ITO, Ward - 40(2), Kolkata , Kolkata V. Shri Ramesh Chand Gupta, Kolkata

ITA 1731/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3584 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 26-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C J SINGH
• Assessee Lawyers: MANISH TIWARI
• Section: 68; 2; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) ITA NO. 1731/KOL/2017 ASSESSMENT YEAR: 2014-15 INCOME TAX OFFICER, WARD-40(2), KOLKATA...................................APPELLANT VS. SHRI RAMESH CHAND GUPTA............................................RESPONDENT 16, TARA CHAND DUTTA STREET KOLKATA 700 073 [PAN : ABOPG 5071 A] APPEARANCES BY: SHRI MANISH TIWARI, FCA, APPEARED ON BEHALF OF THE ASSESSEE . SHRI C.J. SINGH, JCIT SR. D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 24 TH , 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 20 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 12, KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 20/04/2017, 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. NCL RESEARCH & FINANCE SERVICE 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 HUMAN PROBABILITIES TO UPHOLD THE FINDINGS OF THE AO. HE ALSO RELIED ON THE SO CALLED 2 ITA NO. 1731/KOL/2017 ASSESSMENT YEAR: 2014-15 SHRI RAMESH CHAND GUPTA 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 ISSUES HAVE BEEN ADDRESSED IN THE DECISION OF THE JURISDICTIONAL TRIBUNAL IN THE CASE OF INCOME TAX OFFICER VS. SHRI VISHWANATH GUPTA; ITA NO. 1732/KOL/2017; ASSESSMENT YEAR 2014-15; ORDER DT. 12/12/2018, AND WAS ADJUDICATED IN FAVOUR OF THE ASSESSEE. SIMILAR DECISIONS HAVE BEEN TAKEN IN THE FOLLOWING CASES:- 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 15.11.2017 3. 22 OF 2009 CALCUTTA HIGH COURT CIT, KOLKATA-III VS BHAGWATI PRASAD AGARWAL 29.04.2009 4. 456 OF 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 FOR THE SAKE OF BREVITY WE DO NOT EXTRACT FROM THESE ORDERS. 3 ITA NO. 1731/KOL/2017 ASSESSMENT YEAR: 2014-15 SHRI RAMESH CHAND GUPTA 5. WE ARE BOUND BY THE PROPOSITION OF LAW LAID DOWN IN THESE CASE LAW. 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 DECISION 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 REVENUE IS DISMISSED. KOLKATA, THE 20 TH DAY OF FEBRUARY, 2019. SD/- SD/- [ S.S. GODARA ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20.02.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. SHRI RAMESH CHAND GUPTA 16, TARA CHAND DUTTA STREET KOLKATA 700 073 2. INCOME TAX OFFICER, WARD-40(2), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES