATION AS REGARDS THE SOURCE OF INCOME OF RS.10,00,000/ - IN RESPECT OF SHARES OF PRIME ISPAT LTD. IS AVAILABLE ON RECORD/NEITHER ANY DETAILS ARE SUBMITTED BY THE ASSESSEE IN THIS REGA RD. IT IS FOUND THAT THE ASSESSEE IS DECLARING INCOME OF LESS THAN RS.1,00,000/ - . AS DISCUSSED IN PARA 3 ABOVE, EVEN HIS DRAWING FOR PERSONAL EXPENSES ARE INADEQUATE, THEREFORE, A SEPARATE ADDITION ON THIS COUNT IS MADE FOR ALL THE YEARS. IN THE CIRCUMSTAN CES, THE INVESTMENT OF RS.10,00,000/ - IN SHARES OF PRIME ISPAT LTD. IS TREATED AS BEING OUT OF HIS UNDISCLOSED INCOME, THE PARTICULARS OF WHICH ARE NOT DISCLOSED. THEREFORE, THIS AMOUNT OF RS.10,00,000/ - IS ADDED TO THE TOTAL INCOME AS UNDISCLOSED INCOME F OR THE YEAR. 3. UPON ASSESSEES APPEAL, LEARNED CIT(APPEALS) DELETED THE ADDITION HOLDING AS UNDER : 4.3 I HAVE GONE THROUGH THE OBSERVAT I ONS OF THE A.O. AND SUBMISSIONS OF THE APPELLANT. THE APPELLANT DID NOT CLAIM ANY LOSS AS ALLEGED BY THE A.O. IN LINE 3 OF PARA 4 OF THE ASSESSMENT ORDER FOR A.YR. 2006 - 07, THE SHARES WERE PURCHASED ON 12.09.2007 AND SOLD ON 16.06.2008. THUS, NONE OF THE DATES FALL IN THIS ASSESSMENT YEAR. ACCORDINGLY, THE ADDITION MADE IN THIS YEAR IS APPARENTLY INCORRECT, HENCE DELET ED 4.4 SIMILARLY, THE COPY OF CAPITAL ACCOUNT AND BALANCE SHEET, SHARE INVESTMENT ACCOUNT, BANK STATEMENT AND CONFIRMATION OF SHRI RAM KUMAR AGRAWAL FILED BEFORE THE A.O. ESTABLISH THE SOURCE OF INVESTMENT IN SHARES. THE TRANSACTIONS WERE MADE THROUGH BANK ING CHANNEL. THE A.O. DID NOT CONDUCT ANY INQUIRY BEFORE TAKING A DIFFERENT VIEW AND THE INFERENCE DRAWN BY THE A.O. IS WITHOUT ANY BASIS. THE IMMEDIATE SOURCE OF DEPOSIT IS FOUND VERIFIABLE. UNDER THESE CIRCUMSTANCES, THE ADDITION MADE BY THE A.O. IS NOT CORRECT, HENCE DELETED. 4. AGAINST THE ABOVE ORDER, REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. ADMITTEDLY AS APPARENT FROM THE AOS ORDER THE SHARES WERE PURCHASED ON 12 - 09 - 2007 FOR RS.10 LAKHS AND THEY RE LATED TO SECURITIES OF PRIME ISPAT. THE AO HAS NOTED THAT THE ASSESSEE HAD NOT SUBMITTED ANY DETAILS IN THIS REGARD. THE AO HAS ALSO FOUND THAT THE DRAWINGS ARE ALSO VERY LOW. HENCE RS.10 LAKHS WAS ADDED AS INCOME FROM UNDISCLOSED SOURCES. BEFORE THE LE ARNED CIT(APPEALS) THE ASSESSEE HAS CONTENDED THAT COPY OF CAPITAL ACCOUNT AND BALANCE SHEET WERE FILED 3 ITA NO. 133/BLPR/2012. BEFORE THE AO AND THE AOS OBSERVATION THAT THE SAID DOCUMENTS WERE NOT FILED WAS FACTUALLY INCORRECT. THE ASSESSEE HAS ALSO DISPUTED THE AOS OBSERVATI ON THAT THE TRANSACTION WAS SHAM. LEARNED CIT(APPEALS) HAS DELETED THE ADDITION BY TAKING INTO ACCOUNT VARIOUS DETAILS SUBMITTED BY THE ASSESSEE IN THIS REGARD. ADMITTEDLY THE LEARNED CIT(APPEALS) HAS NOT EXAMINED AS TO WHETHER THESE DOCUMENTS WERE BEFORE THE AO OR NOT. THE AO IN HIS ORDER HAS CLEARLY SPELT OUT THAT NO DOCUMENT IN THIS REGARD WAS FURNISHED. IN THESE CIRCUMSTANCES, IN OUR CONSIDERED OPINION IT WAS INCUMBENT UPON THE LEARNED CIT(APPEALS) TO GIVE THE AO AN OPPORTUNITY TO EXAMINE THE DETAILS I N THIS REGARD. FURTHER WE DO NOT FIND ANY MERIT IN THE ASSESSEES CONTENTION THAT GENUINENESS OF THE TRANSACTION CANNOT BE A PARAMETER ON THE BASIS OF WHICH INVESTMENT COULD HAVE BEEN ADDED BY THE AO. IN THESE CIRCUMSTANCES, IN OUR CONSIDERED OPINION, REV ENUES GROUND THAT THERE IS VIOLATION OF RULE 46A IS UPHELD. ACCORDINGLY WE REMIT THE ISSUE TO THE FILE OF THE AO TO EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE ADDITIONAL EVIDENCES AND SUBMISSIONS BEFORE THE LEARNED CIT(APPEALS). NEEDLESS TO ADD THE ASSE SSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF NOV., 2015. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL M EMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 30 TH NOV.., 2015. 4 ITA NO. 133/BLPR/2012. COPY FORWARDED TO : 1. SHRI BAJRANG LAL GUPTA, KOTMAQRA, POST CHANDUTARA, DIST. BALANGIR (ORRISA). 2. A.C.I.T. - 2(1), ,RAIPUR. 3. C.I.T., CONCERNED 4. CIT(APPEALS), RAIPUR. 5. D.R., ITAT, RAIPUR. 6. GUARD FILE TRUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR, ITAT, NAGPUR