Smt Gopinath Rao Vijayalakshmi , Bangalore V. The Income Tax Officer Ward-7(2)(1), Bangalore

ITA 2203/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6041 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 17-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARUPPUSAMY S R
• Assessee Lawyers: H GURUSWAMY ITP
• Keywords: Gift; Business income; Opportunity of being heard; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE T RIBUNAL BANGALORE BENCH SMC-B, BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNANT MEMBER ITA NOS. 2203 TO 2205 (BANG) 2018 (ASSESSMENT YEARS : 2010 11 TO 2012 2013) SMT. GOPINATH RAO VIJAYALAKSHMI, APPELLANT NO. 21, ASHIRVADA, 1 ST CROSS, 1 ST MAIN, VITTAL NAGAR LAST BUS STOP, ,2 ND STAGE, KUMARASWAMY LAYOUT, BANGALORE 560078. PAN. AESPV1202M VS THE ITO, WARD 7 (2) (1), BANGALORE. RESPONDENT ASSESSEE BY : SHRI H. GURUSWAMY, I. T. P. REVENUE BY : SHRI KARUPPUSAMY S. R. , ADDL. CIT ( DR) DATE OF HEARING : 31-07-2018 DATE OF PRONOUNCEMENT : 0 3-08-2018 O R D E R PER A. K. GARODIA, A.M.: THESE THREE APPEALS ARE FILED BY THE ASSESSEE AND T HESE ARE DIRECTED AGAINST A COMBINED ORDER OF CIT (A) 7 BANGALORE DATED 27.04 .2018 FOR A. Y. 2010 11 TO 2012 - 13. THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENC E. 2. SEVERAL IDENTICAL GROUNDS ARE RAISED BY THE ASSE SSEE IN THESE THREE APPEALS BUT ONLY TWO COMMON GRIEVANCES ARE THERE. FIRST GRIEVAN CE IN ALL THREE YEARS IS THIS THAT THE CIT (A) WAS NOT JUSTIFIED IN SUSTAINING TH E ORDER OF AO REGARDING ESTIMATION OF THE INCOME OF THE ASSESSEE TO THE EXT ENT OF 1 % OF THE TURNOVER ALTHOUGH HE HAS HELD THAT SUCH INCOME SHOULD BE ASS ESSED AS BUSINESS INCOME AS AGAINST STCG DONE BY THE AO. THE SECOND C OMMON GRIEVANCE IS REGARDING CONFIRMING THE ADDITION MADE BY THE AO U/ S 68 IN RESPECT OF CASH DEPOSITED IN BANK RS. 12.47 LACS IN A. Y. 2010 11 , RS. 2 LACS IN A. Y. 2011 12 AND RS. 10.24 LACS IN A. Y. 2012 13. ITA NOS. 2203 TO 2205(BANG)2018 2 3. LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE AO HAS RESORTED TO ESTIMATE THE INCOME @ 4% IN A. Y. 2010 11 BY STATING THIS IN P ARA NO 6 OF THE ASSESSMENT ORDER FOR THAT YEAR THAT VERIFICATION IS NOT POSSIB LE IN ONE DAY. HE FURTHER SUBMITTED THAT IN REMAINING TWO YEARS, THE AO HAS G IVEN SAME REASONING FOR ESTIMATION THE INCOME BUT IN THOSE TWO YEARS, HE HA S ESTIMATED THE INCOME @ 1% OF THE TURNOVER. HE SUBMITTED THAT YEAR WISE DET AILS OF PURCHASE AND SALE IS AVAILABLE ON PAGE 7 OF THE PAPER BOOK. HE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE AO OR CIT (A) FOR FRESH DECISION ON THE BASIS OF ACTUAL PURCHASE AND SALE VALUE. HE FURTHER SUBMITTED THAT SUMMARY O F SCRIP WISE QUANTITY AND VALUE OF PURCHASE & SALE IS AVAILABLE IN PAPER BOOK FOR A. Y. 2010 11 ON PAGES 21 TO 24, FOR A. Y. 2011 12 ON PAGES 62 TO 66 AND FOR A. Y. 2012 13 ON PAGES 81 TO 88. LEARNED DR OF THE REVENUE SUPPOR TED THE ORDER OF CIT (A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORDS. I FIND FORCE IN THE SUBMISSI ONS OF THE LEARNED AR OF THE ASSESSEE THAT BUSINESS INCOME ON PURCHASE & SALE OF SHARES OF SHARES SHOULD BE WORKED OUT ON THE BASIS OF SCRIP WISE QUANTITY A ND VALUE OF PURCHASE & SALES FOR EACH OF THESE YEARS. HENCE, I SET ASIDE THE ORD ER OF CIT (A) ON THIS ISSUE AND RESTORE THE MATTER BACK TO HIS FILE FOR A FRESH DECISION AS PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IF CONSIDERED NECESSARY, REMAND REPORT FROM THE AO MAY ALSO BE OBTAINED. 5. REGARDING THE SECOND ISSUE, LEARNED AR OF THE AS SESSEE SUBMITTED THAT GIFT DECLARATIONS OF VARIOUS DONORS FOR A. Y. 2010 11 ARE AVAILABLE ON PAGES 47 & 48 OF THE PAPER BOOK FOR RS. 5 LACS & RS. 3.31 LACS RESPECTIVELY AND THE SAME FOR A. Y. 2012 13 IS AVAILABLE ON PAGE 46 OF THE PAPER BOOK FOR RS.10 LACS. HE ALSO SUBMITTED THAT AS PER THE WRITTEN SUBMISSIO NS OF THE ASSESSEE REPRODUCED BY CIT (A) ON PAGE NO. 5 OF HIS ORDER, I T WAS SUBMITTED BY THE ASSESSEE THAT IN A. Y. 2010 11, THE ASSESSEE HAS WITHDRAWN CASH FROM AXIS BANK RS. 4,23,700/- TWICE AND IN THIS MANNER, THE A SSESSEE HAS SHOWN SOURCES OF RS. 14.55 LACS IN THAT YEAR AS AGAINST CASH DEPO SIT IN THAT YEAR OF RS. 12.47 LACS. REGARDING A. Y. 2011 12, HE SUBMITTED THAT NO DETAIL OF CASH DEPOSIT WITH NAME OF BANK, DATE & AMOUNT OF DEPOSIT ETC. WA S PROVIDED TO THE ASSESSEE AND HENCE, THE CASH DEPOSIT IN THIS YEAR, IF ANY, C OULD NOT BE EXPLAINED BY THE ITA NOS. 2203 TO 2205(BANG)2018 3 ASSESSEE. FOR A. Y. 2013 14, THE CASH DEPOSIT ALL EGED IS RS. 10.24 LACS AND THE ASSESSEE HAS FURNISHED GIFT DECLARATION IN THIS YEAR OF RS. 10 LACS ON PAGE 46 OF THE PAPER BOOK. HE SUBMITTED THAT ON THIS ISS UE ALSO, THE MATTER MAY BE RESTORED TO THE AO OR CIT (A) FOR FRESH DECISION AF TER VERIFYING THESE CONTENTIONS ABOUT GIFT ETC. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CIT (A). 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORDS. I FIND FORCE IN THE SUBMISSI ONS OF THE LEARNED AR OF THE ASSESSEE THAT REGARDING SOURCE OF CASH DEPOSIT IN B ANK, THE ASSESSEES CLAIM ABOUT GIFT AND CASH WITHDRAWAL FROM BANK ETC. SHOUL D BE EXAMINED. HENCE, ON THIS ISSUE ALSO, I SET ASIDE THE ORDER OF CIT (A) A ND RESTORE THE MATTER BACK TO HIS FILE FOR A FRESH DECISION AS PER ABOVE DISCUSSI ON AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IF CONSID ERED NECESSARY, REMAND REPORT FROM THE AO MAY ALSO BE OBTAINED. 7. IN THE RESULT, ALL THREE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DA TE MENTIONED ON THE CAPTION PAGE. SD/- (A. K. GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED: 03.08.2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.