Aditya Gangulee, Kolkata V. ACIT, Circle - 50, Kolkata, Kolkata

ITA 443/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70439 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 21-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K DAS
• Assessee Lawyers: D BHADRA
• Keywords: Income from undisclosed sources

Judgement Text

I.T.A. NO.: 443/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 3 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA CORAM : SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI ABRAHAM P. GEORGE (ACCOUNTANT MEMBER) I.T.A. NO.: 443/KOL./ 2012 ASSESSMENT YEAR : 2007-2008 ADITYA GANGULEE,................................. .........APPELLANT BHADRA & BHADRA, CHARTERED ACCOUNTANT, 8/2, KIRAN SHANKAR ROY ROAD, KOLKATA-700 001 [PAN :AKSPG 1892 J] -VS.- DEPUTY COMMISSIONER OF INOME TAX,.................. ..........RESPONDENT CIRCLE-50, MANICKTOLA CIVIC CENTRE, UTTRAPAN SHOPPING COMPLEX, DS-II, 2 ND FLOOR, KOLKATA-700 054 APPEARANCES BY: SHRI D. BHADRA, A.R., FOR THE ASSESSEE SHRI A. K. DAS, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : DECEMBER 09, 2013 DATE OF PRONOUNCING THE ORDER : DECEMBER 09, 2013 O R D E R PER ABRAHAM P. GEORGE : 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST AN ORDER DATED 25 TH NOVEMBER, 2011 OF COMMISSIONER OF INCOME TAX (APPEA LS)-XXXII, KOLKATA FOR ASSESSMENT YEAR 2007-08. GROUNDS RAISED ARE AS UNDER :- (1) FOR THAT THE LD. CIT(A) ERRED IN PARTLY CONFIR MING THE ADDITION OF RS.1,67,020/- ON ACCOUNT OF ALLEGED INCOME FROM UNDISCLOSED SOURCE ARISING OUT OF MISTA KE WHEREBY A SHORT-TERM CAPITAL GAIN OF RS.29,190/- WA S INADVERTENTLY MISSED OUT AS THE TRANSACTION WAS WRONGLY CONSIDERED TO BE A LONG-TERM ONE. I.T.A. NO.: 443/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 3 2 (2) FOR THAT THE LD. CIT(A) ERRED IN FORMING HIS OP INION THAT ......THE ASSESSEE HAD NOT BEEN ABLE TO EXPLA IN THE SOURCE OF PURCHASE OF THOSE SHARES WHILE THERE IS NO SUCH FINDINGS IN THE ASSESSMENT ORDER PASSED BY THE LD. DCIT. 2. FACTS APROPOS ARE THAT ASSESSEE HAVING INCOME FR OM CAPITAL GAINS AND OTHER SOURCES HAD SHOWN UNDER THE HEAD LONG-TE RM CAPITAL GAINS, A SUM OF RS.1,96,210/- ARISING OUT OF SALE OF SHARES OF ONE M/S. CUMMINS INDUSTRIES LTD. ON VERIFICATION, ASSESSING OFFICER FOUND THAT THESE SHARES WERE ACQUIRED BY THE ASSESSEE ONLY ON 27.05.2006. F URTHER AS PER THE ASSESSING OFFICER THE ACTUAL CAPITAL GAINS CAME TO RS.29,190/- ONLY SINCE PURCHASE PRICE WAS RS.1,67,020/- AND THE SALE PRICE WAS RS.1,96,210/-. ASSESSING OFFICER THEREFORE, TREATED RS.29,190/- AS SHORT-TERM CAPITAL GAINS. AT THE SAME TIME, THE SUM OF RS.1,96,210/- W AS TREATED AS INCOME FROM UNDISCLOSED SOURCES. 3. ASSESSEE MOVED IN APPEAL BEFORE LD. CIT(APPEALS) AGAINST ABOVE. LD. CIT(APPEALS) FOUND THAT THE SHARES ORIGINALLY CLAIM ED TO HAVE BEEN PURCHASED ON 23.07.2004 ALREADY STOOD SOLD LONG BAC K. SHARES WHICH WERE SOLD ON 16.01.2007 FOR RS.1,96,210/- WERE IN FACT S HARES OF M/S. CUMMINS INDUSTRIES LTD. PURCHASED ON 05.05.2006 FOR A CONSI DERATION OF RS.1,67,020/-. LD. CIT(APPEALS) HELD THAT SINCE RS. 29,190/- WAS CONSIDERED AS SHORT-TERM CAPITAL GAINS WHAT COULD B E ADDED AS UNDISCLOSED INCOME OF THE ASSESSEE WAS ONLY THE PUR CHASE CONSIDERATION OF RS.1,67,020/- PAID ON 05.05.2006. AS PER LD. CIT (APPEALS) ASSESEE WAS NOT ABLE TO EXPLAIN THE SOURCE OF PURCHASE. 4. NOW BEFORE US, LD. A.R. SUBMITTED THAT ASSESSING OFFICER HAD NOT AT ANY POINT OF TIME REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE FOR THE PURCHASE OF SHARES OF CUMMINS INDUSTRIES LTD. LD. C IT(APPEALS), THEREFORE, HAD WENT OFF-TANGENT. 5. PER CONTRA, LD. D.R. SUPPORTED THE ORDER OF AUTH ORITIES BELOW. I.T.A. NO.: 443/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 3 3 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. FROM THE RECORD, WE FIND THAT THERE IS NO D ISPUTE THAT SHARES OF M/S. CUMMINS INDUSTRIES LTD. SOLD BY THE ASSESSEE O N 16,01.2007, WERE PURCHASED BY IT ON 05.05.2006. THERE IS NO DISPUTE THAT THE PURCHASE PRICE OF SHARES WAS RS.1,67,020/- AND SALE CONSIDER ATION RECEIVED WAS RS.1,96,210/-. THEREFORE, THERE CANNOT BE ANY QUARR EL ON THE DIFFERENCE OF RS.29,190/- BEING TREATED BY THE ASSESSING OFFICER AS SHORT-TERM CAPITAL GAINS. HOWEVER, IN SO FAR AS ADDITION OF RS.1,67,02 0/- IS CONCERNED, IT IS TRUE THAT ASSESSEE WAS NOT GIVEN ANY CHANCE TO EXPL AIN THE SOURCE OF PURCHASE CONSIDERATION PAID BY HIM ON 05.05.2006. I N THE FITNESS OF THE THINGS, WE ARE OF THE OPINION THAT THE MATTER REQUI RES ADJUDICATION AFRESH. WE, THEREFORE, SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND REMIT THE ISSUE IN SO FAR AS IT RELATES TO SOURCE FOR INVESTM ENT OF RS.1,67,020/- IN THE SHARES OF M/S. CUMMINS INDUSTRIES LTD., BACK TO THE FILE OF ASSESSING OFFICER FOR CONSIDERATION AFRESH IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH DAY OF DECEMBER, 2013. SD/- SD/- MAHAVIR SINGH ABRAHAM P. GEORGE (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 9 TH DAY OF DECEMBER, 2013 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.