Appeal details
Counselvise Citation
[2011] 140 COUNSELVISE.COM (IT) 50372 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 19 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
12-10-2011
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
12-10-2011
Assessment Year
2001-2002
Appeal Filed On
23-09-2010
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.400/AGR/2010 ASSESSMENT YEAR: 2002-03 INCOME TAX OFFICER 1(1), VS. SHRI SUSHIL KUM AR MAGAN, HUF, AGRA. 3/29, KHANDARI ROAD, AGRA. (PAN: AACHS 0739 J). ITA NO.401/AGR/2010 ASSESSMENT YEAR: 2002-03 INCOME TAX OFFICER 1(1), VS. SHRI ANIL KUMAR MAGAN, HUF, AGRA. 3/29, KHANDARI ROAD, AGRA. (PAN: NOT MENTIONED). (APPELLANT) (RESPONDENTS) APPELLANT BY : SHRI A. K. SHARMA, JR. D.R. RESPONDENTS BY : SHRI MAHESH AGARWAL, C.A. DATE OF HEARING : 12.10.2011 DATE OF PRONOUNCEMENT : 12.10.2011 ORDER PER H.S. SIDHU, J.M. : BOTH THESE APPEALS HAVE BEEN FILED BY THE REVENUE A GAINST TWO DIFFERENT IMPUGNED ORDERS DATED 17.06.2010 PASSED BY THE LD. CIT(A)-I, AGRA ON THE FOLLOWING GROUNDS :- ITA NOS.400 & 401/AGR/2010 A.Y. 2001-02 2 GROUNDS IN ITA NO.400/AGR/2010 1. THAT THE CIT(A)-II, AGRA HAS ERRED IN LAW AND O N THE FACTS OF THE CASE IN DELETING THE ADDITION OF ` 9,25,277/- ( ` 5,66,777/- + ` 3,40,357/- + ` 18,143/-) MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF SHARES AND UNDISCLOSED BROKERS COM MISSION THEREON TO OBTAIN ABOVE ENTRIES EVEN WHEN THE ASSESSEE DID NOT DISCHARGE HIS ONUS TO PROVE THE GENUINENESS OF SHARE TRANSACTION RECEIPT; 2. THAT THE ORDER OF THE CIT(A)-1, AGRA IS ERRONEOU S IN LAW AND ON THE FACTS OF THE CASE AND THAT THE ORDER OF THE ASS ESSING OFFICER BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY GROUND DURING HE APPELLATE PROCEEDINGS ; 4. THE DEPARTMENT HAS FILED APPEAL BEFORE THE HONB LE ITAT ON IDENTICAL ISSUES IN OTHER CASES. GROUNDS IN ITA NO.401/AGR/2010 1. THAT THE CIT(A)-II, AGRA HAS ERRED IN LAW AND O N THE FACTS OF THE CASE IN DELETING THE ADDITION OF ` 9,25,542/- ( ` 5,67,055/- + ` 3,40,358/- + ` 18,129/-) MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF SHARES AND UNDISCLOSED BROKERS COM MISSION THEREON TO OBTAIN ABOVE ENTRIES EVEN WHEN THE ASSESSEE DID NOT DISCHARGE HIS ONUS TO PROVE THE GENUINENESS OF SHARE TRANSACTION RECEIPT; 2. THAT THE ORDER OF THE CIT(A)-1, AGRA IS ERRONEOU S IN LAW AND ON THE FACTS OF THE CASE AND THE ORDER OF THE ASSESSIN G OFFICER BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY GROUND DURING HE APPELLATE PROCEEDINGS ; 4. THE DEPARTMENT HAS FILED APPEAL BEFORE THE HONB LE ITAT ON IDENTICAL ISSUES IN OTHER CASES. ITA NOS.400 & 401/AGR/2010 A.Y. 2001-02 3 2. THE FACTS NARRATED BY THE DEPARTMENT IN BOTH THE CASES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUES IN DISPUTE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE ORDER DATED 31.03.2009 PASSED BY T HIS BENCH IN THE CASE OF SHRI RAJESH GARG VS. ITO IN ITA NO.254/AGR/2005 FOR THE ASSESSMENT YEAR 2001-02. HE FURTHER STATED THAT THIS BENCH HAS ALSO FOLLOWED THE SAID ORDER IN VARIOUS CASES AND DISMISSED THE APPEALS FILED BY THE DEPARTMENT. HE REQUESTED THAT THE APPEALS FILED BY THE DEPARTMENT MAY BE DISMISSED. 4. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY, THE ORDER DATED 31 ST MARCH, 2009 PASSED BY THIS BENCH IN THE CASE OF SMT. SEEMA GARG, SHRI RAM PRAKASH GARG, HUF & SHRI RAJESH GARG VS. ITO IN ITA NOS.252, 253 & 254/AGR/2005 RESPECTIVELY FOR ASSESSMENT YEAR 2001-02. WE FIND THAT THE LD. CIT(A) HAS PASSED TH E IMPUGNED ORDERS BY FOLLOWING THE ORDER OF THIS BENCH IN THE CASE OF SH RI RAJESH GARG VS. ITO IN ITA ITA NOS.400 & 401/AGR/2010 A.Y. 2001-02 4 NO.254/AGR/2005 FOR THE ASSESSMENT YEAR 2001-02. AFTER GOING THROUGH THE SAID ORDER, WE ARE OF THE CONSIDERED OPINION THAT THE IS SUE IN DISPUTE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THIS BENCH. R ESPECTFULLY FOLLOWING THE ORDER OF THIS BENCH DATED 31 ST MARCH, 2009 (SUPRA), THE APPEALS FILED BY THE REVE NUE ARE DISMISSED. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 12.10.2011). SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 12 TH OCTOBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY
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