The I.T.O.-4(4), Agra V. Sh. Sanjeev Bansal, Agra

ITA 200/AGR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60110 (ITAT-AGRA)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-04-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 03-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SOHAIL AKHTAR
• Assessee Lawyers: ROOP KISHORE AGARWAL
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.200/AGR/2011 ASSESSMENT YEAR: 2001-02 INCOME TAX OFFICER-4(4), VS. SHRI SANJEEV BANSAL, AGRA. F-13, PROFESSOR COLONY, KAMLA NAGAR, AGRA. (PAN : ABZPB 3848 D). C.O. NO.39/AGR/2011 (IN ITA NO.200/AGR/2011) ASSESSMENT YEAR: 2001-02 SHRI SANJEEV BANSAL, VS INCOME TAX OFFICER-4(4), F-13, PROFESSOR COLONY, AGRA. KAMLA NAGAR, AGRA. (PAN : ABZPB 3848 D). (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI SOHAIL AKHTAR, JR. D.R. ASSESSEE BY : SHRI ROOP KISHORE AGARWAL, A DVOCATE DATE OF HEARING : 10.04.2012 DATE OF PRONOUNCEMENT : 13.04.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: ITA NO.200/AGR/2011 & CO NO.39/AGR/2011 A.Y.2001-02 2 THE APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE HAVE BEEN FILED AGAINST THE ORDER DATED 01.03.2011 PASSE D BY THE LD. CIT(A)-II, DEHRADUN, (CAMP: AGRA) FOR THE ASSESSMENT YEAR 2001 -02. 2. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE CROSS OBJECTION IS IN SUPPORT OF THE ORDER OF CIT(A), THEREFORE, THE SAME IS NOT PRESSED. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE, WE DISMISS THE CROSS OBJECTION FILED BY THE ASSESSEE AS NOT PRESSED. 3. THE GROUND RAISED IN REVENUES APPEAL ARE REPROD UCED AS UNDER :- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 11,72,690/- MADE BY THE ASSESSING OFFICER REGARDING BOGUS TRANSACTION OF SHARES IGNORING THE FACT THAT THE ASSESSEE COULD NOT PROVE THE SALE OF SHARES AS WELL AS THE GENUINENESS AND CORRECTNESS OF TRANSACTIONS DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 11,72,690/- BY TAKING RECOURSE TO THE ORDER OF THE HONBLE ITAT, AGRA BEN CH IN THE CASE OF SHRI ASHOK KUMAR LAVANIA, M/S BAIJNATH AGARWAL ETC. , THOUGH THE FACTS OF THESE CASES ARE DISTINGUISHABLE FROM THE F ACTS OF THE PRESENT CASE. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 11,72,000/- BY TAKING RECOURSE TO THE ORDER OF THE HONBLE ITAT, AGRA BE NCH IN THE CASE OF ITA NO.200/AGR/2011 & CO NO.39/AGR/2011 A.Y.2001-02 3 SMT. ANJU BANSAL VS. ITO-4(1) , AGRA (ITA NO.478/A GR/2007) THOUGH THE FACTS OF BOTH THE CASES ARE NOT SIMILAR. 4. THAT THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), AGRA BEING ERRONEOUS IN LAW AND ON FACTS DESERVES T O BE QUASHED AND THAT OF THE ASSESSING OFFICER DESERVES TO BE REST ORED. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OR MORE GROUNDS OR GROUNDS OF APPEAL AS MAY BE DEEMED FIT A T THE TIME OF HEARING OF APPEAL. 4. THE BRIEF FACTS OF THE CASE ARE THAT IT HAS BEEN NOTED IN THE ASSESSMENT ORDER THAT INFORMATION RECEIVED FROM ADDL. DIT (INV.), AG RA THROUGH ADDL. CIT, RANGE- 4, AGRA THAT ONE M/S NORTH INDIA SECURITIES PVT. LT D., DELHI HAS PROVIDED BOGUS ENTRIES OF SALE PROCEEDS OF SHARES TO THE ASSESSEE THROUGH THE BANK ACCOUNT OF STATE BANK OF BIKANER AND JAIPUR. ON ENQUIRY, IT WAS FOU ND THAT NO GENUINE TRANSACTION IN SALE/PURCHASE OF SHARES HAS TAKEN PLACE THROUGH THE SAID BANK ACCOUNT. THE BENEFICIARIES HAVE TAKEN ENTRIES BY PAYING IN CASH AMOUNT EQUIVALENT TO THE DRAFT/CHEQUE AMOUNT AND CERTAIN PREMIUM ON THAT. T HE BROKER ON RECEIPT OF CASH FROM THE BENEFICIARIES DEPOSITED THE SAME IN THE BA NK ACCOUNT AND THEN ISSUED DRAFT/CHEQUE TO THE BENEFICIARIES. THE ADDL. DIT ( INV.), AGRA HAS PROVIDED SUCH BENEFICIARIES WHEREIN THE NAME OF THE ASSESSEE SHRI SANJEEV BANSAL FALLS UNDER THE JURISDICTION OF THE ASSESSING OFFICER. THE ASSESSI NG OFFICER, AFTER EXAMINING THE ISSUE, HELD AS UNDER :- ITA NO.200/AGR/2011 & CO NO.39/AGR/2011 A.Y.2001-02 4 IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES IT CAN BE SEEN THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE SALE OF SH ARES AND THE GENUINENESS OF THE RECEIPT OF THE MONEY FROM THE AL LEGED SALE OF SHARES. THE ASSESSEE HAS FAILED TO PRODUCE THE PAR TY TO WHOM THE SHARES HAVE BEEN ALLEGEDLY SHOWN TO HAVE BEEN SOLD AND THE BROKER THROUGH WHOM THE ALLEGED SALE OF SHARES HAVE BEEN S HOWN TO HAVE TAKEN PLACE. THE ASSESSEE WAS ASKED TO PRODUCE THE ABOVE PERSONS ALONGWITH THEIR BOOKS OF ACCOUNT AND BANK ACCOUNTS IN ORDER TO MAKE VERIFICATIONS TO THE ULTIMATE SOURCE FROM WHERE THE AMOUNT OF ` 13,69,039/- HAVE ORIGINATED AND HAVE BEEN GIVEN TO THE ASSESSEE BY CHEQUE/DRAFT. HAD THE ASSESSEE PRODUCED THE BOOKS OF ACCOUNT AND BANK ACCOUNTS OF THESE PERSONS, IT WOULD HAVE BEEN POSSIBLE FOR ME TO SHOW AFTER ROUTING BACK THE ENTRIES IN THE BANK ACC OUNTS, TO SHOW THE ACTUAL SOURCE OF THE MONEY RECEIVED BY THE ASSESSEE TO THE CASH DEPOSIT IN THE BANK. IT IS IN ORDER TO PREVENT FRO M MAKING THESE INVESTIGATIONS THAT THE ASSESSEE HAS NOT PRODUCED T HE BOOKS OF ACCOUNT AND BANK ACCOUNT OF THESE PERSONS. IT MAY ALSO BE POINTED OUT THAT THE ASSESSEE HAS NOT EVEN DISCHARGED ITS INITIAL/PRIMAR Y ONUS OF FILING THE CONFIRMATIONS FROM THESE PARTIES. IN THIS CONNECTI ON IT MAY MENTIONED THAT THE ASSESSEE HAS TAKEN BOGUS ENTRY ON 07.04.20 01 AND RECEIVED AN AMOUNT OF ` 1,65,985/- & ` 30,364/-, TOTALING TO ` 1,96,349/- THROUGH DD/CHEQUE NO.129178 AND 270764 ISSUED BY M/ S NORTH INDIA SECURITIES PVT. LTD., 163/9, DEV NAGAR, DELHI AND T HE SAME IS DEPOSITED IN HIS BANK ACCOUNT NO.3563 OF VIJAYA BAN K, JEONI MANDI, AGRA. THE ASSESSMENT FOR THE ASSESSMENT YEAR 2002- 2003 HAS ALSO BEEN OPENED U/S 148 AND THESE DEPOSITS ARE BEING CO NSIDERED IN THE ASSESSMENT YEAR 2002-2003 AS THE DATE OF DD/CHEQUE IS 07.04.2001 AND IS RELEVANT FOR THE ASSESSMENT YEAR 2002-2003. REGARDING THE CREDIT ENTRY OF ` 99,750/- ON 03.04.2001 AND OF ` 2,99,460/- ON 04.04.2001 IT MAY BE MENTIONED THAT THOUGH THESE EN TRIES RELATE TO A.Y. 2002-2003, YET THE ASSESSEE IN HIS LETTER DATE D 30.11.2006 ENCLOSING THERE WITH BANK RECONCILIATION STATEMENT HAS ADMITTED THAT THESE CHEQUES WERE DEPOSITED BY HIM ON 31.03.2001. CONSIDERED THE ABOVE FACTS, AN ADDITION OF ` 11,72,690/- IS MADE TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCE AS THE A SSESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF THE SALE OF SHARES AND THE GENUINENESS OF THE SOURCE OF THE SUM OF ` 11,72,690/-. ITA NO.200/AGR/2011 & CO NO.39/AGR/2011 A.Y.2001-02 5 5. THE CIT(A) DIRECTED THE ASSESSING OFFICER TO ACC EPT THE INCOME AND INCOME FROM CAPITAL GAIN AS UNDER :- 5. IN THE COURSE OF APPELLATE PROCEEDINGS THE LD. A.R. SHRI ROOP KISHORE AGARWAL, ADVOCATE REITERATED THE CONTENTION S REGARDING PURCHASE AND SALE OF SHARES AS EXPLAINED TO HIM BEF ORE THE A.O. AND DISCUSSED BY THE A.O. AT PARA 2.2 OF THE ASSESSMENT ORDER. IT IS SEEN THAT THE VERY BASIS OF ASSESSMENT OF LONG TERM CAPI TAL GAINS AS INCOME FROM OTHER SOURCES HAS BEEN DISLODGED WITH THE HON BLE JURISDICTIONAL TRIBUNAL HOLDING THE TRANSACTIONS IN SHARES IN THE CASE OF THE AFORESAID SHRI ASHOK KUMAR LAVANIA, M/S BAIJ NATH A GARWAL ETC. AS GENUINE. SECONDLY, SHRI R.K. AGARWAL, ADVOCATE HAS SUBMITTED THAT THE HONBLE JURISDICTIONAL ITAT IN THE CASE OF SMT. ANJU BANSAL VS. ITO-4(1), AGRA IN ITA NO.478/AGR/2007 HAS ALREADY G IVEN ITS DECISION IN RESPECT OF THE SHARES OF M/S KAUSHAMBI FINVEST L EASE LTD. AND NORTH INDIA SECURITIES (P) LTD. BY DELETING THE ADD ITIONS MADE BY ASSESSING THE DECLARED CAPITAL GAINS INCOME AS INCO ME FROM UNDISCLOSED SOURCES. A COPY OF THE SAID ORDER OF H ONBLE TRIBUNAL DATED 19.05.2008 HAS ALSO BEEN FURNISHED. SINCE TH E TRANSACTIONS INVOLVED IN THE PRESENT CASE ARE IDENTICAL AND COMP ANIES INVOLVED ARE ALSO THE SAME, THE ORDER OF THE HONBLE TRIBUNAL FU LLY COVERS THE ISSUE INVOLVED. THEREFORE, RESPECTFULLY FOLLOWING THE DE CISIONS OF THE HONBLE ITAT IN THE AFOREMENTIONED CASE, THE A.O. I S DIRECTED TO ACCEPT THE INCOME AS INCOME FROM CAPITAL GAINS. WIT H THIS DECISION, ALL THE GROUNDS REPRODUCED ON PAGES 2 TO 3 ANTE STA ND ADJUDICATED. 6. AT THE OUTSET, THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER DATE D 19.05.2008 OF I.T.A.T. IN THE CASE OF SMT.ANJU BANSAL IN ITA NO.478/AGR/2007. TH E CIT(A) RELIED UPON THE SAID ORDER OF THE I.T.A.T. AS FACTS ARE IDENTICAL. ITA NO.200/AGR/2011 & CO NO.39/AGR/2011 A.Y.2001-02 6 7. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, RELIED UPON THE ORDER OF ASSESSING OFFICER AND SUBMITTED THAT THE FACTS OF T HE CASE OF SMT. ANJU BANSAL WHICH HAS BEEN DECIDED BY I.T.A.T. IN ITA NO.478/AG R/2007 (SUPRA) IS DISTINGUISHABLE ON FACTS. HE FURTHER SUBMITTED THA T THE REVENUE HAS TAKEN THESE SPECIFIC GROUND NOS. 2 & 3 IN THE APPEAL. 8. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. IT HAS BEEN NOTICED THAT THE ASSESSING OFFICER MADE OU T THE CASE ON THE BASIS OF ENQUIRY THAT THE TRANSACTION WAS BOGUS TRANSACTION. SUCH TYPE OF TRANSACTION PERTAINING TO TWO ASSESSMENT YEARS I.E. ASSESSMENT YEAR UNDER CONSIDERATION 2001-02 & 2002-03, THE REVENUE OBJECTED TO THE FIND ING OF THE CIT(A) THAT THE CIT(A) IS NOT CORRECT IN FOLLOWING THE ORDER OF I.T .A.T. IN THE CASE OF SMT. ANJU BANSAL AS THE FACTS OF THE CASE UNDER CONSIDERATION ARE DIFFERENT. WE NOTICE THAT THE CIT(A) HAS SIMPLY RELIED UPON THE SUBMISSION OF THE ASSESSEE AND WITHOUT DISCUSSING THE FACTS HOW THE FACTS OF THE CASE UNDE R CONSIDERATION IS SIMILAR TO THE FACTS OF THE CASE OF SMT. ANJU BANSAL WHICH HAS BEE N DECIDED BY I.T.A.T. ORDER OF CIT(A) IS NOT IN ACCORDANCE WITH SECTION 250(6) OF THE INCOME TAX ACT, 1961 WHICH REQUIRES THAT THE CIT(A) SHOULD STATE THE POI NTS FOR DETERMINATION, THE DECISION THEREON AND REASONS FOR THE DECISIONS IN T HE ORDER. SINCE THE ORDER OF THE CIT(A) IS NOT IN ACCORDANCE WITH SECTION 250(6) OF THE ACT, WE, THEREFORE, THINK IT ITA NO.200/AGR/2011 & CO NO.39/AGR/2011 A.Y.2001-02 7 PROPER TO SEND BACK THIS ISSUE TO THE FILE OF CIT(A ) WITH THE DIRECTION TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER RECORDING COMPLETE FACTS OF THE CASE UNDER CONSIDERATION AND FACTS OF THE CASE OF I.T.A. T. ON WHICH IF THE CIT(A) WANTS TO RELY UPON. THE CIT(A) WILL DECIDE THE ISSUE AFT ER PROVIDING OPPORTUNITY OF HEARING TO BOTH THE SIDES. 9. IN THE RESULT, APPEAL FILED BY THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 13.04.2012) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 13 TH APRIL, 2012 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT RESPONDENT CIT CONCERNED CIT (APPEALS) CONCERNED D.R., ITAT AGRA BENCH, AGRA GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY