Shri Ratankumar K. Bansal, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1, GANDHIDHAM

ITA 282/RJT/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9052 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N SONTAKKE
• Keywords: Opportunity of being heard; Transactions in derivatives; Source of fund
• Section: 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] LOZJH LOZJH LOZJH LOZJH EGKOHJ IZLKN] U;KF;D LNL; EGKOHJ IZLKN] U;KF;D LNL; EGKOHJ IZLKN] U;KF;D LNL; EGKOHJ IZLKN] U;KF;D LNL; ,OA ,OA ,OA ,OA VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG] YS[KK LNL; DS LE{KA ] YS[KK LNL; DS LE{KA ] YS[KK LNL; DS LE{KA ] YS[KK LNL; DS LE{KA (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ) VK;DJ VIHY LA VK;DJ VIHY LA VK;DJ VIHY LA VK;DJ VIHY LA- -- - /ITA. NO: 282/RJT/2014 ( FU/KKZJ.K OKZ FU/KKZJ.K OKZ FU/KKZJ.K OKZ FU/KKZJ.K OKZ /ASSESSMENT YEAR: 2009-10) SHRI RATANKUMAR K. BANSAL, GANDHIDHAM / VS. INCOME TAX OFFICER, WARD-1, GANDHIDHAM ./ ./ PAN/GIR NO. : AFYPB 3022 Q ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KALPESH DOSHI, A.R. / RESPONDENT BY : SHRI A. N. SONTAKKE, SR. D.R. / DATE OF HEARING 01/05/2017 !'# / DATE OF PRONOUNCEMENT 17/05/2017 $% / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAIN ST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II, RAJKOT, DAT ED 31/03/2014 FOR THE ASSESSMENT YEAR (AY) 2009-10. 2. ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPE ALS: I. THAT, THE LEARNED CIT(A) HAS PASSED THE ORDER WI THOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. II. THAT, THE LEARNED CIT(A) HAS CALLED FOR ADDITIO NAL DETAILS AND PASSED THE ORDER ON THE GROUND THAT SUCH DETAILS AR E NOT ITA NO.282/RJT/ 2014 SHRI RATANKUMAR K. BANSAL VS. ITO ASST.YEAR 2009-10 - 2 - PROVIDED, HOWEVER NO PROPER TIME IS GIVEN TO COLLEC T SUCH DETAILS FROM THE BANK. THEREFORE, THE ORDER OF LEARNED CIT( A) IS BAD-IN- LAW. III. THAT, THE LEARNED CIT(A) HAS WRONGLY CONFIRMED THE ADDITION OF RS.23,56,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOS ITS IN BANK ACCOUNT U/S. 69 OF THE IT ACT, 1961. IV. THAT, THE FINDINGS OF LEARNED CIT(A) AS STATED ABOVE ARE NOT JUSTIFIED AND REQUIRED TO BE DELETED. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- THE APPELLANT-INDIVIDUAL DERIVED MOBILE COMMISSION INCOME AND SHARE TRADING. THE RETURN OF INCOME WAS FILED ON 31/03/20 10 DECLARING THEREIN TOTAL INCOME AT RS.1,38,660/-. THE APPELLANT HAD OF FERED INCOME FROM STD/PCO BOOTH AND MOBILE COMMISSION INCOME. SUBSEQU ENTLY, AIR INFORMATION WAS RECEIVED REGARDING CASH DEPOSIT BY THE APPELLANT OF RS.36,96,000/- IN KOTAK MAHINDRA BANK SAVINGS BANK ACCOUNT NO.08220120009111 ON VARIOUS DATES. THERE WERE WITH DRAWALS ALSO TO THE TUNE OF RS.13,40,000/-. THE AO ALSO GATHERED FU RTHER INFORMATION FROM KOTAK MAHINDRA BANK BY WAY OF NOTICE U/S.133(6 ). SEVERAL INSTRUMENTS TO THE TUNE OF RS.24,37,000/- WERE ALSO FOUND CREDITED IN THE SAID BANK ACCOUNT FOR WHICH THE AR EXPLAINED THAT T HEY WERE THE MATURITY AMOUNT OF SWEEP IN/OUT FDS OF KOTAK MAHIND RA ACCOUNT. THE INSTRUMENTS WERE ALSO PART OF THE ONLINE MONEY TRAN SFER FROM THE DEMAT ACCOUNT HELD WITH KOTAK SECURITIES. THE CASH DEPOSITS WERE SUBSEQUENTLY UTILIZED FROM INVESTMENTS IN SHARES TH ROUGH KOTAK SECURITIES. THE AO HELD THAT THE SUM OF RS.23,56,00 0/- HAS BEEN ITA NO.282/RJT/ 2014 SHRI RATANKUMAR K. BANSAL VS. ITO ASST.YEAR 2009-10 - 3 - DEPOSITED IN THE KOTAK MAHINDRA BANK SAVINGS ACCOUN T FROM UNEXPLAINED SOURCES OF INCOME AND THEREFORE HE MADE ADDITION OF RS.23,56,000/- U/S.69 OF THE ACT. 4. AGGRIEVED AGAINST THE ORDER OF THE AO, THE ASSES SEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A ) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSION GIVEN B Y THE APPELLANT, ASSESSMENT ORDER AND THE REMAND REPORT BY THE A.O. THE CLAIM REGARDING LOSS ON ACCOUNT OF F&O TRANSACTIONS WAS N OT MADE BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDIN GS. IT HAS MADE FOR THE FIRST TIME DURING THE APPELLATE PROCEEDINGS. TH E A.O'S OPINION IN REJECTING THIS CLAIM BASED ON THE DECISION OF THE H ON'BLE APEX COURT IN CASE OF GOETZ INDIA (SUPRA) IS VALID. HOWEVER, AS P ER SUBSEQUENT JUDICIAL PRONOUNCEMENTS, SUCH A CLAIM CAN BE ENTERT AINED BY THE APPELLATE AUTHORITIES. THUS, IN MY OPINION, THE APP ELLANT'S CLAIM CAN BE PRIMA FACIE ADMITTED. HOWEVER, IN ORDER TO CHECK TH E VERACITY OF THE CLAIM MADE BY THE APPELLANT, IT WAS ASKED TO SUBMIT A CERTIFIED COPY OF THE F&O TRANSACTIONS FROM KOTAK SECURITIES. WHAT HA S BEEN SUBMITTED BEFORE THE UNDERSIGNED IS ONLY A XEROX COPY OF BACK OFFICE SUPPORT SYSTEM DOWNLOADED FROM THE COMPUTER. IT IS MENTIONE D IN THE REPORT ITSELF BY WAY OF DISCLAIMER THAT THE INFORMATION CO NTAINED HEREIN IS NOT A COMPLETE ANALYSIS OF EVERY TRANSACTION ENTERED BY T HE CLIENT. ACCORDINGLY, NO REPRESENTATION OR WARRANTY EXPRESSE D OR IMPLIED IS MADE AS TO THE FAIRNESS, ACCURACY, COMPLETENESS OR CORRECTNESS OF THE INFORMATION CONTAINED IN THIS BACK OFFICE SUPPORT S YSTEM. THE APPELLANT WAS REPEATEDLY ASKED TO PRODUCE CERTIFIED COPY FROM KOTAK SECURITY TO SUBSTANTIATE ITS CLAIM REGARDING THE F&O LOSS. HOWE VER, DESPITE OPPORTUNITIES PROVIDED ON 13/2/2014, 19/2/14, 11/ 3/14, 19/3/14, THE APPELLANT HAS NOT PRODUCED ANY DETAILS. ON 24/3/ 2014, IT WAS CONTENDED BY THE APPELLANT'S AR THAT THE DETAILS WE RE NOT FORTHCOMING AND FURTHER ADJOURNMENT FOR THREE WEEK WAS SOUGHT. THIS AMOUNTS TO NOTHING BUT DILATORY TACTICS ON THE PART OF THE APP ELLANT WHICH ARE VERY ITA NO.282/RJT/ 2014 SHRI RATANKUMAR K. BANSAL VS. ITO ASST.YEAR 2009-10 - 4 - EVIDENT RIGHT FROM THE BEGINNING, I.E. THE ASSESSME NT PROCEEDINGS AND THE REMAND PROCEEDINGS. AS NO EVIDENCE HAS BEEN PRO DUCED BY THE APPELLANT TO PROVE THE VERACITY OF THE LOSS IN F&O TRANSACTIONS, THE SAME IS HELD AS UNSUBSTANTIATED AND THE APPELLANTS CLAIM OF SET OFF OF THIS LOSS AGAINST INCOME U/S. 69 IS HEREBY REJECTED . THIS GROUND OF APPEAL IS DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE IMPUGNED ORDER. WE HAVE NOTICED THAT THE ASSESSEE FAILED TO ATTEND BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT IS FURTHER OBSERVED THAT ASSESSEE HAS NOT FURNISHED ANY INFORMATION IN RESPO NSE TO SHOW CAUSE NOTICE ISSUED BY THE AO TO EXPLAIN THE CASH DEPOSIT AND OTHER DEPOSIT FOUND IN THE BANK ACCOUNT OF THE ASSESSEE MAINTAINE D WITH KOTAK MAHINDRA BANK AS PER THE AR INFORMATION. FURTHER, W E HAVE OBSERVED FROM THE FINDING OF THE LEARNED CIT(A) AS SUPRA IN THIS ORDER THAT THE ASSESSEE HAS FAILED TO PRODUCE THE REQUISITE DETAIL S BEFORE THE LEARNED CIT(A). DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LEARNED COUNSEL HAS FURNISHED A PAPER BOOK CONTAINI NG WRITTEN SUBMISSION, COPY OF IT RETURNS, COPY OF THE VOUCHER S OF THE F&O TRANSACTIONS, ETC. AFTER CONSIDERING THE ABOVE FACT S AND FINDINGS OF THE LEARNED CIT(A), WE FIND THAT THE APPEAL OF THE ASSE SSEE WAS DISMISSED BY THE LEARNED CIT(A) FOR NOT FURNISHING OF THE SUPPOR TING DETAILS TO SUBSTANTIATE HIS CLAIM. THEREFORE, IN THE INTEREST OF JUSTICE, WE CONSIDERED, IT WOULD BE APPROPRIATE TO RESTORE THIS MATTER TO T HE LEARNED CIT(A) TO DECIDE AS A FRESH AFTER EXAMINATION OF THE DETAILS FURNISHED BY THE ITA NO.282/RJT/ 2014 SHRI RATANKUMAR K. BANSAL VS. ITO ASST.YEAR 2009-10 - 5 - ASSESSEE IN SUPPORT OF HIS CLAIM. THE ASSESSEE IS A LSO DIRECTED TO FURNISH THE REQUISITE DETAILS BEFORE THE LEARNED CIT(A) WIT HOUT ANY FAILURE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 17/05/2017 SD/- SD/- VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG &' $ ( $ ) ()* $ ) ( AMARJIT SINGH ) ( MAHAVIR PR ASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 17/05/2017 PRITI YADAV, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , -. / / CONCERNED CIT 4. / () / THE CIT(A)-II, RAJKOT. 5. 012 **-. , -.# , '&$,$ / DR, ITAT, AHMEDABAD 6. 245 6 / GUARD FILE. / BY ORDER, 0 * //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !' #, / ITAT, AHMEDABAD TRUE COPY