ACIT CEN CIR 22, MUMBAI V. PADMADEVI KAINYA, MUMBAI

ITA 5038/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2649 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 03-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 04-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C W ANGOLKAR
• Assessee Lawyers: DR K SHIVRAM
• Keywords: Unexplained cash credit
• Section: 143(3); 153A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI RAMIT KOCHAR , AM ./ ITA NO. 5038/MUM/2013 ( / ASSESSMENT YEAR: 2009 - 10 ) ACIT, CENTRAL CIRCLE - 22 /APPELLANT ROOM NO. 403, 4TH FLOOR AYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 / VS. SMT. PADMADEVI KAINYA / RESPONDENT 60/62, KIKA STREET MUMBAI 400004 ./ PAN - AACPK1626Q / APPELLANT BY: SHRI C.W. ANGOLKAR / RESPONDENT BY : DR. K. SHIVRAM & SHRI RAHUL HAKANI / DATE OF HEARING : 26.10. 2015 / DATE OF PRONOUNCEMENT : 30 .10.2015 / O R D E R PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER OF CIT(A) ON FOLLOWING GROUND: - THAT IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.11,31,160/ - MADE U/S. 68 OF THE IT ACT AS UNEXPLAINED CASH CREDIT AND RS.56,5 58/ - AS EXPENDITURE INCURRED FOR THE ARRANGEMENT, WITHOUT APPRECIATING THE FACTS OF THE CASE AND 2 ITA NO. 5038/MUM/2013 SMT. PADMADEVI KAINYA EVIDENCES ON RECORD PROVING THAT PURCHASE AND SALE OF SHARES WERE ARRANGED TRANSACTIONS. 2. ASSESSEE CLAIMED LONG TERM CAPITAL GAIN OF ` 11,31,160/ - WHICH HAS BEEN CLAIMED AS EXEMPT. ASSESSING OFFICER HELD THE SAID GAIN AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND ALSO ADDED BACK ` 56,558/ - CONSIDERING THE SAME AS EXPENDITURE TOWARDS COMMISSION FOR THE SAID ARRANGEMENT. THE MAT TER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF THE ASSESSEE AND HAVING CONSIDERED THE SAME THE CIT(A) GRANTED RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA, SUBMITTING THAT CIT(A) ERRED IN DELETING THE ADDITION OF ` 11,31,160/ - MADE UNDER SECTION 68 OF THE ACT AS UNEXPLAINED CASH CREDIT AND ` 56,558/ - AS EXPENDITURE INCURRED FOR THE ARRANGEMENT OF THE SAME. ACCORDINGLY THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT OF THE AO BE RESTORED. ON THE OTHER HAND THE LEARNED COUNSEL OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A). 3. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD WE FIND THAT ASSESSING OFFICER HAS HEL D THAT THE TRANSACTION RESULTIN G INTO LONG TERM CAPITAL GAIN ARISING FROM SALE OF 4000 SHARES WAS NOT GENUINE. IN THIS REGARD THE STAND OF THE ASSESSEE FOR MAKING TRANSACTION GENUINE IS AS UNDER: - I) THE SHARES HELD IN 21 ST CENTURY INDIA LTD. WERE DISCLOSED AS INVESTMENT FOR A.Y. 2005 - 06. THE INVESTMENT AS 3 ITA NO. 5038/MUM/2013 SMT. PADMADEVI KAINYA REFLECTED HAS BEEN ACCEPTED BY THE A.O. IN THE ASSESSMENT MADE UNDER S. 143(3) R.W.S. 153A FOR A.Y. 2005 - 06. II) COPY OF CONTRACT NOTE ISSUED BY SHRI PREMLAL ROY EVIDENCES PURCHASE OF SHARES, WHICH HAS NOT BEEN REJECTED OR DISOWNED BY THE A.O. HENCE THERE IS DOCUMENTARY EVIDENCE AVAILABLE FOR PURCHASE OF SHARES AND THE SAME REFLECTED AS INVESTMENT. III) THE SHARES WERE HELD IN THE DEMAT ACCOUNT OF THE ASSESSEE MAINTAINED WITH M/S PRATIK STOCK VISION LTD. AND WERE LATER TRANSFERRED TO DEMAT ACCOUNT MAINTAINED WITH ICICI BANK. IV) CONTRACT NOTE HAS BEEN FILED EVIDENCING SALES THROUGH BROKER OF STOCK EXCHANGE AND PAYMENT RECEIVED THROUGH ACCOUNT PAYEE CHEQUE. LOT NUMBER AND TRANSACTION NUMBER FURNISHED. V) COPY OF BANK STATEMENT FURNISHE D REFLECTING CHEQUES RECEIVED AND DULY CREDITED. 4. FROM THE ABOVE IT IS CLEAR THAT REQUISITE MATERIAL TO EVIDENCE GENUINENESS OF THE TRANSACTION HAS BEEN PLACED ON RECORD ON BEHALF OF ASSESSEE. THE SAID EVIDENCE HAS NOT BEEN DEMOLISHED BY CONCERNED ASSESSING OFFICER . WHEN ASSESSEE HAS SUBMITTED COPIES OF CONTRACT NOTE, SHOWN THAT MONEY HAS BEEN RECEIVED IN BANK ACCOUNT, FROM SALE OF SHARES, PURCHASE OF WHICH HAS NOT B EEN DOUBTED IN THE EARLIER YEAR. I T IS NOT POSSIBLE TO ACCEPT THE FINDING OF THE ASSESSING OF FICER THAT THE INCOME IS FROM UNDISCLOSED SOURCE. RECORD SHOWS THAT ASSESSEE HAS SUBMITTED CONTRACT NOTE, SALE BILL, DEMAT STATEMENT AND STATEMENT OF ACCOUNT TO SUBSTANTIATE THAT SALES HAD BEEN EFFECTED. IN VIEW OF THE ABOVE CIT(A) WAS JUSTIFIED IN NOT SUS TAINING THE FINDING OF ASSESSING OFFICER. SINCE THE DISALLOWANCE OF LONG TERM CAPITAL GAIN HAS NOT BEEN UPHELD, DISALLOWANCE OF 5% COMMISSION WAS ALSO RIGHTLY 4 ITA NO. 5038/MUM/2013 SMT. PADMADEVI KAINYA DELETED. ADDITION MADE UNDER SECTION 68 WAS RIGHTLY DELETED BY CIT(A). THE REASONED FINING OF THE CIT(A) DOES NOT REQUIRE ANY INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 5. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH OCTOBER, 2015. 30.10.2015 SD/ - SD/ - ( RAMIT KOCHAR ) ( SHAILENDRA KUMAR YADAV ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI , DATED 30 TH OCTOBER, 2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) - 39 , MUMBAI 4. / THE CIT , CENTRAL - II , MUMBAI 5. , , / DR, C BENCH ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER //TRUE COPY// /ASSTT. REGISTRAR) , /ITAT, MUMBAI