Umapati Commodities Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 3245/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65437 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUMANA SEN
• Assessee Lawyers: RAKESH JOSHI SANJAY JAIN CAS

Judgement Text

ITA NO. 3245/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER I.T.A. NO. 3245/DEL/2012 A.Y. : 2009-10 M/S UMAPATI COMMODITIES PRIVATE LIMITED, 213, ESSEL HOUSE, ASAF ALI ROAD, NEW DELHI 110 002 VS. INCOME TAX OFFICER, WARD 18(1), C.R. BLDG., NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SH. RAKESH JOSHI; SANJAY JAIN, CAS DEPARTMENT BY : S MT. SHUMANA SEN , SR. D.R. ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXI, NEW DEL HI DATED 24.4.2012 PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED READ AS UNDER:- I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. COMMISSIONER OF INCOME TAX (A ) HAS ERRED IN TREATING THE CASH RECEIVED ` 27,08,545 /- FROM DEBTORS, WHICH HAS ALREADY BEEN OFFERED AS INCOME, AS UNEXPLAINED CASH WITHIN THE MEANING U/S. 68 OF THE INCOME TAX ACT WITHOUT CONSIDERING THE FAC TS AND CIRCUMSTANCES OF THE CASE. ITA NO. 3245/DEL/2012 2 II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. COMMISSIONER OF INCOME TAX (A ) ERRED IN CONFIRMING THE ADDITION BY REFERRING TO THE SEBI GUIDELINES ISSUED TO THE MCX MEMBERS, WHICH ARE DISCRETIONARY IN NATURE AND NOT MANDATORY, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE . III) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ALS O ERRED IN HOLDING THAT THE APPELLANT HAS NOT DISCHA RGED HIS ONUS ON THE NON ATTENDANCE OF THE THREE PARTIES NAMELY SHRI ADITYA JAIN, SHRI AMIT KUMAR GOEL AND SH. PRAMOD CHAWLA WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. IV) THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE THE SAID GROUND OF APPEAL. 3. IN THIS CASE WHILE EXAMINING THE ASSESSEES BANK ACCOUNT, ASSESSING OFFICER OBSERVED THAT HUGE AMOUNT WAS DEP OSITED BY THE ASSESSEE IN CASH. IT WAS FURTHER OBSERVED THAT CAS H WAS RECEIVED FROM SHRI AMIT KUMAR GOEL AMOUNTING TO ` 10.80 LACS; SH. PR AMOD CHAWLA ` 786509/- AND SH. ADITYA JAIN ` 842036/-. TO VERIFY THE GENUINENESS OF CASH RECEIVED FROM ADITYA JAIN, SUMMON U/S. 131 OF THE I.T. ACT WAS ISSUED. HOWEVER, NONE ATTENDED NOR ANY SUBMISSION WAS FILED. ASSESSEE WAS ASKED BY THE ASSESSING OFFICER TO PRO DUCE SH. ADITYA JAIN THIS WAS NOT COMPLIED WITH. TO VERIFY THE CASH RECEIVED FROM AMIT KUMAR GOEL AND PRAMOD KUMAR, THE A.R. OF THE ASSESS EE WAS ASKED TO PROVIDE THE LATEST ADDRESS OF THESE PERSONS. HOWEV ER, THE SAME WAS NOT COMPLIED WITH. ASSESSEE SUBMITTED BEFORE THE A SSESSING OFFICER THAT CASH HAD BEEN DEPOSITED IN THE BANK ACCOUNT FR OM THE WITHDRAWAL ITA NO. 3245/DEL/2012 3 OF THE BANK ACCOUNT AND CASH RECEIVED FROM THE DEBTO RS OF THE COMPANY. THE ASSESSING OFFICER NOTED THAT ASSESS EES NATURE OF BUSINESS IS TO SALE / PURCHASE OF SHARES AND COMMODI TIES ON BEHALF OF ITS CLIENTS. ASSESSING OFFICER NOTED THAT ASSES SEE HAS NOT COMPLIED WITH THE DETAILS REQUIRED. ACCORDINGLY, HE TREATED THE CASH DEPOSITS IN ASSESSEES BANK ACCOUNT AS ASSESSEES INCOME U/S. 6 8 OF THE I.T. ACT. ACCORDINGLY, ADDITION OF ` 2708545/- WAS MADE. 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (A) ASS ESSEE SUBMITTED THAT ASSESSING OFFICER WAS NOT RIGHT IN HER APPROACH BY NOT GIVING PROPER OPPORTUNITY AT THE TIME OF ASSESSMENT PROCEEDINGS. LD. COMMISSIONER OF INCOME TAX (A) NOTED THAT IN THE APP ELLATE STAGE ASSESSEE HAS CHANGED THE POSITION AND SUBMITTED THAT IT WAS A BROKERAGE INCOME WHICH WAS EARNED IN CASH. LD. CO MMISSIONER OF INCOME TAX (A) ALSO REFERRED TO THE CIRCULAR DATED 1.10.2009 ISSUED FROM MCX. LD. COMMISSIONER OF INCOME TAX (A) OBSERVED FROM THIS CIRCULAR THAT IT HAS BEEN VERY SPECIFICALLY MENTIONE D THAT MEMBERS ARE ADVISED NOT TO ACCEPT CASH FROM THE CLIENTS AGAINST OBLIGATION OR AS MARGIN FOR TRADING IN COMMODITY DERIVATIVES. ACCOR DINGLY, LD. COMMISSIONER OF INCOME TAX (A) CONFIRMED THE ADDITIO N MADE BY THE ASSESSING OFFICER. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THAT ASSESSEE IN THIS CASE HAS NOT PROVIDED NECESSARY INFORMATION SOUGHT BY THE ASSESSING OFFICER IN RESPECT OF CASH DEPOSITS IN ASSESSEES BANK ACCOUNT. THE CASH DEPOSITS WERE SAID TO BE RECEIVED FROM THREE P ERSONS NAMELY SH. AMIT KUMAR GOEL; PRAMOD CHAWLA AND ADITYA JAIN. ASSES SING OFFICER ITA NO. 3245/DEL/2012 4 HAS ASKED THE ADDRESSES OF THESE PERSONS. HOWEVER , THE SAME WAS NOT PRODUCED. IN THIS BACKGROUND, THE ADDITION W AS MADE IN THE ASSESSEES ACCOUNT. BEFORE THE LD. COMMISSIONER OF INCOME TAX (A) ASSESSEE HAS SUBMITTED THAT IT WAS NOT A CASH DEPOSI TS FROM PARTIES, RATHER IT WAS A BROKERAGE INCOME EARNED IN CASH. WE FIND THAT ASSESSEE IN THIS REGARD HAS NOT PROVIDED THE NECESS ARY DETAILS AS REQUIRED BY THE REVENUE. IN OUR CONSIDERED OPINION , INTEREST OF JUSTICE WILL BE SERVED, IF THE MATTER IS REMITTED TO THE FIL E OF THE ASSESSING OFFICER TO CONSIDER THE ISSUE AFRESH. THE ASSESSE E IS DIRECTED TO GIVE NECESSARY INFORMATION AND EXPLANATION TO THE ASSES SING OFFICER IN THIS REGARD. ACCORDINGLY, THE ISSUE IS REMITTED TO THE FILE OF THE ASSESSING OFFICER. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17/9/2012. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [ [[ [C.M. GARG C.M. GARG C.M. GARG C.M. GARG] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 17/9/2012 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES