Jagdish Kumar Agarwal , Siliguri V. ITO, Ward - 1(4) , Siliguri

ITA 1973/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5433 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 13-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Principle of natural justice; Set aside; Capital Gains; Bogus
• Section: 68; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER] I.T.A. NO. 1973/KOL/2018 ASSESSMENT YEAR: 2015-16 JAGDISH KUMAR AGARWAL.................APPELLANT [PAN : ACGPA 7387 Q] ITO, WARD - 1(4), SILIGURI......................................................................RESPONDENT & I.T.A. NO. 1974/KOL/2018 ASSESSMENT YEAR: 2015-16 SHEKHAR AGARWAL.................APPELLANT [PAN : APPPA 8906 D] ITO, WARD - 2(3), SILIGURI......................................................................RESPONDENT APPEARANCES BY: SHRI MIRAJ D. SHAH, AR, APPEARED ON BEHALF OF THE APPELLANT SHRI ROBIN CHOUDHURY, ADDL. CIT DR, APPEARING ON BEHALF OF THE RESPONDENT. DATE OF CONCLUDING THE HEARING : JANUARY 10, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 01,2019 O R D E R PER J. SUDHAKAR REDDY :- THESE APPEALS ARE FILED BY THESE ASSESSEES AND ARE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), SILIGURI (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DATED 07/08/2018 AND 06.08.2018 RESPECTIVELY. AS THE ISSUES ARE COMMON IN BOTH THE APPEALS, THEY ARE HEARD TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER. 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 JACKSON INVESTMENTS LIMITED. THE AO BASED ON A GENERAL REPORT AND MODUS OPERANDI ADOPTED GENERALLY 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 2 JAGDISH KUMAR AGARWAL & SHEKHAR AGARWAL I.T.A. NO. 1973 & 1974/KOL/2018 ASSESSMENT YEAR: 2015-16 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 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. D/R, SUBMITTED THAT THE TRANSACTION WAS NOT GENUINE. HE ARGUED THAT THE ENTIRE CAPITAL GAIN WAS STAGE MANAGED BY A FEW OPERATORS AND INVESTORS. HE RELIED ON THE ORDER OF LD. ASSESSING OFFICER AND ARGUED THAT THE SAME BE UPHELD. HE RELIED ON THE ORDER OF THE CHENNAI A BENCH OF THE TRIBUNAL IN THE CASE OF M/S. PANKAJ AGARWAL & SONS (HUF) VS. ITO IN ITA NO. 1413 TO 1420/CHNY/2018; ORDER DT. 06/12/2018, FOR THE PROPOSITION THAT SUCH CAPITAL GAINS HAVE TO BE BROUGHT TO TAX. HE ALSO RELIED ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SANJAY BIMALCHAND JAIN VS. PRINCIPAL COMMISSIONER OF INCOME-TAX-1, NAGPUR; [2018] 89 TAXMANN.COM 196 (BOMBAY) AND THE DECISION OF THE SMT. M.K. RAJESHWARI VS. ITO; ITA NO.1723/BNG/2018; ASSESSMENT YEAR 2015-16, ORDER DT. 12/10/2018. 5. AFTER HEARING BOTH SIDES, I FIND THAT IN A NUMBER OF CASES THIS BENCH OF THE TRIBUNAL AND JURISDICTIONAL CALCUTTA HIGH COURT HAS CONSISTENTLY HELD THAT, DECISION IN ALL SUCH CASES SHOULD BE BASED ON EVIDENCE AND NOT ON GENERALISATION, HUMAN PROBABILITIES, SUSPICION, CONJECTURES AND SURMISES. IN ALL CASES ADDITIONS WERE DELETED. SOME OF THE CASES WERE, DETAILED FINDING HAVE BEEN GIVEN ON THIS ISSUE, ARE LISTED BELOW:- 3 JAGDISH KUMAR AGARWAL & SHEKHAR AGARWAL I.T.A. NO. 1973 & 1974/KOL/2018 ASSESSMENT YEAR: 2015-16 SL.NO ITA NOS. NAME OF THE ASSESSEE DATE OF ORDER /JUDGMENT 1. ITA NO.714 TO 718/KOL/2011 ITAT, KOLKATA DICT VS. SUNITA KHEMKA 28.10.2015 2 214 ITR 244 CALCUTTA HIGH COURT CIT VS. CARBO INDUSTRIAL HOLDINGS LTD. - 3. 250 ITR 539 CIT VS. EMERALD COMMERCIAL LTD. 23.03.2001 4. ITA NO.1236- 1237/KOL/2017 MANISH KUMAR BAID VS. ACIT 18.08.2017 5. ITA NO.569/KOL/2017 GAUTAM PINCHA 15.11.2017 6 ITA NO.443/KOL/2017 KIRAN KOTHARI HUF 15.11.2017 7 ITA NO.2281/KOL/2017 NAVNEET AGARWAL VS. ITO 20.07.2018 8 ITA NO.456 OF 2007 BOMBAY HIGH COURT CIT VS. SHRI MUKESH RATILAL MAROLIA 07.09.2011 9 ITA NO.95 OF 2017 (O&M) PCIT VS. PREM PAL GANDHI 18.01.2018 10 ITA NO.1089/KOL/2018 SANJAY MEHTA 28.09.2018 IN THE CASE OF MS. ANUPAMA GARG VS. ITO, ITA NO.5971/DEL/2018 AND 3 OTHERS ORDER DATED 12.12.2018, THE DELHI SMC BENCH OF THE ITAT HAD CONSIDERED SIMILAR ISSUE ON THE PURCHASE AND SALE OF THIS VERY SAME SCRIPT I.E. M/S JACKSON INVESTMENTS LIMITED AND ADJUDICATED THE ISSUE IN FAVOUR OF THE ASSESSEE. 6. REGARDING THE CASE LAWS RELIED UPON BY THE LD. DEPARTMENTAL REPRESENTATIVE, I FIND THAT, IN THE CASE OF M/S. PANKAJ AGARWAL & SONS (HUF) (SUPRA), THE ISSUE WAS DECIDED AGAINST THE ASSESSEE FOR THE REASON THAT, THE ASSESSEE COULD NOT JUSTIFY HIS CLAIM AS GENUINE BY PRODUCING EVIDENCE AND WAS ONLY ARGUING FOR THE MATTER TO BE SET ASIDE TO THE LOWER AUTHORITIES ON THE GROUND OF NATURAL JUSTICE. AS SIMILAR ARGUMENTS WERE NOT RAISED BEFORE THE LOWER AUTHORITIES BY THE ASSESSEE, THE ITAT REJECTED THESE ARGUMENTS. IN THE CASE ON HAND, ALL EVIDENCES WERE PRODUCED BY THE ASSESSEE. IN THE CASE OF SANJAY BIMALCHAND JAIN, LEGAL HEIR OF SANTI DEVI BIMALCHAND JAIN, THE HONBLE HIGH COURT UPHELD THE STAND OF THE 4 JAGDISH KUMAR AGARWAL & SHEKHAR AGARWAL I.T.A. NO. 1973 & 1974/KOL/2018 ASSESSMENT YEAR: 2015-16 REVENUE THAT THE TRANSACTION IN QUESTION IS AN ADVENTURE IN NATURE OF TRADE AND THE PROFIT OF THE TRANSACTIONS IS ASSESSABLE UNDER THE HEAD OF BUSINESS INCOME. IN THE CASE ON HAND, THE LD. ASSESSING OFFICER HAS NOT ASSESSED THIS AMOUNT AS BUSINESS INCOME. IN ANY EVENT, I AM BOUND TO FOLLOW THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THIS MATTER. I FIND THAT THE ASSESSEE HAS FILED ALL NECESSARY EVIDENCES IN SUPPORT OF THE TRANSACTIONS. SOME OF THESE EVIDENCES ARE (A) EVIDENCE OF PURCHASE OF SHARES, (B) EVIDENCE OF PAYMENT FOR PURCHASE OF SHARES MADE BY WAY OF ACCOUNT PAYEE CHEQUE, COPY OF BANK STATEMENTS, (C) COPY OF BALANCE SHEET DISCLOSING INVESTMENTS, (D) COPY OF DEMAT STATEMENT REFLECTING PURCHASE, (E) COPY OF BROKER LEDGER ACCOUNT, (F) EVIDENCE OF SALE OF SHARES THROUGH THE STOCK EXCHANGE, (G) COPY OF DEMAT STATEMENT AFTER THE SALE OF SHARES, (H) COPY OF BANK STATEMENT REFLECTING SALE PROCEEDS RECEIPTS, (I) COPY OF BROKERS LEDGER, (J) COPY OF CONTRACT NOTES ETC. 7. THE PROPOSITION OF LAW LAID DOWN IN THESE CASE LAWS BY THE JURISDICTIONAL HIGH COURT AS WELL AS BY THE ITAT KOLKATA ON THESE ISSUES ARE IN FAVOUR OF THE ASSESSEE. THESE 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 HONBLE JURISDICTIONAL CALCUTTA HIGH COURT AND THE ITAT. I AM BOUND TO FOLLOW THE SAME. 8. IN VIEW OF THE ABOVE DISCUSSION I DELETE THE ADDITION MADE U/S 68 OF THE ACT, ON ACCOUNT OF LONG TERM CAPITAL GAINS. 9. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED. KOLKATA, THE 1 ST DAY OF FEBRUARY, 2019. SD/- [ J. SUDHAKAR REDDY] ACCOUNTANT MEMBER DATED : 01.02.2019 (RS, SR. PS) 5 JAGDISH KUMAR AGARWAL & SHEKHAR AGARWAL I.T.A. NO. 1973 & 1974/KOL/2018 ASSESSMENT YEAR: 2015-16 COPY OF THE ORDER FORWARDED TO: 1. (I) JAGDISH KUMAR AGARWAL, AKSHAYA APARTMENT, 2 ND FLOOR, SEVOKE ROAD, SILIGURI- 734001. (II) SHEKHAR AGARWAL, BLOCK-IV, FLAT NO.8, AKSHAY TARA APARTMENT, SEVOKE ROAD, SILIGURI- 734001. 2. (I) ITO, WARD - 1(4), SILIGURI, AAYAKAR BHAWAN, MATIGARA, SILIGURI 734004. (II) ITO, WARD-2(3), SILIGURI, AAYAKAR BHAWAN, MATIGARA, SILIGURI 734010. 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES