ITO- 1(3), Agra V. M/s Vinod Kumar Katyal & Sons, Agra

ITA 288/AGR/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2486 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-02-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 10-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: R K JAIN
• Keywords: Additional evidence; Corroborative evidences
• Section: 142(1); 147; 148; 144

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.288/AGR/2009 ASST. YEAR: 2001-02 INCOME TAX OFFICER - 1(3), VS. M/S. VINOD KUMAR KATYAL & SONS HUF AGRA. A-33, NEW AGRA, AGRA. (PAN : AAAHV 6911 M) C.O. NO.04/AGR/2010 (IN ITA NO.288/AGR/2009) ASST. YEAR: 2001-02 M/S. VINOD KUMAR KATYAL & SONS HUF, VS. INCOME TAX OFFICER - 1(3), A-33, NEW AGRA, AGRA. AGRA. (PAN : AAAHV 6911 M) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI A.K. SHARMA, JR. D.R. ASSESSEE BY : SHRI R.K. JAIN, C.A. ORDER PER H.S. SIDHU, J.M. : THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE HAVE BEEN FILED AGAINST THE ORDER OF THE CIT(A) DATED 24.04.2009. 2. THE REVENUE IN ITS APPEAL HAS RAISED THE FOLLOWI NG GROUNDS :- 1. THAT THE CIT(A)-1, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 4,06,050/- U/S 68 ON ACCOUNT OF BOGUS ENTRY OF LONG TERM CAPITAL GAIN OBTAINED BY THE ASSESSEE, WITHOUT APPRECIATING THE FACTS OF THE CASE; 2 (B) IN DOING SO THE CIT(APPEALS)-1, AGRA HAS ERRED IN LAW AND ON FACTS AS THE ASSESSEE FAILED TO DISCHARGE HIS ONUS OF PROVING TH E CLAIMED SHARE TRANSACTION AS GENUINE BEFORE THE A.O. AT THE TIME OF ASSESSMENT P ROCEEDINGS; (C) IN DOING SO THE CIT(APPEALS)-1, AGRA HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDENCE (WHICH WAS NOT FU RNISHED BEFORE THE A.O.) WITHOUT GIVING ANY OPPORTUNITY TO THE A.O. TO EXAMI NE THE EVIDENCE, AS REQUIRED UNDER RULE 46A(3) OF IT RULES, 1962; 2. THAT THE CIT(A)-1, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 3,50,000/- WITHOUT APPRECIATING THE FACTS UNDER WHI CH THE A.O. MADE SUCH AN ADHOC ADDITION; 3. THAT THE ORDER OF THE CIT(A)-1, AGRA BEING ERRON EOUS IN LAW AND ON FACTS BE SET-ASIDE AND THAT THE ORDER OF THE ASSESSING OF FICER BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY ONE OR MORE GROUND(S) DURING THE APPEAL PROCEEDINGS. 3. THE ASSESSING OFFICER HAS TAKEN ACTION UNDER SE CTION 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) IN THE CASE OF THE ASSESSEE BY ISSUING A NOTICE UNDER SECTION 148 ON THE BASIS OF SOME BOGUS ENTRIES OF SALE PROCEEDS OF SOM E SHARES THROUGH THE BANK ACCOUNT TO THE ASSESSEE. IN RESPONSE TO THE NOTICE, THE ASSESSEE DID NOT COMPLY WITH THE REQUIREMENT OF NOTICE AND FINALLY THE ASSESSING OFFICER COMPLETED THE ASS ESSMENT UNDER SECTION 144 OF THE ACT ON 15.10.2008 BECAUSE THE ASSESSMENT IS GOING TO BECOM E TIME BARRED. THE ASSESSING OFFICER IS OF THE OPINION THAT THE ASSESSEE HAS NOT MADE COMPLIAN CE OF THE NOTICE UNDER SECTION 142(1) OF THE ACT SIMPLY FOR THE REASON THAT HE HAS NO EXPLANATIO N TO OFFER FOR PROVIDING THE GENUINENESS OF THE TRANSACTION AND FINALLY ASSESSED INCOME OF THE ASSE SSEE OF RS.7,56,050/- VIDE HIS ORDER DATED 15.10.2008 WHICH INCLUDED THE ADDITION OF RS.4,06,0 50/- ON ACCOUNT OF BOGUS ENTRY OF LONG TERM CAPITAL GAIN OBTAINED BY THE ASSESSEE OF RS.3, 50,000/- ON ESTIMATION BASIS BECAUSE THE ASSESSEE HAS NOT FILED ITS RETURN OF INCOME AND DET AILS AS HIS INCOME. AGGRIEVED BY THE ASSESSMENT ORDER DATED 15.10.2008 PASSED BY THE ASS ESSING OFFICER UNDER SECTION 144 OF THE ACT, THE ASSESSEE FILED THE APPEAL BEFORE THE LD. F IRST APPELLATE AUTHORITY WHO VIDE IMPUGNED 3 ORDER DATED 24.04.2009 ALLOWED THE APPEAL OF THE AS SESSEE BY DELETING THE ADDITION IN DISPUTE. NOW THE REVENUE HAS FILED THE PRESENT APPEAL AGAINS T THE IMPUGNED ORDER. 4. AT THE TIME OF HEARING, THE LD. D.R. RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER AND, ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSES SEE RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. HE HAS ALSO FILED PAPER BOOK CONTAINING PAGES 1 TO 11 IN WHICH HE HAS ATTACHED HIS SUBMISSIONS AND EVIDENCES FILED BEFORE THE LD. FIRST APPELLATE AUTHORITY WHICH CONTAINED IN PAGE NOS.1 TO 9 AND A COPY OF APPEAL A ND GROUNDS FILED BEFORE THE CIT(A) FROM PAGE 10 TO 11 OF HIS PAPER BOOK. THE ASSESSEE HAS FURTH ER STATED THAT HE HAS NOT FILED ANY ADDITIONAL EVIDENCE BEFORE THE LD. FIRST APPELLATE AUTHORITY. HE HAS ONLY FILED SUPPORTING EVIDENCES WHICH IS NOT IN VIOLATION OF RULE 46A(3) OF THE INCOME TA X RULES, 1962. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US. WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSING OF FICER COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT ON 15.10.2008 BY MAKING ADDITION IN DISPUTE ONLY DUE TO NON-APPEARANCE OF THE ASSESSEE AND ON ESTIMATION BASIS. BUT THE LD. FIRS T APPELLATE AUTHORITY HAS THOROUGHLY GONE THROUGH THE EVIDENCES FILED BY THE ASSESSEE ALONG W ITH THE RETURN. THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY HELD ON THE BASIS OF PHOTOCOP Y OF RETURN FILED BY THE ASSESSEE ON 22.10.2001 IN WARD NO.2(3), AGRA SHOWING INCOME FROM BUSINESS OR PROFESSION AMOUNTING TO RS.1,98,435/- AND ALSO OFFERED THE SAME FOR TAX IN ITS RETURN. T HE LD. FIRST APPELLATE AUTHORITY HAS HELD THAT THE RETURN FILED BY THE ASSESSEE ON 22.10.2001 WAS NOT AVAILABLE WITH THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT PROCEEDINGS. THEREFORE, HE ADDE D THE ADDITION OF RS.4,06,050/-. THE ASSESSING OFFICER HAS ADDED THE AMOUNT OF RS.4,06,0 50/- THOUGH THE AMOUNT OF RS.2,00,025/- HAS ALREADY BEEN OFFERED FOR TAX IN ITS ORIGINAL REGULA R RETURN OF INCOME [I.E. RS.1,98,435/- 4 { ` 2,00,025/- (-) ` 600/- (-) ` 990/-}]. KEEPING IN VIEW THE ABOVE FINDING GIVEN B Y THE LD. FIRST APPELLATE AUTHORITY, WE ARE OF THE CONSIDERED OPINI ON THAT ADDITION OF RS.4,06,050/- HAS RIGHTLY BEEN DELETED BY THE LD. FIRST APPELLATE AUTHORITY. WE UPHOLD THE SAME. 6. AS REGARDS TO ADDITION OF RS.3,50,000/- ON ACCOU NT OF BOGUS SHARE TRANSACTION ON ESTIMATION BASIS, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS FILED ITS ORIGINAL RETURN OF INCOME WHICH WAS NOT AVAILABLE WITH THE ASSESSING O FFICER AT THE TIME OF ASSESSMENT IN WHICH THE ASSESSES HAS ALREADY DECLARED AMOUNT OF RS.2,01 ,180/- INCLUDING THE AMOUNT OF RS.2,00,025/-. THEREFORE, THIS ADHOC ADDITION IS ALSO NOT SUSTAINA BLE IN THE EYES OF LAW. THUS, WE UPHOLD THE IMPUGNED ORDER BECAUSE THE LD. FIRST APPELLATE AUTH ORITY HAS PASSED A WELL REASONED ORDER ON THE BASIS OF EVIDENCES AVAILABLE WITH HIM. 7. AS REGARDS TO CROSS OBJECTION FILED BY THE ASSES SEE, AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HE IS NOT PRES SING THE CROSS OBJECTION. THEREFORE, THE SAME IS DISMISSED. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALSO DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.02.2011) SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 25 TH FEBRUARY, 2011 5 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 ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY