Anil Kumar HUF, CHENNAI V. ITO, CHENNAI

ITA 2121/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7893 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 14-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAHADEVAN
• Assessee Lawyers: LAKSHMICHAND NAHATA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , !.. # $%, ' () BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.2121/MDS/2016 + ,+ / ASSESSMENT YEAR : 2009-10 SHRI ANIL KUMAR (HUF), 16/2, NARAYANA MUDALI LANE, SOWCARPET, CHENNAI - 600 079. PAN : AAIHA 7197 Q V. THE INCOME TAX OFFICER, NON-CORPORATE WARD 4(1), CHENNAI - 600 006. (.// APPELLANT) (01.// RESPONDENT) ./ 2 3 / APPELLANT BY : SH. LAKSHMICHAND NAHATA, FCA 01./ 2 3 / RESPONDENT BY : SHRI B. SAHADEVAN, JCIT # 2 4' / DATE OF HEARING : 04.01.2017 56, 2 4' / DATE OF PRONOUNCEMENT : 31.01.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 5, CHENN AI, DATED 09.06.2016 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2. SHRI LAKSHMICHAND NAHATA, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER MADE AN ADDITION OF 2 I.T.A. NO.2121/MDS/16 ` 9,49,569/- ON THE GROUND THAT THERE WAS A BOGUS PUR CHASE AND SALE OF SHARES AND THE ASSESSEE HAS INTRODUCED ITS OWN MONEY. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT THE E NTIRE ADDITION WAS MADE ON THE BASIS OF THE STATEMENT SAID TO BE RECOR DED FROM SHRI CHOKSI, DIRECTOR OF MAHASAGAR GROUP OF CONCERNS. A COPY OF THE STATEMENT OF SHRI CHOKSI WAS NOT FURNISHED TO THE A SSESSEE. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT THE PURCH ASE AND SALE OF SHARES ARE GENUINE TRANSACTIONS. REFERRING TO THE ORDER OF THE ASSESSING OFFICER, MORE PARTICULARLY PAGE 3, THE LD . REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER HERSELF OBSERV ED IN THE ASSESSMENT ORDER THAT IN THE NORMAL COURSE, THE ASS ESSEES CONTENTION CAN BE ACCEPTED. IF IT CAN BE ACCEPTED IN THE NORMAL COURSE, IT IS NOT KNOWN WHAT ARE THE EXCEPTIONAL CI RCUMSTANCES UNDER WHICH THE ASSESSING OFFICER CAN REJECT THE CL AIM OF THE ASSESSEE. THEREFORE, ACCORDING TO THE LD. REPRESEN TATIVE, THE CIT(APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE ADD ITION MADE BY THE ASSESSING OFFICER. 3. ON THE CONTRARY, SHRI B. SAHADEVAN, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT THE CIT(APPEALS) EXA MINED THE ISSUE AND FOUND THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE 3 I.T.A. NO.2121/MDS/16 TO PROVE THE PURCHASE AND SALE OF SHARES ON WHICH T HE LONG TERM CAPITAL GAIN OF ` 9,49,569/- WAS REPORTED. IN THE ABSENCE OF ANY EVIDENCE FOR PURCHASE AND SALE OF SHARES, THE ASSES SING OFFICER FOUND THAT THE ASSESSEE INTRODUCED HIS OWN MONEY. REFERRING TO THE ORDER OF THE CIT(APPEALS), MORE PARTICULARLY PA RA 6.1, THE LD. D.R. SUBMITTED THAT EVEN AFTER GIVING EIGHT OPPORTU NITIES BY THE CIT(APPEALS), THE ASSESSEE COULD NOT PRODUCE THE EV IDENCE, THEREFORE, THE CIT(APPEALS) HAS RIGHTLY CONFIRMED T HE ADDITION MADE BY THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER MADE AN ADDITION OF ` 9.49,569/- TOWARDS PURCHASE AND SALE OF SHARES. THE ASSESSING OFFICER HAS ALSO FOUND TH AT THE ASSESSEE PURCHASED SHARES ON 04.04.2007 AND 18.04.2007 AND T HE SAME WAS DEMATISED ON 16.08.2008. ON THE BASIS OF THE S TATEMENT SAID TO BE MADE FROM SHRI CHOKSI, DIRECTOR OF MAHASAGAR GROUP OF CONCERNS, THE ASSESSING OFFICER FOUND THAT THE ENTI RE TRANSACTION WAS NOT GENUINE. SHE ALSO FOUND THAT IT WAS ONLY A N ACCOMMODATION ENTRY AND THE ASSESSEE BROUGHT HIS OW N UNACCOUNTED MONEY IN THE GUISE OF LONG TERM CAPITAL GAIN. THE 4 I.T.A. NO.2121/MDS/16 ASSESSEE ALSO COULD NOT FILE ANY EVIDENCE BEFORE TH E CIT(APPEALS) TO SUBSTANTIATE THE CLAIM OF PURCHASE AND SALE OF S HARES. THEREFORE, THE CIT(APPEALS) CONFIRMED THE ADDITION OF ` 9,49,569/-. FROM THE MATERIAL AVAILABLE ON RECORD AND FROM THE ORDERS OF THE LOWER AUTHORITIES IT APPEARS THAT THE STATEMENT RECORDED FROM SHRI CHOKSI WAS NOT FURNISHED TO THE ASSESSEE. THIS TRIBUNAL I S OF THE CONSIDERED OPINION THAT WHEN THE ASSESSING OFFICER HAS MADE ADDITION ON THE BASIS OF THE STATEMENT SAID TO BE M ADE FROM SHRI CHOKSI, DIRECTOR OF MAHASAGAR GROUP OF CONCERNS, A COPY OF SUCH STATEMENT SHOULD HAVE BEEN FURNISHED TO THE ASSESSE E AND AN OPPORTUNITY MUST HAVE BEEN GIVEN TO THE ASSESSEE TO CONTRADICT THE SAME. SINCE SUCH AN EXERCISE WAS NOT DONE, THIS TR IBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECO NSIDERED. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES AR E SET ASIDE. THE ISSUE OF SALE AND PURCHASE OF SHARE IS REMITTED BAC K TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL FUR NISH A COPY OF THE STATEMENT SAID TO BE RECORDED FROM SHRI CHOKSI TO T HE ASSESSEE AND THEREAFTER DECIDE THE ISSUE AFRESH, IN ACCORDANCE W ITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 5 I.T.A. NO.2121/MDS/16 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 31 ST JANUARY, 2017 AT CHENNAI. SD/- SD/- ( ! . . # $% ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 8 /DATED, THE 31 ST JANUARY, 2017. KRI. 2 04$9 :9,4 /COPY TO: 1. ./ /APPELLANT 2. 01./ /RESPONDENT 3. # ;4 () /CIT(A)-5, CHENNAI-34 4. PRINCIPAL CIT-9, CHENNAI 5. 9< 04 /DR 6. !+ = /GF.