Shri Dharmveer Tyagi, Haridwar V. The Income Tax Officer, Ward-1(3)(1), Haridwar

ITA 34/DDN/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6343 (ITAT-DEHRADUN)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 13-11-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital asset; Business income; Principle of natural justice
• Section: 20

Judgement Text

1 ITA NO. 34/DDN/2020 IN THE INCOME TAX APPELLATE TRIBUNAL DEHRADUN CIRCUIT BENCH: DEHRADUN BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIA L MEMBER ITA NO. 34/DDN/20 20 ( A.Y 2016-17) (THROUGH VIDEO C ONFERENCING) SH. DHARMVEER TYAGI, R/O.C-15, SHAKTI NAGAR COLONY, VILLAGE JAGJEETPUR, UTTARAKHAND-249408 (APPELLANT) VS INCOME TAX OFFICER, WARD 1(3) (1), INCOME TAX OFFICE, YOGI BHAVAN, INDUSTRIAL AREA, HARDWAR, HARIDWAR, UTTARAKHAND-224110 (RESPONDENT) APPELLANT BY SH. SAURABH GUPTA, RESPONDENT BY SH. N. C. UPADHYAYA, CIT DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 18/09/2020 PASSED BY CIT(A)-DEHRADUN FOR ASSESSMENT YEAR 2016- 17. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN REJECTING THE AFFIDAVIT OF THE ASSESSEE'S BROTHER I N RESPECT OF THE SALE DEED OF RURAL AGRICULTURE LAND JOINTLY SOLD BY THE ASSESSEE AND HIS BROTHER, MERELY ON THE FACT THAT THE SAME W AS NOT BEING PRESENTED BEFORE THE ASSESSING OFFICER. DATE OF HEARING 26.08.2021 DATE OF PRONOUNCEMENT 10.09.2021 2 ITA NO. 34/DDN/2020 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAD MADE GROSS ERROR IN TAKING THE ENTIRE AMOUNT OF DEPOSIT AS THE CASH RECEIPTS OF THE ASSESSEE WITHOUT GIVING RELIEF OF T HE AMOUNT OF SHARE OF ASSESSEE'S BROTHER IN THE SALE WHICH HAS B EEN DEPOSITED BY THE ASSESSEE IN HIS ACCOUNT . 3. THE ASSESSEE E-FILED HIS RETURN OF INCOME FOR TH E RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION I.E. A.Y. 2016-17 DECLARIN G INCOME OF RS.5,03,910/-. THE CASE WAS SELECTED FOR SCRUTINY THROUGH CASS. DU RING THE COURSE OF THE ASSESSMENT PROCEEDING, THE ASSESSING OFFICER OBSERV ED THAT THE ASSESSEE WAS ENGAGED IN SHARE TRADING BUSINESS AND DURING THE YE AR UNDER CONSIDERATION, HE HAD TRADED IN FUTURE & OPTIONS FOR RS. 15,41,805/-A ND RS. 34,157/-IN RESPECT OF INTRA-DAY TRADING. THUS, THE TOTAL TURNOVER OF S HARE TRADING BUSINESS WORKED OUT TO RS.15,75,963/-. THE ASSESSING OFFICER FURTHE R OBSERVED THAT THE ASSESSEE HAD DECLARED NET LOSS OF RS.1,72,746/-ON TRADING OF SHARES. THE ASSESSMENT ORDER WAS PASSED ON 12/10/2018 BY THE ASSESSING OFF ICER, THEREBY MAKING AN ADDITION OF RS. 7,47,000/- ON ACCOUNT OF UNEXPLAIN ED CASH DISPOSITS AND ADDITION OF RS. 1,26,077/- ON ACCOUNT OF 8% PROFIT ON SHARES TRADING AS BUSINESS INCOME. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED BEFORE THE CIT(A). THE CIT(A) PARTLY ALLOWED THE APPEAL OF TH E ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) ERRED IN RE JECTING THE AFFIDAVIT OF THE ASSESSEES BROTHER IN RESPECT OF SALE DEED OF RURAL AGRICULTURAL LAND WHICH WAS JOINTLY SOLD BY THE ASSESSEE AND HIS BROTHER, MEREL Y ON THE FACT THAT THE SAME WAS NOT PRESENTED BEFORE THE ASSESSING OFFICER. TH E LD. AR FURTHER SUBMITTED THAT THE CIT(A) HAS WRONGLY TAKEN THE ENTIRE AMOUNT OF DEPOSITS AS CASH RECEIPTS OF THE ASSESSEE WITHOUT GIVING RELIEF OF T HE AMOUNT OF SHARES OF 3 ITA NO. 34/DDN/2020 ASSESSEES BROTHER IN THE SALE WHICH HAS BEEN DEPOS ITED BY THE ASSESSEE IN HIS BROTHERS ACCOUNT. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE CIT(A) HAS NOT TAKEN COGNIZANCE OF THE ASSESSEES PLEA THAT THE AFFIDAVIT OF THE ASSESSEE S BROTHER BE TAKEN ON RECORD AND THE SAME SHOULD BE CONSIDERED WHILE ARRIVING AT THE PROPER CONCLUSION AS PER PROVISIONS OF LAW. MERELY NOT PRESENTING THE S AID AFFIDAVIT BEFORE THE ASSESSING OFFICER CANNOT BE THE GROUND FOR CONFIR MING THE ADDITION OF THE ASSESSING OFFICER BY THE CIT(A). THEREFORE, WE FIN D IT APPROPRIATE TO REMAND BACK THIS ISSUE CONTESTED BEFORE US TO THE FILE OF THE ASSESSING OFFICER AND WE DIRECT THE ASSESSING OFFICER TO TAKE COGNIZANCE OF THE AFFIDAVIT OF THE ASSESSEES BROTHER IN RESPECT OF THE SALE DEED OF RURAL AGRICU LTURAL LAND JOINTLY SOLD BY THE ASSESSEE AND HIS BROTHER AS WELL AS THE AMOUNT DEPO SITED SHOULD BE CONSIDERED IN ACCORDANCE OF THE JOINTLY OWNED PROPERTY/SHARE O F THE ASSESSEES BROTHER AND THEREAFTER TAKE APPROPRIATE DECISION AS PER LAW. N EEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCI PLES OF NATURAL JUSTICE. THUS, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR ST ATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF SEPTEMBER, 2021 SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 10/09/2021 R. NAHEED 4 ITA NO. 34/DDN/2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI