ANITA SANJAY AGARWAL, MUMBAI V. Income Tax Officer 24(1)(2), Bandra Kurla Complex

ITA 2399/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6833 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-11-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 05-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure
• Section: 69; 2; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND MS. KAVITHA RAJAGOPAL, JM I TA N o. 239 9 / M u m/ 20 2 3 ( A ss e s s me n t Y e a r: 2014 -1 5 ) Anita Sanjay Agarwal 1601 Kanchan Gangaj P Road, Manish Nagar, Andheri West, Mumbai-400 053 V s. Income Tax Officer 24(1)(2) Mumbai – 400 051 P A N / G I R N o. AA D P A 5448 B (Assessee) : (Respondent) Assessee by : Shri Vimal Punmiya Respondent by : Shri Manoj Kumar Sinha D a te o f H e a r i n g : 13.11.2023 D ate of P ro n ou n ce me n t : 14.11.2023 O R D E R Per Kavitha Rajagopal, J M: This appeal has been filed by the assessee, challenging the order of the learned Commissioner of Income Tax (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'), pertaining to the Assessment Year (‘A.Y.’ for short) 2014-15. 2. The assessee has challenged the addition made towards unexplained cash credit u/s. 68 of the Act and unexplained expenditure u/s. 69 of the Act along with the other consequential grounds. 3. The brief facts are that the assessee is an individual and had filed her return of income declaring total income at Rs.8,18,640/-. The assessee’s case was selected for scrutiny and the assessment order dated 28.12.2016 was passed by the ld. Assessing 2 ITA No. 2 3 9 9 / M u m / 2 0 2 3 ( A . Y . 2 0 1 4 - 1 5 ) Anita Sanjay Agarwal vs. ITO Officer ('A.O.' for short) u/s. 143(3) of the Act by determining the total income at Rs.50,10,740/- after making an addition of Rs.40,70,000/- towards long term capital gain alleged to be the bogus transaction and Rs.1,22,100/- towards commission @ 3% of the long term capital gain as unexplained expenditure u/s. 69 of the Act. 4. Aggrieved the assessee was in appeal before the ld. CIT(A) who then upheld the addition made by the ld. A.O. on the ground that the assessee has failed to furnish the documentary evidences to support her claim. 5. The assessee is in appeal before us challenging the order of the ld. CIT(A). 6. The learned Authorised Representative ('ld. AR' for short) for the assessee contended that the ld. CIT(A) has failed to consider the documentary evidence filed by the assessee in support of her claim. The ld. AR further stated that the assessee has discharged the initial onus casted upon her to prove the genuineness of the transaction but the lower authorities have failed to consider the same. The ld. AR prayed that the issues be remanded back to the file of the ld. CIT(A) for considering the submission of the assessee and the documentary evidences filed in support of the assessee’s claim and to adjudicate the same afresh on the merits of the case. 7. The learned Departmental Representative ('ld.DR' for short), on the other hand, controverted the said facts and vehemently opposed for remanding the issue back to the file of the ld. CIT(A). The ld. DR further stated that the assessee was given sufficient opportunity before the lower authorities during which she has failed to substantiate her claim. The ld. DR relied on the orders of the lower authorities. 3 ITA No. 2 3 9 9 / M u m / 2 0 2 3 ( A . Y . 2 0 1 4 - 1 5 ) Anita Sanjay Agarwal vs. ITO 8. We have heard the rival submissions and perused the materials available on record. It is observed that the ld. A.O. based on the information available on Actionable Information Monitoring System (AIMS), as per the investigation conducted by the Kolkata Investigation Directorate that the assessee was said to be one of the beneficiaries of accommodation entry by way of bogus LTCG/STCG. The assessee has declared income from house property, business, capital gains and income from other sources and had declared gain of Rs.39,51,811/- on sale of shares during the year under consideration which is exempted u/s. 10(38) of the Act. The ld. A.O. held the same to be penny stock and made an addition on the same. The ld. CIT(A) upheld the addition on lack of evidence in support of the assessee’s claim. 9. From the above observation, we deem it fit to provide the assessee with one last opportunity to present her case before the first appellate authority on the principles of natural justice. The ld. CIT(A) is directed to decide the issue based on the submission and the documentary evidence furnished by the assessee in support of her claim. We thereby remand these issues back to the file of the ld. CIT(A) for fresh adjudication. 10. In the result, the appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the open court on 14.11.2023 Sd/- Sd/- (Prashant Maharishi) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : 14.11.2023 Roshani , Sr. PS 4 ITA No. 2 3 9 9 / M u m / 2 0 2 3 ( A . Y . 2 0 1 4 - 1 5 ) Anita Sanjay Agarwal vs. ITO Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT - concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai