Anil Modi, Chennai V. ITO, Non Corporate Ward 11(1, Chennai

ITA 2261/CHNY/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7395 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 15-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SASI KUMAR
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2260/CHNY/2017 ( )( / ASSESSMENT YEAR : 2014-15 SMT. SUMAN MODI, 147, BROADWAY, GEORGE TOWN, CHENNAI - 600 001. PAN : BKRPS 2263 P V. THE INCOME TAX OFFICER, NON CORPORATE WARD 12(4), CHENNAI - 600 006. (+,/ APPELLANT) (-.+,/ RESPONDENT) ./ ITA NO.2261/CHNY/2017 ( )( / ASSESSMENT YEAR : 2014-15 SHRI ANIL MODI, 147, BROADWAY, GEORGE TOWN, CHENNAI - 600 001. PAN : ACOPA 8892 N V. THE INCOME TAX OFFICER, NON CORPORATE WARD 11(1), CHENNAI - 600 006. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANTS BY : SHRI ANANDD BABUNATH, CA -.+, / 0 / RESPONDENT BY : SHRI A. SASIKUMAR, JCIT 1 / 2% / DATE OF HEARING : 04.07.2018 3') / 2% / DATE OF PRONOUNCEMENT : 24.07.2018 2 I.T.A. NO.2260/CHNY/17 I.T.A. NO.2261/CHNY/17 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: BOTH THE APPEALS OF THE TWO INDEPENDENT ASSESSEE S ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE COMMI SSIONER OF INCOME TAX (APPEALS) -13, CHENNAI, AND PERTAIN TO A SSESSMENT YEAR 2014-15. 2. SHRI ANANDD BABUNATH, THE LD. REPRESENTATIVE FOR THE ASSESSEES, SUBMITTED THAT THE ASSESSING OFFICER FOU ND A CREDIT OF 75,29,384/- IN THE BOOKS OF ACCOUNT IN THE CASE OF THE ASSESSEE SMT SUMAN MODI AND 77,41,463 IN THE CASE OF THE ASSESSEE SHRI ANIL MODI. ACCORDING TO THE LD. REPRESENTATIVE, EA CH ASSESSEE HAS PURCHASED SHARES OF KAILAS AUTO FINANCE LTD. FOR 2 LAKHS AND THE SAME WERE SOLD AND THE PROFIT WAS DEPOSITED IN THE ACCOUNT. ACCORDING TO THE LD. REPRESENTATIVE, THE SHARES WER E PURCHASED THROUGH STOCK EXCHANGE. THE ASSESSEES HAVE FILED C OVER NOTE AND OTHER MATERIAL TO SUBSTANTIATE THAT THE SHARES WERE PURCHASED THROUGH STOCK EXCHANGE. HOWEVER, THE ASSESSING OFF ICER CONCLUDED THAT THE STOCKS WERE NOT PURCHASED THROUG H STOCK MARKET. THE ASSESSING OFFICER HAS NOT EXAMINED THE MATERIAL FILED BY THE ASSESSEE. MOREOVER, ACCORDING TO THE LD. RE PRESENTATIVE, THE 3 I.T.A. NO.2260/CHNY/17 I.T.A. NO.2261/CHNY/17 STATEMENT RECORDED FROM VARIOUS PERSONS INCLUDING T HAT OF SHRI SUNIL DOKANIA, WAS NOT FURNISHED TO THE ASSESSEES. IN TH E ABSENCE OF ANY MATERIAL, ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSING OFFICER HAS COME TO A WRONG CONCLUSION THAT THERE W AS UNEXPLAINED DEPOSIT OF 75,29,384/- AND 77,41,463/- RESPECTIVELY, WHICH WERE CONFIRMED BY THE CIT(APPEALS). 3. WE HEARD SHRI A. SASIKUMAR, THE LD. DEPARTMENTAL REPRESENTATIVE, ALSO. ACCORDING TO THE LD. D.R., T HE ASSESSING OFFICER FOUND THAT THE TRANSACTION WAS NOT CARRIED OUT THROUGH ANY STOCK EXCHANGE. MOREOVER, BYPASSING THE TRADING P ROCESS OF STOCK EXCHANGE, THE ASSESSEES ENTERED INTO TRANSACTION. ACCORDING TO THE LD. D.R., THE SO-CALLED BILLS / VOUCHERS FILED BY T HE ASSESSEES ARE ONLY INTERNAL ONE. MOREOVER, THE ASSESSEES HAVE NO T DECLARED INVESTMENT IN THE SHARES OF KAILAS AUTO FINANCE LTD . ACCORDING TO THE LD. REPRESENTATIVE, EACH ASSESSEE, IN FACT, INV ESTED 2 LAKHS IN THE SHARES OF KAILAS AUTO FINANCE LTD. ULTIMATELY, M/S KAILAS AUTO FINANCE LTD. MERGED WITH ANOTHER COMPANY. SHRI SUN IL DOKANIA WAS EXAMINED AND HE ADMITTED THAT HE WAS PROVIDING THE ACCOMMODATION ENTRY IN THE FORM OF SHARE CAPITAL, S HARE PREMIUM, ETC. THE LD. D.R. FURTHER SUBMITTED THAT THE ASSES SEES NEVER ASKED 4 I.T.A. NO.2260/CHNY/17 I.T.A. NO.2261/CHNY/17 FOR COPIES OF STATEMENT AT ANY POINT OF PROCEEDING. MOREOVER, THE ASSESSEES KNOW VERY WELL ABOUT THE STATEMENT OF SHR I SUNIL DOKANIA WITH WHOM THE ASSESSEES HAD TRANSACTION. T HEREFORE, ACCORDING TO THE LD. D.R., NON-FURNISHING OF STATEM ENT WOULD NOT VITIATE THE PROCEEDING. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ENTIRE ASSESSMENT WAS BASED ON THE STATEMENT RECORD ED FROM SHRI SUNIL DOKANIA AND OTHERS. IT IS ALSO NOT IN DISPUT E THAT COPIES OF SUCH STATEMENTS WERE NOT FURNISHED TO THE ASSESSEES . THE CONTENTION OF THE REVENUE APPEARS TO BE THAT THE AS SESSEES NEVER ASKED FOR COPIES OF STATEMENT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHETHER THE ASSESSEES ASKED FOR COPY O F STATEMENT OR NOT, IT IS A BOUNDEN DUTY OF THE REVENUE TO FURNISH COPY OF SUCH STATEMENT WHEN IT IS A BASIS FOR MAKING ASSESSMENT. THE ASSESSMENT PROCEEDING BEING A JUDICIAL PROCEEDING, THE ASSESSEES SHOULD BE PUT ON NOTICE OF ALL THE MATERIALS AGAINS T THEM BEFORE PASSING ANY ORDER. SINCE SUCH AN EXERCISE WAS NOT DONE BY THE REVENUE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED. ACCORDINGLY, ORDERS OF BO TH THE 5 I.T.A. NO.2260/CHNY/17 I.T.A. NO.2261/CHNY/17 AUTHORITIES BELOW IN THE CASE OF BOTH THE ASSESSEES ARE SET ASIDE AND THE ENTIRE ISSUE OF ADDITION MADE UNDER SECTION 68 OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AFTER FURNISHIN G COPIES OF STATEMENT RECORDED BY THE REVENUE TO THE ASSESSEES AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFT ER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEES. 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 24 TH JULY, 2018 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 24 TH JULY, 2018. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANTS 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-13, CHENNAI 4. PRINCIPAL CIT-8, CHENNAI-34 5. 7: -2 /DR 6. ;( < /GF.