Mr. Yogesh Kumar, Gurgaon V. ITO, Gurgaon

ITA 2411/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5405 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 24-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Keywords: Opportunity of being heard; Transactions in derivatives

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES E : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA.NO.2411/DEL./2015 ASSESSMENT YEAR 2010-2011 SHRI YOGESH KUMAR, GURGAON. C/O. GAA & CO. C.A. SHOP NO.226, DEEP PLAZA COMPLEX, OPP. DIST. COURT, GURGAON. HARYANA. PIN 122 001 PAN ACFPK0513M VS THE INCOME TAX OFFICER, WARD-1(3), GURGAON. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI CHARITRA GUPTA, C.A. FOR REVENUE : SHRI S.R. SENAPATI, SR. D.R. DATE OF HEARING : 25 .0 4 .2018 DATE OF PRONOUNCEMENT : 26 .04.2018 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-1, GURGAON, DATED 30 TH MARCH, 2015, FOR THE A.Y. 2010-2011, CHALLENGING THE ADDITION OF RS.4,77,500/- BEING 8% OF TOTAL TRANSACTION IN MULT I COMMODITY EXCHANGE. 2 ITA.NO.2411/DEL./2015 SHRI YOGESH KUMAR, GURGAON. 2. THE FACTS OF THE CASE ARE THAT A.O. RECEIVED CI B INFORMATION THAT ASSESSEE HAD UNDERTAKEN TRANSACTIO N AMOUNTING TO RS.63,60,300/- IN MULTI COMMODITY EXCH ANGE. SINCE, NO EVIDENCE COULD BE FILED BY THE ASSESSEE, A.O. ESTIMATED PROFIT @ 8% OF THE TOTAL RECEIPTS RESULTING IN ESTI MATION OF INCOME FROM ASSESSEES TRANSACTIONS IN MULTI COMMOD ITY EXCHANGE AT RS.5,08,824/-, AFTER REDUCING FROM THIS AMOUNT, THE AMOUNT OF RS.31,324/- ALREADY SHOWN BY ASSESSEE , A.O. MADE THE ADDITION OF RS.4,77,500/-. 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND FILED COPY OF THE STATEMENT OF ACCOUNT O F HIS COMMODITY TRANSACTION GIVEN BY M/S. ARCADIA SHARE A ND STOCK BROKER PVT. LTD., AND IT WAS EXPLAINED THAT FROM TH IS STATEMENT IT IS CLEAR THAT TOTAL TRANSACTIONS ARE OF RS.90,63 8.78 (DEBIT) AND RS.1,21,962.84 (CREDIT), IN THE YEAR UNDER REFERENC E. THE ASSESSEE EARNED PROFIT OF RS.31,324/- AND SAME HAVE BEEN OFFERED FOR TAXATION. THE ADDITION IS MERELY ON PRE SUMPTION. THE AFFIDAVIT OF ASSESSEE WAS ALSO FILED. THE LD. CIT(A ) DID NOT ACCEPT 3 ITA.NO.2411/DEL./2015 SHRI YOGESH KUMAR, GURGAON. THE CONTENTION OF ASSESSEE BECAUSE CIB INFORMATION PROVIDES THAT ASSESSEE CONDUCTED TRANSACTION OF A HIGHER AMO UNT. THE ASSESSEE DID NOT GIVE ANY EVIDENCE TO EXPLAIN THIS ISSUE AND ASSESSEE DID NOT DISCLOSE THE ENTIRE AMOUNT IN THE INCOME AND ACCRUING TO HIM. THIS GROUND WAS ACCORDINGLY DISMIS SED. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT TH E LEVEL OF THE A.O. THE ASSESSEE IN THE PAPER BOOK FILED COPY OF T HE ACCOUNT WITH STOCK BROKER M/S. ARCADIA SHARE AND STOCK BROK ER PVT. LTD., AT NSE AND COPY OF ASSESSEES ACCOUNT WITH TH E BROKER AND COPY OF THE AIR TRANSACTION SUPPLIED TO THE ASSESSE E WITH REMAND REPORT AND AFFIDAVIT OF THE ASSESSEE. LEARNE D COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE HAS EARNED PROFIT OF RS.31,324/- ONLY ON CAPITAL GAIN. THEREFORE, APPLIC ATION OF PROFIT RATE OF 8% IS NOT JUSTIFIED. THE A.O. HOWEVER, SPEC IFICALLY MENTIONED IN THE ASSESSMENT ORDER THAT CIB INFORMAT ION PROVIDES THAT ASSESSEE CONDUCTED THE TRANSACTION TO TALING TO RS.63,60,300/-. ASSESSEE DID NOT FURNISH ANY EVIDEN CE BEFORE 4 ITA.NO.2411/DEL./2015 SHRI YOGESH KUMAR, GURGAON. A.O. AT THE ASSESSMENT STAGE THOUGH THE ASSESSEE FU RNISHED DETAILS AND THE AFFIDAVIT AT APPELLATE STAGE BUT TH E COPY OF THE AFFIDAVIT SHOWS IT WAS NOT ATTESTED AS PER LAW. THE ASSESSEE HAS NOT EXPLAINED THAT INFORMATION RECEIVED BY THE A.O. FROM CIB WAS INCORRECT. HOWEVER, ASSESSEE HAS RIGHTLY CONTEN DED THAT IN CASE OF CAPITAL GAIN THE PROFIT RATE OF 8% SHOULD N OT BE APPLIED. THE A.O. IN THE REMAND REPORT ALSO DID NOT DISCUSS THE ISSUE IN DETAIL ON FURNISHING THE DOCUMENTS BY THE ASSESSEE AT THE APPELLATE STAGE. THEREFORE, THE ISSUE REQUIRES FACT UAL VERIFICATION ON THE FACE OF CONTRADICTORY INFORMATION AVAILABLE ON RECORD I.E., INFORMATION RECEIVED FROM CIB AND THE DOCUMENTS FUR NISHED BY THE ASSESSEE OF THE LESSER AMOUNT. LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF ITAT, MUMBAI BENC H IN THE CASE OF DCIT VS. YAHOO INDIA PVT. LTD., DATED 29 TH JANUARY, 2016, IN WHICH, EXCEPT AIR INFORMATION FURNISHED NO OTHER MATERIAL BEFORE A.O. TO MAKE THE ADDITION, THEREFOR E, THE ORDER OF THE LD. CIT(A) WAS CONFIRMED. FURTHER, THE ASSES SEE IN THE PAPER BOOK HAS SUBMITTED SEVERAL DOCUMENTS AND DOCU MENTS SUPPLIED TO HIM AT ASSESSMENT STAGE WHICH HAVE NOT BEEN 5 ITA.NO.2411/DEL./2015 SHRI YOGESH KUMAR, GURGAON. EXPLAINED BY ASSESSEE BEFORE A.O, THEREFORE, FACTUA L VERIFICATION OF THE FACTS IS REQUIRED. IN THESE CIRCUMSTANCES, I T WOULD BE APPROPRIATE TO RESTORE THE MATTER TO THE FILE OF A. O. FOR RECONSIDERATION OF THE ISSUE. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS IS SUE TO THE FILE OF A.O. WITH A DIRECTION TO RE-DECIDE THIS ISSUE AS PER LAW, BY GIVING THE FACTUAL FINDINGS ON THE POINTS RAISED BY THE ASSESSEE. A.O. SHALL GIVE REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (O.P. KANT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 26 TH APRIL, 2018 VBP/- 6 ITA.NO.2411/DEL./2015 SHRI YOGESH KUMAR, GURGAON. COPY TO 1. THE APP ELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT E BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.