Smt. Amita Agarwal, Agra V. ACIT, Agra

ITA 323/AGR/2006

• Counselvise Citation: 32320314 RSA 2006
• Duration Of Justice: 5 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-10-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 27-09-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: WASEEM ARSHAD
• Assessee Lawyers: ANURAG SINHA
• Keywords: Difference of opinion
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.323/AGR/2006 ASSESSMENT YEAR: 2001-02 SMT. AMITA AGARWAL, VS. ASSTT. COMMISSIONER OF IN COME-TAX, D-15, KAMLA NAGAR, CENTRAL CIRCLE, AGRA. AGRA. (PAN: AEGPA 5388 H). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANURAG SINHA, ADVOCATE RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. ITA NO.182/AGR/2006 ASSESSMENT YEAR: 2002-03 SHRI RAJESH KUMAR GARG, VS. ASSTT. COMMISSIONER OF INCOME-TAX, C/O. M/S PRAKASH COLD STORAGE, CIRCLE - 4(1), AGR A. HATHRAS ROAD, AGRA. (PAN: ACHPG 7827 Q). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MAHESH AGARWAL, C.A. RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 11.10.2011 DATE OF PRONOUNCEMENT : 11.10.2011 PER BENCH : IN THESE TWO CASES THE DIFFERENCE AROSE BETWEEN THE MEMBERS OF THE DIVISION BENCH HEARING THESE APPEALS. THEREFORE, T HE MATTER WAS REFERRED TO THE OPINION OF THE LD. THIRD MEMBER. THE LD. THIRD MEMBER HAS AGREED WITH ITA NOS.323 & 182/AGR/2006 2 THE VIEW TAKEN BY THE LD. JUDICIAL MEMBER IN BOTH T HESE CASES. THEREFORE, IN VIEW OF THE MAJORITY DECISION, THE APPEALS OF THE A SSESSEES ARE ALLOWED. 2. IN THE RESULT, APPEALS OF THE ASSESSEES ARE TREA TED AS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 11.10.2011) . SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 11 TH OCTOBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CON CERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TR IBUNAL, AGRA TRUE COPY ITA NOS.323 & 182/AGR/2006 3 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA AGRA BENCH, AGRA AGRA BENCH, AGRA AGRA BENCH, AGRA BEFORE SHRI G.E.V BEFORE SHRI G.E.V BEFORE SHRI G.E.V BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT EERABHADRAPPA, VICE PRESIDENT EERABHADRAPPA, VICE PRESIDENT EERABHADRAPPA, VICE PRESIDENT (AS A THIRD MEMBER) (AS A THIRD MEMBER) (AS A THIRD MEMBER) (AS A THIRD MEMBER) ITA NO. ITA NO. ITA NO. ITA NO.323 323 323 323/AGR/200 /AGR/200 /AGR/200 /AGR/2006 66 6 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2001 2001 2001 2001- -- -02 0202 02 SMT.AMITA AGARWAL, SMT.AMITA AGARWAL, SMT.AMITA AGARWAL, SMT.AMITA AGARWAL, D DD D- -- -15, KAMLA NAGAR, 15, KAMLA NAGAR, 15, KAMLA NAGAR, 15, KAMLA NAGAR, AGRA. AGRA. AGRA. AGRA. PAN NO.AEGPA5388H. PAN NO.AEGPA5388H. PAN NO.AEGPA5388H. PAN NO.AEGPA5388H. VS. VS. VS. VS. ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE, CENTRAL CIRCLE, CENTRAL CIRCLE, CENTRAL CIRCLE, AGRA. AGRA. AGRA. AGRA. (APPELLANT) (RESPONDENT) ITA NO. ITA NO. ITA NO. ITA NO.182/AGR/2006 182/AGR/2006 182/AGR/2006 182/AGR/2006 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2002 2002 2002 2002- -- -03 0303 03 SHRI RAJESH KUMAR GARG, SHRI RAJESH KUMAR GARG, SHRI RAJESH KUMAR GARG, SHRI RAJESH KUMAR GARG, C/O M/S PRAKASH COLD C/O M/S PRAKASH COLD C/O M/S PRAKASH COLD C/O M/S PRAKASH COLD STORAGE, STORAGE, STORAGE, STORAGE, HATHRAS ROAD, HATHRAS ROAD, HATHRAS ROAD, HATHRAS ROAD, AGRA. AGRA. AGRA. AGRA. PAN NO. PAN NO. PAN NO. PAN NO.ACHPG7827Q. ACHPG7827Q. ACHPG7827Q. ACHPG7827Q. VS. VS. VS. VS. ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE 4(1) 4(1) 4(1) 4(1), ,, , AGRA. AGRA. AGRA. AGRA. (APPELLANT) (RESPONDENT) APPELLANT (SMT.AMITA AGARWAL) BY:- APPELLANT (SHRI RAJESH KUMAR GARG) BY:- : SHRI ANURAG SINHA, ADVOCATE. WRITTEN SUBMISSIONS. RESPONDENT BY : SHRI HOMI RAJVANSH, CIT-DR. ORDER ORDER ORDER ORDER THESE TWO APPEALS ARE BY TWO DIFFERENT INDIVIDUALS . THE CASE OF SMT.AMITA AGARWAL IS FOR THE ASSESSMENT YEAR 2001-0 2 WHILE THE CASE OF SHRI RAJESH KUMAR GARG IS FOR ASSESSMENT YEAR 20 02-03. ITA NOS.323 & 182/AGR/2006 4 2. THE ONLY ISSUE OF DIFFERENCE BETWEEN THE MEMBERS OF THE DIVISION BENCH CONSTITUTED IN THESE CASES WAS THE NON-ACCEPT ANCE OF THEIR CLAIMS IN RESPECT OF LONG TERM CAPITAL GAIN (LTCG) ON THE SALE OF SHARES, WHICH WAS TREATED BY THE REVENUE AS INCOME FROM OTH ER SOURCES. 3. ACCORDING TO THE REVENUE, THE ASSESSEE FAILED TO PROVE THE SHARE TRANSACTIONS YIELDING THE CAPITAL GAINS. THE LEARN ED JUDICIAL MEMBER, WHO FIRST WROTE THE ORDER, ACCEPTED THE ASSESSEES CONTENTION IN THE LIGHT OF THE OVERWHELMING EVIDENCES PRODUCED BY THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION AND IN THE ABSENCE OF ANY MATERIAL TO SHOW THAT THE TRANSACTIONS OF SALE OF S HARES RESULTED IN LONG TERM CAPITAL GAINS WERE CAMOUFLAGED TO DEFRAUD THE REVENUE. THE CLAIMS OF THE ASSESSEE STOOD ACCEPTED. WHEN THE MA TTER WENT BEFORE THE LEARNED ACCOUNTANT MEMBER, HE BASED HIS DISSENT IN THE FOLLOWING MANNER:- I HAVE CAREFULLY PERUSED THE ORDER PROPOSED BY MY LD.BROTHER, AND ALSO DISCUSSED THE SAME WITH HIM. HOWEVER, BEING UNABLE TO BRING MYSELF IN AGREEMENT THEREWITH, I PROCEED TO WRITE MY SEPARATE ORDER, AS UNDER. 2. THE ONLY ISSUE ARISING IN THE ASSESSEE APPEAL I N THE PRESENT CASE IS THE NON-ACCEPTANCE OF ITS CLAIM IN RESPECT OF LONG TERM CAPITAL GAIN (LTCG) ON THE SALE OF SHA RES, WHICH STANDS TREATED BY THE REVENUE AS INCOME FROM OTHER SOURCES, AS IN ITS VIEW THE ASSESSEE WAS UNABLE TO PROVE THE SHARE TRANSACTION(S) YIELDING THE CAPITAL GAIN UNDER REFERENCE. 3.1 FOR THE DETAILED REASONS LISTED IN THE CASE OF SHRI BAIJNATH AGARWAL (ITA NO.133/AGR/2007), I HAVE, VID E MY DISSENTING ORDER DATED 10.02.2009, TAKEN A DIFFEREN T VIEW FROM THAT BY MY LD. BROTHER, DISMISSING THE ASSESSE ES APPEAL ON THIS GROUND, IN THAT CASE. 3.2 ON THE BASIS OF THE HEARING, AND THE EXAMINATIO N OF THE RECORD, I FIND THE FACTS AND CIRCUMSTANCES IN T HE PRESENT CASE, AS ALSO THE RESPECTIVE CASES OF THE O PPOSING PARTIES, AS VERY SIMILAR TO THAT OBTAINING IN THE C ASE OF SHRI ITA NOS.323 & 182/AGR/2006 5 BAIJNATH AGARWAL (SUPRA). AS SUCH, FOR THE DETAILE D REASONS AS MENTIONED THEREIN, I CONSIDER THE REVENUES CASE AS LEGALLY SUSTAINABLE, SO THAT IT WOULD STAND TO BE U PHELD, AND THE ASSESSEES APPEAL, CONSEQUENTLY, DISMISSED. A DECISION, IT NEEDS TO BE APPRECIATED, IS TAKEN ON T HE BASIS OF A GIVEN COMPLEX OF FACTS AND CIRCUMSTANCES, AS OBTAINING, AND SOME VARIATION IN THE INDIVIDUAL FAC TS OR CIRCUMSTANCES, WHERE NOT MATERIAL, AS IN THE PRESEN T CASE, WOULD NOT GO TO ALTER THE INFERENTIAL FINDINGS, WHI CH IN THE PRESENT CASE PERTAIN TO THE VALIDITY OR OTHERWISE O F THE NON- SATISFACTION OF THE REVENUE WITH THE ASSESSEES EXPLANATION IN RESPECT OF THE IMPUGNED CREDIT(S) IN PROVING THE SAME U/S 68 OF THE ACT, WITH THE REVENUE, RATHE R, EXCEEDING, AS IN THE SAID CASE, THE MANDATE OF S.68 (WHICH ONLY REQUIRES IT TO HAVE COGENT AND REASONABLE BASI S FOR ITS NON-SATISFACTION WITH THE ASSESSEES EXPLANATION(S) BY HOLDING THE CREDIT(S) TO BE BOGUS, SO THAT IT REPRE SENTS THE ASSESSEES OWN MONIES, ROUTED THUS. MY SEPARATE OR DER IN THE CASE OF SHRI BAIJNATH AGARWAL (ITA NO.133/AGR/2 007) WOULD, CONCOMITANTLY, FORM PART OF THIS ORDER, AND STANDS DULY ENCLOSED ALONG WITH BY WAY OF ANNEXURE-A THERE TO. I DECIDE ACCORDINGLY, DISMISSING THE ASSESSEES APPEA L. 4. AS COULD BE SEEN FROM THE ABOVE, THE DIFFERENCE IS FOR THE REASONS MENTIONED IN THE CASE OF SHRI BAIJNATH AGAR WAL (ITA NO.133/AGR/2007) VIDE LEARNED AMS DISSENTING ORDER DATED 10.2.2009 WHEREIN HE HAS TAKEN A DIFFERENT VIEW FROM THAT OF THE LEARNED JM. THE LEARNED AM FURTHER WRITES THAT THE FACTS AND CIRCUM STANCES IN THE PRESENT CASE, AS ALSO THE RESPECTIVE CASES OF THE O PPOSING PARTIES, ARE VERY SIMILAR TO THOSE OBTAINING IN THE CASE OF SHRI BAIJNATH AGARWAL (SUPRA). THAT IS HOW THE DIFFERENCE OF OPINION BET WEEN THE MEMBERS CONSTITUTING THE DIVISION BENCH IN BOTH THESE CASES HAS COME UP BEFORE ME AND THE HONBLE PRESIDENT HAS NOMINATED ME AS A THIRD MEMBER UNDER SECTION 255(4) OF THE IT ACT, 1961 TO RESOLVE THIS DIFFERENCE. 5. IN THE CASE OF SHRI RAJESH KUMAR GARG, WRITTEN S UBMISSIONS WERE FILED WHEREIN IT IS CONTENDED BY THE ASSESSEE THAT THE HONBLE ACCOUNTANT MEMBER HAS DISSENTED FROM THE VIEWS OF T HE LEARNED JUDICIAL MEMBER ON THE BASIS OF DISCUSSIONS IN SHRI BAIJNATH AGARWAL ITA NOS.323 & 182/AGR/2006 6 AND THE CASE OF SHRI BAIJNATH AGARWAL HAS SINCE BEE N DECIDED BY THE THIRD MEMBER IN 133 TTJ 129 VIDE ORDER DATED 13 TH APRIL, 2010. IN THE LIGHT OF THE SAME, HIS APPEAL BE DECIDED IN HIS FAV OUR. 6. IN THE CASE OF SMT.AMITA AGARWAL, THE LEARNED CO UNSEL WHO APPEARED FOR THE ASSESSEE ALSO PLEADED THAT THE FAC TS OF THE ASSESSEES CASE ARE SIMILAR TO THOSE FACTS OBTAINING IN THE CA SE OF SHRI BAIJNATH AGARWAL AND IN THE LIGHT OF THE DECISION OF THE THI RD MEMBER IN SHRI BAIJNATH AGARWALS CASE, THE ASSESSEES APPEAL BE D ECIDED. 7. THE LEARNED DR FAIRLY AGREED THAT THE FACTS AND CIRCUMSTANCES OF BOTH THE CASES ARE SIMILAR TO THOSE OBTAINING IN TH E CASE OF SHRI BAIJNATH AGARWAL WHICH WAS ALSO THE SUBJECT-MATTER OF DIFFERENCE AND, IN FACT, THE PRESENT DIFFERENCE ORIGINATED FROM THE DIFFERENCE IN THE CASE OF SHRI BAIJNATH AGARWAL. HE ALSO AGREED THAT IN THE CASE OF SHRI BAIJNATH AGARWAL, THE THIRD MEMBER HAS AGREED WITH THE STAND OF THE ASSESSEE, ALTHOUGH THE LEARNED DR STRONGLY SUPPORTE D THE VIEW IN THE ORDER OF THE LEARNED ACCOUNTANT MEMBER. 8. I HAVE CAREFULLY GONE THROUGH THE RECORDS AS ALS O THE POINTS OF DIFFERENCE BETWEEN THE MEMBERS AND THE DECISION REN DERED BY THE THIRD MEMBER IN THE CASE OF SHRI BAIJNATH AGARWAL. SINCE THE DIFFERENCE BETWEEN THE MEMBERS IN THESE TWO CASES I S THE RESULT OF DIFFERENCE THEY CARRIED FROM THE CASE OF SHRI BAIJN ATH AGARWAL WHICH, AS I UNDERSTAND, IS DECIDED IN FAVOUR OF THE ASSESS EE BY THE THIRD MEMBER, THEREFORE, ON THE BASIS OF THE DISCUSSIONS BY THE THIRD MEMBER IN THE CASE OF SHRI BAIJNATH AGARWAL CITED S UPRA, I AGREE WITH THE VIEW TAKEN BY THE LEARNED JUDICIAL MEMBER AND H OLD THAT THE CIT(A) HAS ERRED IN FACTS AS WELL AS IN LAW IN UPHOLDING T HE ORDER OF THE ASSESSING OFFICER TREATING THE INCOME IN QUESTION U NDER THE HEAD LONG TERM CAPITAL GAIN AS SHAM AND BOGUS AND TAXING THE SAME UNDER THE ITA NOS.323 & 182/AGR/2006 7 HEAD INCOME FROM OTHER SOURCES. THE QUESTIONS RA ISED ON THE DISPUTED ISSUE ARE ANSWERED ACCORDINGLY. 9. THE MATTER SHALL NOW BE PLACED BEFORE THE REGULA R BENCH FOR DECIDING THE APPEALS IN ACCORDANCE WITH THE MAJORIT Y OPINION. DECISION PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2011. SD/- (G.E.VEERABHADRAPPA (G.E.VEERABHADRAPPA (G.E.VEERABHADRAPPA (G.E.VEERABHADRAPPA) )) ) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 30.08.2011 VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR