Smt. Sunita Thapar, Ludhiana V. DCIT, C-5, Ludhiana

ITA 378/CHANDI/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4903 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Sham transactions; Reason to believe

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 376 TO 380/CHD/2018 (ASSESSMENT YEARS: 2009-10 TO 2010-11 & 2012-13 TO 2014-15) SMT. SUNITA THAPAR VS. THE DCIT C/O M/S AMAR UDYOG C-5, LUDHIANA GT ROAD, DHANDARI KALAN PUNJAB LUDHIANA, PUNJAB PAN NO. ABNPT2368J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUDHIR SEHGAL REVENUE BY : SHRI MANOJ KUMAR DATE OF HEARING : 19/06/2018 DATE OF PRONOUNCEMENT : 26/06/2018 ORDER PER DIVA SINGH, J.M. BY THESE 5 APPEALS FILED BY THE ASSESSEE PERTAINING TO 2009 10 TO 2014 15 ASSESSMENT YEARS THE CORRECTNESS OF THE SEPARATE ORDERS DATED 05/02/2018, OF CIT(A)-2, LUDHIANA IS ASSAILED ON IDENTICAL GROUNDS . IT WAS A COMMON STAND OF THE PARTIES BEFORE THE BENCH THAT THE GROUNDS RAISE D IN EACH OF THESE APPEALS ARE IDENTICAL. ACCORDINGLY FOR THE SAKE OF CONVENIE NCE GROUNDS FROM ITA 376/CHD/2018 ARE BEING REPRODUCED HEREUNDER: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER WITH REGARD TO THE REOPENING OF THE CASE U/S 147/148 OF THE ACT. 2. THAT THE LD. CIT(A), HAS FURTHER ERRED IN NOT CONSI DERING THAT THERE WAS NO COGENT MATERIAL WITH THE ASSESSING OFFICER TO FORM HIS BELIEF AND REASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSM ENT. 3. THAT THE LD. ASSESSING OFFICER HAS MERELY ACTED ON THE OBSERVATION OF THE INVESTIGATION WING AND THERE IS NO INDEPENDENT APPL ICATION OF MIND BY THE CONCERNED ASSESSING OFFICER. 4. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN HOLDING TH AT THE APPELLANT COULD NOT BRING ANY MATERIAL TO PROVE THE GENUINENESS OF TRANSACTION AND WHEREAS THE ASSESSEE SUBMITTED ALL THE DOCUMENTARY EVIDENCES TO PROVE BEYOND ANY IOTA OF DOUBT THAT THE PURCHASE AND SALE OF SHARES OF THE C OMPANY WERE GENUINE AND HENCE THE ADDITION OF RS.76,009/- AS CONFIRMED BY T HE CIT(A) IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO. 376 TO 380/CHD/2018 2 OF 3 2. THE LD. AR INVITING ATTENTION TO THE IMPUGNED OR DER AS WELL AS THE ASSESSMENT ORDER SUBMITTED THAT THE CONCLUSIONS DRA WN BY THE ASSESSING OFFICER AND THE CIT(A) FOR REOPENING THE CASE IS ON THE OPI NION THAT SINCE THE ASSESSEE HAD TRANSACTIONS WITH M/S COMPACT DISC. PVT. LIMITE D INCOME HAS ESCAPED ASSESSMENT AS THE SAID COMPANY WAS A SHAM COMPANY. FOR THE SAID PURPOSES ATTENTION WAS INVITED TO THE RESPECTIVE ORDERS OF T HE TAX AUTHORITIES. IT WAS HIS SUBMISSION THAT NOTHING HAS BEEN PLACED ON RECORD B Y THE DEPARTMENT OR CONFRONTED TO THE ASSESSEE THAT THE CONCLUSIONS WER E BASED ON FACTS AND NOT CONJECTURE OR SURMISES. THE MERE DISCUSSION ON RECO RD IS THAT THE ASSESSING OFFICER HAS REFERRED TO THE FACT THAT THE ASSESSING OFFICER IN THE CASE OF M/S COMPACT DISC. PVT. LIMITED HAS REOPENED THE ASSESSMENT. IT WAS HIS SUBMISSION THAT THE ASSESSEE HAS BEEN PETITIONING THE ASSESSING OFFICER TO CONFRONT THE ASSESSEE WITH THE RELEVANT FACTS AND EVIDENCES TO SUPPORT THE CON CLUSIONS DRAWN DESPITE THAT TILL DATE NOTHING HAS BEEN SHARED. THE ASSESSEE IT WAS SUBMITTED HAS TRANSACTED OVER THE YEARS BY BUYING AND SELLING SHARES OF THE SAID CONCERN IN THE NORMAL COURSE AND WHAT IS THE BASIS OF THE CONCLUSION OF T HE AO IT WAS SUBMITTED IS NOT AVAILABLE ON RECORD. ACCORDINGLY REFERRING TO THE O RDERS IT WAS HIS SUBMISSION THAT THERE IS NO DISCUSSION ON THE SAID ASPECT IN THE OR DERS. IN THE CIRCUMSTANCES IT WAS HIS PRAYER THAT THE ASSESSEE EITHER MAY BE GRAN TED TIME OR ALTERNATELY RELEVANT INFORMATION BE DIRECTED TO BE PLACED BEFOR E THE BENCH OR THE APPEAL OF THE ASSESSEE BE ALLOWED BY GRANTING NECESSARY RE LIEF IN ACCORDANCE WITH LAW. 3. THE LD. SR. DR THOUGH PLACED HEAVY RELIANCE UPON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A), HOWEVER FOR WANT OF RELEVANT DISCUSSION IN THE ORDERS WAS UNABLE TO SUPPORT THE CONCLUSIONS DRAWN. ACCORDINGLY IT WAS HIS PRAYER THAT THE MATTERS MAY BE REMANDED HOWEVER REL IEF AT THIS JUNCTURE ON THE PLEADINGS OF THE ASSESSEE IT WAS SUBMITTED MAY NOT BE GRANTED. 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD, ON GOING THROUGH THE SAME I FIND THAT THE A SSESSING OFFICER HAS REOPENED THE ASSESSMENT IN THE FACTS OF THE PRESENT CASE ON THE BASIS OF THE CONCLUSIONS OF THE ASSESSING OFFICER IN THE CASE OF M/S COMPACT DISC. PVT. LIMITED. I FIND THAT THERE IS NO REFERENCE TO ANY F ACT EVIDENCE OR MATERIAL IN FACT THERE IS NO DISCUSSION WHATSOEVER IN THE ORDERS WHI CH CAN LEAD TO THE CONCLUSION THAT THE TRANSACTIONS OF BUYING AND SELLING SHARES OF THE SAID CONCERN BY THE ITA NO. 376 TO 380/CHD/2018 3 OF 3 ASSESSEE PER SE ARE SHAM TRANSACTIONS. SINCE THE CO RRECTNESS OF THE ASSESSING OFFICERS CONCLUSION ASSAILED IN APPEAL ARE UNDER C HALLENGE IN THE PRESENT PROCEEDINGS AND IN THE ABSENCE OF RELEVANT DISCUSSI ON THE ISSUE CANNOT BE ADJUDICATED UPON. THE PARTIES WERE ALSO UNABLE TO A DDRESS THE FATE OF THE REOPENED ASSESSMENT IN THE CASE OF M/S COMPACT DISC . PVT. LIMITED. THUS IN THE ABSENCE OF RELEVANT DISCUSSION IN THE ORDERS THE V ERACITY OF THE EVIDENCES RELIED UPON BY THE ASSESSING OFFICER AND THE CIT(A) CANNOT BE TESTED AT THIS STAGE. ACCEPTING THE ORAL PRAYER OF THE PARTIES BEFORE THE BENCH THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO PASS AN ORDER IN ACCORDANCE WITH LAW DENOVO ADDRESSING THE FACTS AND EVIDENCES AND AFTER DULY CONFRONTING THE SAME TO THE ASSESSEE. NE EDLESS TO STATE THAT A REASONABLE OPPORTUNITY OF BEING HEARD IS TO BE PROV IDED TO THE ASSESSEE BEFORE THE PASSING OF THE ORDER. THE ASSESSEE IS ALSO DIRE CTED TO ENSURE FULL AND PROPER PARTICIPATION IN THE PROCEEDINGS BEFORE THE AO AS F AILING WHICH IT IS MADE CLEAR THE AO WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. SINCE THE PRAYER OF THE PARTIES AND THE MATERIAL AVAILABLE ON RECORD IN THE RESPECTIVE ORDERS REMAINS IDENTICAL, ACCORDINGLY IT A NO. 376/CHD/2018 TO ITA NO. 380/CHD/2018 ARE ALSO RESTORED TO THE FILE OF THE A O WITH IDENTICAL DIRECTIONS. SAID ORDER WAS PRONOUNCED AT THE TIME OF HEARING IT SELF IN THE PRESENCE OF THE PARTIES. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED : 26/06/2018 DNS/ AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR