AKSHATA BIRAWAT, MUMBAI V. ITO 17(3)1, MUMBAI

ITA 4204/MUM/2013

• Counselvise Citation: 420419914 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 24-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MISRA
• Assessee Lawyers: AJAY NAGPAL
• Keywords: Income from undisclosed sources; Difference of opinion
• Section: 153A

Judgement Text

, ' INCOME TAX APPELLATE TRIBUNAL,MUMBAI - A,BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SA NJAY GARG,JUDICIAL MEMBER /. ITA NOS. 4 1 90 - 92 /MUM/201 3 , / ASSESSMENT YEAR S: 200 4 - 0 5 TO 06 - 07 SHRI KIRANRAJ BIRAWAT 105/106, 305 - 306, B - BLOCK DEEPAK JYOTI T OWER G.D. AMBEDKAR MARG, KALACHOWKI MUMBAI - 400 033. PA N: AACPB 9890 K VS A CIT - 1 7(3) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI - 400 012 . /. ITA NOS.419 3 - 9 4 /MUM/2013, / ASSESSMENT YEARS: 2005 - 06&06 - 07 SHRI ANKIT BIRAWAT 105/106, 305 - 306, B - BLOCK DEEPAK JYOTI T OWER G.D. AMBEDKAR MARG, KALACH OWKI MUMBAI - 400 033. PAN: AHXPB 3007 A VS ACIT - 17(3) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI - 400 012 . /. ITA NOS.4 200 - 01 /MUM/2013, / ASSESSMENT YEARS:200 5 - 0 6& 06 - 07 SMT. A VA NI BIRAWAT 105/106, 305 - 306, B - B LOCK DEEPAK JYOTI TOWER G.D. AMBEDKAR MARG, KALACHOWKI MUMBAI - 400 033. PAN: AHJPB 5561 H VS ACIT - 17(3) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI - 400 012 . /. ITA NOS.4202 - 03/MUM/2013, / ASSESSMENT YEARS:2005 - 06&06 - 07 SHRI ANISH BIRAWAT 105/106, 305 - 306, B - BLOCK DEEPAK JYOTI T OWER G.D. AMBEDKAR MARG, KALACHOWKI MUMBAI - 400 033. PAN: AHXPB 3008 R VS ACIT - 17(3) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI - 400 012 . /. ITA NOS.4205 - 06/MUM/2013, / ASSESSMENT YEARS:2005 - 06&06 - 07 SMT. KALABEN BIRAWAT 105/106, 305 - 306, B - BLOCK DEEPAK JYOTI T OWER G.D. AMBEDKAR MARG, KALACHOWKI MUMBAI - 400 033. PAN: ADSPB 9905 A VS ACIT - 17(3) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI - 400 012 . /. ITA NO. 4204 /MUM/2013, / ASSESSMENT YEAR2006 - 07 SMT. AKSH A TA BIRAWAT 105/106, 305 - 306, B - BLOCK DEEPAK JYOTI T OWER G.D. AMBEDKAR MARG, KALACHOWKI MUMBAI - 400 033. PAN: AIYPB 3225 E VS ACIT - 17(3) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI - 400 012 . ( / APP ELLANT ) ( / RESPONDENT ) 4190 BIRAWAT GROUP 2 /ASSESSEE BY : SH . AJAY NAGPAL / REVENUE BY : MS. S. MISRA / DATE OF HEARING : 1 6 - 09 - 2015 / DATE OF PRONOUNCEMENT : 23 - 09 - 2015 , 1961 254 ( 1 ) ORDER U/S.254(1)OF THE INCOME - TAX ACT,1961(A CT) PER BENCH - CHALLENGING THE ORDERS DATED 29.03.2013 OF CIT(A) - 29 ,MUMBAI THE ABOVE MENTIONED ASSESSEE S HAVE FILED APPEALS FOR AY.200 4 - 0 5 TO 2006 - 07 . THEY HAVE RAISED ALMOST IDENTICAL GROUNDS OF APPEAL - THE ONLY DIFFERENCE IS THE AMOUNTS I NVOLVED . AS THE ISSUES RAISED BY THE GROUP MEMBERS ARE ALMOST MORE OR LESS SAME,SO,FOR THE SAKE OF CONVENIENCE WE ARE ADJUDICATING ALL THE APPEALS BY A SINGLE COMMON ORDER. ITA NOS.4190/MUM/2013,AY.2004 - 05: GROUND OF APPEAL FILE D BY KIRANRAJ BIRAWAT READ AS UNDER: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD, CIT(A) ERRED IN CONFIRMING THE PENALTY LEVIED BY THE AO U/S,271(1)(C) FOR RS.6,71,729/ - / - 2.THE LD. CIT(A) FAILED TO APPRECIATED THAT: A) THE AP PELLANT HAS NEITHER CONCEALED THE PARTICULARS OF HIS INCOME NOR FURNISHED ANY INACCURATE PARTICULAR OF SUCH INCOME; B) ALL THE TRANSACTIONS OF SHARES RESULTING IN LONG TERM/ SHORT TERM CAPITAL GAINS ARE GENUINE AND SUPPORTED BY SUFFICIENT MATERIALS. C) NOTH ING INCRIMINATING WAS FOUND IN THE COURSE OF THE SEARCH WHICH SUGGEST THAT THE APPELLANT OR HIS FAMILY MEMBERS HAD INDULGED IN ANY BOGUS TRANSACTION; D) NO SERVICE CHARGES WAS PAID BY THE APPELLANT NOR ANY EVIDENCE WAS FOUND IN THE COURSE OF THE SEARCH; E) IF THERE IS DIFFERENCE OF OPINION ON A PARTICULAR ISSUE THEN THERE CANNOT BE A CASE OF CONCEALMENT; AND F) MERE REJECTION OF BONAFIDE EXPLANATION PER SE WILL NOT BE SUFFICIENT TO ATTRACT PENALTY U/S,271(1)(C), 3.IN REACHING TO THE CONCLUSION AN D CONFIRMING THE PENALTY LEVIED BY THE AO, THE CIT(A) OMITTED TO CONSIDER RELEVANT FACTORS, CONSIDERATIONS, PRINCIPLES AND EVIDENCES WHILE SHE WAS OVERWHELMED, INFLUENCED AND PREJUDICED BY IRRELEVANT CONSIDERATIONS AND FACTORS. 4.THE PENALTY LEVIED BY THE AO AND CONFIRMED BY THE LD, CIT(A) IS INVALID OR EXCESSIVE AND UNREASONABLE. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR DELETE THE ABOVE GROUND OR GROUNDS OF APPEAL. BRIEF FACTS : 2. ALL THESE ASSESSEES BELONG TO BIRAWAT GROUP AND ALL OF THEM ARE FAMILY MEMBERS.AN ACTION , U/S.132 OF THE ACT , WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF BIRAWAT GROUP. CONSEQUENT THERETO, THE PRESENT ASSESSMENTS WERE COMPLETED BY THE AO U/S 153A OF THE ACT IN THE HANDS OF THE ABOVE MENTIONED ASSESSE ES.THEY FILED RETURNS OF INCOME,WHEREIN,THEY DECLARED INCOME ARISING ON SALE OF SHARES UNDER THE HEAD CAPITAL GAINS.ON THE BASIS OF AVAILABLE MATERIAL,THE AO ASSESSED THE ENTIRE AMOUNT OF SALE PROCEEDS OF SHARES AS INCOME OF THE ASSESSEES UNDER THE HEAD IN COME FROM OTHER SOURCES.THE ASSESSEES HAVE ALSO PURCHASED AND SOLD SHARES OF COMPANIES LIKE ARAVIND MILLS,MAHINDRA & MAHINDRA, ORIENTAL BANK, TELCO ETC. HOWEVER, THE AO ASSESSED THE SALE PROCEEDS RELATING TO THEM ALSO AS INCOME FROM OTHER SOURCES.HE RECOGN ISED THE DATE OF PURCHASE OF SHARES AS THE DATE ON WHICH THEY WERE CREDITED IN THE DEMAT ACCOUNTS AND ACCORDINGLY EXPRESSED THE VIEW THAT THESE ASSESSEES HAD NOT HELD OR POSSESSED SHARES FOR A PERIOD EXCEEDING ONE YEAR IN ORDER TO CLAIM THE GAINS AS LONG T ERM 4190 BIRAWAT GROUP 3 CAPITAL GAINS.THE AO FURTHER HELD THAT THEY WOULD HAVE SPENT 5% OF THE GROSS AMOUNT FOR OBTAINING ACCOMMODATION BILLS F OR PURCHASE AND SALE OF SHARES. ACCORDINGLY HE ASSESSED 5% OF THE GROSS SALE RECEIPTS AS UNEXPLAINED MONEY IN POSSESSION OF THE ASSESS EE. HE ALSO INITIATED PENALTY PROCEEDINGS U/S.271(1)(C)OF THE ACT.VIDE HIS ORDER,DATED 22.03.2011,HE IMPOSED A PENALTY OF RS.6,71,729/ - FOR CONCEALING THE PARTICULARS OF INCOME AND FURNISHING INACCURATE PARTICULARS.IN THE APPELLATE PROCEEDINGS THE FIRST APPE LLATE AUTHORITY(FAA)CONFIRMED THE ORDER OF THE AO IMPOSING CONCEALMENT PENALTY . 3. MEANWHILE, THE M ATTER TRAVELLED UP TO THE TRIBUNAL AND ON 20.02.2015, IT DECIDED THE GROUP QUANTUM APPEALS, (ITA.S/982,989 - 90/MUM/2010 - AY.2004 - 05 TO 06 - 07)INCLUD ING THE APPEAL OF THE ASSESSEE , AS UNDER: 27.IN VIEW OF THE FOREGOING DISCUSSIONS,WE ARE OF THE CONSIDERED VIEW THAT THERE WAS NO CREDIBLE MATERIAL WITH THE DEPARTMENT TO DISPROVE THE CLAIM OF LONG TERM CAPITAL GAINS MADE BY THESE ASSESSEES IN THEIR RESPECTIVE RETURNS O F INCOME. ACCORDINGLY WE SET ASIDE THE ORDERS OF LD CIT(A) PASSED IN THE RESPECTIVE HANDS OF THE ASSESSEES HEREIN ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE THE ASSESSMENT OF GROSS SALE RECEIPTS AS INCOME FROM OTHER SOURCES IN ALL THE YEARS U NDER CONSIDERATION AND ACCORDINGLY DIRECT THE AO TO ACCEPT THE LTCG DECLARED BY THESE ASSESSEES IN ALL THE YEARS UNDER CONSIDERATION. 28.SINCE WE HAVE UPHELD THE DISCLOSURE OF LTCG, THE QUESTION OF ASSESSING 5% OF THE GROSS SALE RECEIPTS AS UNACCOUNTED INC OME OF ASSESSEES DOES NOT ARISE. ACCORDINGLY, WE SET ASIDE THE ORDERS OF LD CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE THIS ADDITION IN THE HANDS OF ALL THE ASSESSEES IN ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. 4. BEFORE US, THE AU THORISED REPRESENTATIVE(AR)STATED THAT QUANTUM APPEALS HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSES OF THE GROUP,THAT THE TRIBUNAL HAD CONCLUDED THE ISSUE DECISIVELY.HE REFERRED TO THE ORDER OF THE TRIBUNAL DATED 20.02.2015(SUPRA)AND THE ORDER PASSED BY IT WITH REFERENCE TO THE MA.S.FILED BY THE MEMBERS OF THE GROUP ON 01.05.2015. THE DEPARTMENTAL REPRESENTATIVE(DR)CONCEDED THAT THE MATTER HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY TH E TRIBUNAL.WE FIND THAT THE TRIBUNAL HAS DIRECTED THE AO TO DELETE THE ASSESSMENT OF GROSS SALE RECEIPTS AS INCOME FROM OTHER SOURCES IN ALL THE YEARS UNDER CONSIDERATION AND ACCORDINGLY DIRECT THE AO TO ACCEPT THE LTCG /STCG DECLARED BY THESE ASSESSEES IN ALL THE YEARS UNDER CONSIDERATION. IT HAS ALSO DIRECTED THE AO TO DELETE THE ADDITION MADE ON ACCOUNT OF 5% OF GROSS SALE RECEIPTS AS UNACCOUNTED INCOME.CONSIDERING THE ABOVE FACTS,PENALTY ORDER PASSED BY THE AO AND CONFIRMED BY THE FAA FOR THE YEAR UNDER APPEAL WILL NOT SURVIVE. REVERSING THE ORDER OF THE FAA,EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESSEE IS DECIDED IN HIS FAVOUR. 5. FOLLOWING OUR ORDER FOR THE AY.2004 - 05,WE DECIDE THE APPEAL FOR THE REMAINING TWO AY.S. IN FAVOUR OF THE ASSESSEE . ITA NOS. 4193 - 94,4200 TO 4206/MUM/2013: APPEALS FILED BY ALL THE OTHER ASSESSES FOR VARIOUS YEARS ARE ALLOWED FOR THE REASONS MENTIONED AT PARAGRAPH 4 OF OUR ORDER. AS A RESULT,APPEALS FILED BY THE ALL THE ASSESSES FOR ALL THE AY.S. STAND ALLOWED . . . ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD SEPTEMBER,2015. 23 , 2015 SD/ - SD/ - ( / SANJAY GARG) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 4190 BIRAWAT GROUP 4 / MUMBAI, /DATE: 23 . 09 .2015 . . . JV. SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.