Late Pmkar Nath Mittal, Agra V. I.T.O.-4(3), Agra

ITA 35/AGR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60107 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-04-2012
• Assessment Year: 1999-2000
• Appeal Filed On: 17-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Income from undisclosed sources; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 35/AGRA/2011 ASSTT. YEAR : 1999-2000 LATE OMKAR NATH MITTAL, VS. INCOME-TAX OFFICER, THROUGH LEGAL HEIR SHRIKANT MITTAL, 4(3), AGRA. SHYAM MARKET, JOHRI BAZAR, AGRA. (PAN : ACKPM 2138D) (APPELLANT) (RESPONDENT) APPELLANT BY : WRITTEN SUBMISSIONS RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 03.04.2012 DATE OF PRONOUNCEMENT : 13.04.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, AGRA DATED 13.12.2010 FOR THE ASSESSMENT YEAR 1999- 2000. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THE ASSESSEE FORWARDED WRITTEN SUBMISSION WHICH IS TAKE N INTO CONSIDERATION. WE HAVE HEARD THE LD. DR AND PERUSED THE FINDINGS OF T HE AUTHORITIES BELOW. THE ASSESSEE FILED APPEAL ON SIX GROUNDS OF APPEAL. THE ASSESSEE IN HIS WRITTEN ITA NO. 35/AGRA/2011 2 SUBMISSIONS DID NOT PRESS GROUND NO. 1, 2, 4, 5 & 6 . THE SAME ARE, ACCORDINGLY DISMISSED, BEING NOT PRESSED. 3. THE ONLY GROUND LEFT FOR CONSIDERATION IS GROUND NO. 3, WHICH IS ALSO MODIFIED BY THE ASSESSEE IN HIS WRITTEN SUBMISSION BY MAKING THE AMENDED CONCISE GROUND OF APPEAL, THEREBY CHALLENGING THE O RDER OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.71,000/- BEING THE CO ST OF PURCHASE OF SHARES INCLUDED IN THE SALE PROCEEDS OF SHARES. THE LD. CI T(A), ON THIS ISSUE, NOTED THAT THE ASSESSEE RAISED ADDITIONAL GROUND OF APPEAL BEF ORE HIM AND ACCORDING TO THE SAME, THE ASSESSEE HAS NOT CLAIMED A SUM OF RS.71,0 00/- AS SHARE COST MONEY. IN THIS CASE, ORIGINALLY, THE ASSESSEE HAD SHOWN SHORT -TERM CAPITAL GAIN ON SALE OF SHARES. HOWEVER, THE SUM WAS SURRENDERED VOLUNTARIL Y BEFORE THE AO AND SALE PROCEEDS RECEIVED ON ACCOUNT OF SALE OF SHARES WAS ASSESSED AS INCOME FROM OTHER SOURCES. THE ADDITIONAL GROUND WAS REFERRED TO THE AO FOR HIS COMMENTS AND THE AO IN HIS COMMENTS DATED 29.10.2010 HAS STATED THAT AT THE TIME OF PASSING OF THE ORDER U/S. 143(3)/147, THE LEGAL HEIR OF THE ASSESS EE WAS NOT HAVING ANY EVIDENCE OF DEPOSIT OF RS.71,000/- AND NO EVIDENCE WAS PRODU CED IN THIS REGARD. SINCE THE ASSESSEE HAD SURRENDERED THIS INCOME AND SAME WAS A SSESSED AS INCOME FROM OTHER SOURCE, THE BENEFIT OF THE SAME, I.E., RS.71, 000/- BEING THE COST OF SHARE COULD NOT BE GIVEN IN FAVOUR OF THE ASSESSEE. THE L D. CIT(A), ACCORDINGLY, HELD ITA NO. 35/AGRA/2011 3 THAT THE SALE AND PURCHASE OF SHARES WAS NON-GENUIN E, THEREFORE, THIS GROUND WAS DISMISSED. 4. THE ASSESSEE, IN THE WRITTEN SUBMISSIONS, SUBMIT TED THAT THE AO IN THE REMAND REPORT DATED 29.10.2010 MENTIONED THAT NOW T HE ASSESSEE HAS PRODUCED EVIDENCE OF DEPOSIT OF RS.71,000/- AS SHARE COST MO NEY. THEREFORE, THE ADDITION IS UNJUSTIFIED. TWO ORDERS OF THE TRIBUNAL HAVE BEEN R EFERRED TO IN THE CASE OF DR. R.C. MISHRA VS. ACIT AND SMT. MUKESH KUMARI AGARWAL VS. ACIT PLACED AT PAGES 6/1 AND 7/1 OF THE PAPER BOOK. ON THE OTHER H AND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE AO MADE ADDITION OF RS.5,99,015/- ON ACCOUNT OF INCOME FROM UNDISCLOSED /UNEXPLAINED SOURCES, AS SHOWN FOR LONG TERM CAPITAL GAINS, U/S. 68 OF THE I T ACT. THE AO CALLED FOR THE DETAILS OF PURCHASE AND SALE OF SHARES. THE ASSESSE E IN ORDER TO PURCHASE PEACE OF MIND AND SATISFACTION OF THE DEPARTMENT, SURRENDERE D THE AMOUNT OF RS.5,99,015/- LESS COST OF SHARES, WHICH WAS NOT KNOWN TO THE ASS ESSEE DUE TO OLD RECORDS AND NOT TRACEABLE. THE ASSESSEE SURRENDERED THIS AMOUNT AND AGREED TO PAY TAX AND INTEREST THEREON. THE AO, THEREFORE, HELD THAT SINC E THE ASSESSEE COULD NOT PROVE THE SALE OF SHARES AND GENUINENESS OF RECEIPT OF MO NEY FROM THE SALE OF SHARES, ITA NO. 35/AGRA/2011 4 THEREFORE, ADDITION WAS MADE U/S. 68 OF THE IT ACT OF WHOLE OF THE AMOUNT OF RS.5,99,015/-, BEING UNEXPLAINED MONEY. THE ASSESSE E RAISED ADDITIONAL GROUND OF APPEAL BEFORE THE LD. CIT(A) SEEKING DEDUCTION O F THE COST OF SHARES OF RS.71,000/-. THE LD. CIT(A) ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD RIGHTLY CONFIRMED THE ADDITION. SINCE THE AS SESSEE SURRENDERED WHOLE OF THE AMOUNT FOR THE PURPOSE OF TAXATION BEFORE THE A O AND ADDITION HAS BEEN MADE U/S. 68 BEING INCOME FROM UNDISCLOSED SOURCES, THER EFORE, NO BENEFIT FOR THE COST OF SHARES CAN BE GIVEN TO THE ASSESSEE AT THIS STAG E. THE FINDINGS OF FACT RECORDED BY THE AUTHORITIES BELOW HAVE NOT BEEN DISPUTED BY THE ASSESSEE IN ANY MANNER. MERELY BECAUSE ADDITIONAL EVIDENCE WAS PRODUCED IN THE REMAND PROCEEDINGS ABOUT THE COST OF SHARE MONEY, WOULD NOT DISPROVE T HE FINDINGS OF THE AO THAT THE ADDITION WAS MADE OF WHOLE OF THE AMOUNT BECAUSE TH E ASSESSEE COULD NOT PROVE GENUINENESS OF THE SALE CONSIDERATION OF THE SHARES . FURTHER, WHEN THE ASSESSEE MADE SURRENDER OF THE ENTIRE AMOUNT, THE ASSESSEE C ANNOT BE SAID TO BE HAVING ANY GRIEVANCE AGAINST THE FINDING OF THE AO AND AS SUCH , THE APPEAL OF THE ASSESSEE WOULD NOT BE MAINTAINABLE ON SUCH AN ISSUE. SINCE A GREED ADDITION IS MADE, THEREFORE, THE LD. CIT(A) SHOULD NOT HAVE CONSIDERE D THE ADDITIONAL GROUND OF APPEAL OF THE AFORESAID NATURE AT THE FIRST APPELLA TE STAGE. WE ARE FORTIFIED IN OUR VIEW BY THE JUDGMENTS IN THE CASE OF JIVATLAL PURTA PSHI VS. CIT, 65 ITR 261 (BOM.), CIT VS. VAMADEVAN BHANU, 330 ITR 559 (KER.) AND BANTA SINGH KARTAR ITA NO. 35/AGRA/2011 5 SINGH VS. CIT, 125 ITR 239 (P&H). CONSIDERING THE A BOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN MODIFIED GROUND NO. 3 OF APPEAL O F THE ASSESSEE. THE SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY