I.T.O.-1(1), Agra V. Smt. Era Khera, Agra

ITA 285/AGR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6978 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-06-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 17-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROHAN AGARWAL
• Keywords: Tax effect; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.285/AGR/2010 ASST. YEAR: 2002-03 INCOME TAX OFFICER 1(1), VS. SMT. ERA KHERA, AGRA. 6/6, GALIBPURA, AGRA. (PAN : ABRPK 3261 D). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD KUMAR, JR. D.R. RESPONDENT BY : SHRI ROHAN AGARWAL, ADVOCATE ORDER PER H.S. SIDHU, J.M. : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A)-I, AGRA DATED 26.03.2010 ON THE FOLLOWING GROUNDS :- 1. THAT THE LD. CIT -I, AGRA HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DELETING THE ADDITION OF ` 4,08,640/- + ` 2,500/- ( ` 10,03,562/-) MADE ON ACCOUNT OF LONG TERM CAPITAL G AIN ON SALE OF SHARES AND UNDISCLOSED BROKERS COMMISSION THEREON TO OBTAIN ABOVE ENTRIES EVEN WHEN THE ASSESSEE DID NOT DISCHARGE HI S ONUS TO PROVE THE GENUINENESS OF SHARE TRANSACTION RECEIPT. 2. THAT THE ORDER OF THE CIT(A)-I, AGRA IS ERRONEOU S IN LAW AND ON THE FACTS OF THE CASE AND THAT THE ORDER OF THE ASS ESSING OFFICER BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY GROUND DURING THE APPELLATE PROCEEDINGS. 2 4. THE DEPARTMENT HAS FILED APPEAL BEFORE THE HONB LE ITAT ON IDENTICAL ISSUES IN OTHER CASES. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS LESS THAN ` 2,00,000/-, THE SAME IS, THEREFORE, NOT MAINTAINABLE. THE LD. DEPARTMENTAL REPRESENTATIVE HAS CONCEDED TO THE STATEMENT OF THE LD. COUNSEL FOR THE ASSESSEE AND HAS NOT RAI SED ANY OBJECTION. 3. WE HAVE HEARD BOTH THE PARTIES AND NOTED THAT TH E TAX EFFECT IN THE PRESENT APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF TH E CIT(A) IS LESS THAN ` 2,00,000/- AND THE SAME IS IN CONTRAVENTION OF C.B.D.T. INSTRU CTION NO.5 OF 2008 DATED 15.05.2008 WHICH FINDS STATUTORY FORCE UNDER THE PR OVISIONS OF SECTION 268A OF THE INCOME-TAX ACT, 1961. THE SAME IS, THEREFORE, NOT MAINTAINABLE. THE CLAUSE NO.3 OF THE SAID C.B.D.T. INSTRUCTION HAS MADE IT CLEAR THAT APPEAL BEFORE THE TRIBUNAL BY THE REVENUE WILL HENCEFORTH BE FILED WHERE TAX E FFECT EXCEEDS ` 2,00,000/-. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE PR ESENT CASE, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND THE SAME IS DIS MISSED AS NOT MAINTAINABLE. 4. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 28.06.2011 ). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 28 TH JUNE, 2011 3 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY