ACIT, Jaipur V. SMT. SUNITA AGARWAL, Jaipur

ITA 536/JPR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7084 (ITAT-JAIPUR)
• Duration Of Justice: 6 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: PA K VIHYKFKHZ IZRFKHZ
• Keywords: Assessment record
• Section: 271(1)(c); 133A; 133(6)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA- @ ITA NO. 536/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 A.C.I.T. CIRCLE-2, JAIPUR. CUKE VS. SUNITA AGARWAL, 211, LAXMI COMPLEX, M.I. ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ABYPA 7850 K VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MANISH AGARWAL & SHRI O.P. AGARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/08/2016. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 28/09/2016. VKNS'K@ ORDER PER: LALIET KUMAR, J.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 26/03/2012 OF THE LEARNED C.I.T.(A)-I, JAIPUR FOR A. Y. 2008-09. THE SOLE EFFECTIVE GROUND OF THE APPEAL IS AS UNDER:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD CIT(A) IS JUSTIFIED IN DELETIN G THE ADDITION OF RS. 33.33 LACS ON ACCOUNT OF UNDISCLOSE D 2 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL SHARE TRANSACTION ADMITTED BY THE ASSESSEE HERSELF DURING THE COURSE OF SURVEY PROCEEDINGS U/S 133(A). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF SHARES AND DERIVATIVES. THE R ETURN FOR YEAR UNDER CONSIDERATION WAS FILED ON 26/09/2008 DECLARING TOTA L INCOME OF RS. 8,89,550/-. THE LD ASSESSING OFFICER OBSERVED THAT A SURVEY U/S 133A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS CARRI ED OUT IN THE BUSINESS PREMISES OF M/S MAVERICK SHARE BROKERS PV T. LTD. AND M/S MAVERICK COMMODITY BROKERS PVT. LTD. THE ASSESSEE IS WIFE OF ONE OF THE DIRECTOR OF THE SHARE BROKERS COMPANY. DURING THE C OURSE OF SURVEY, IT WAS NOTICED THAT THE ASSESSEE HAD BEEN DEALING WITH S HARE AND IPOS. STATEMENT OF THE ASSESSEE WAS RECORDED DURING THE CO URSE OF SURVEY. STATEMENT OF THE HUSBAND OF THE ASSESSEE, WHO IS DIR ECTOR OF ONE OF THE COMPANY, WAS ALSO RECORDED. THE LD ASSESSING OFFICER FURTHER OBSERVED THAT THE ASSESSEE DID NOT DISCLOSE THE INCOME OF RS . 33,33,000/- EARNED FROM TRADING IN IPOS DURING THE YEAR UNDER CONSIDER ATION, WHICH WAS SURRENDERED BY HER DURING THE COURSE OF SURVEY PROC EEDINGS. ON BEING ASKED FROM THE ASSESSEE, A REPLY DATED 06/10/2010 WA S FILED BEFORE THE LD ASSESSING OFFICER AND SUBMITTED THAT WITH REGARD TO SURRENDER OF RS. 33.00 LACS, THE SAME WAS MADE WITHOUT IN ANY MANNER R EFERRING TO THE 3 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL BOOKS OF ACCOUNTS MAINTAINED AND WITHOUT CO-RELATING THE ENTRIES CONTAINED THEREIN AND THE INCOME WAS DECLARED IN THE RETURN OF INCOME AFTER DULY INCORPORATING ALL THE TRANSACTIONS MADE BY THE ASSESSEE. THE FINDING OF THE LD ASSESSING OFFICER IS REPRODUCED H EREUNDER:- I HAVE CONSIDERED THE SUBMISSIONS OF THE AR CAREFU LLY AND FIND THEM UNACCEPTABLE. IN THE STATEMENT RECORDED DURING THE COURSE OF SURVEY THE ASSESSEE HERSELF AS WELL THE HU SBAND OF THE ASSESSEE SHRI MUKUT BEHARI AGARWAL STATED THAT T HE IPOS TRADING HAS BEEN DONE OUT OF THE BOOKS OF ACCOUNTS AND NO ENTRIES IN RESPECT OF THE SAME HAVE BEEN ENTERED IN THE BOOKS OF ACCOUNTS. THEREFORE, THE PLEA OF THE AR OF THE AS SESSEE THAT THE SURRENDER WAS MADE WITHOUT IN ANY MANNER REFERRIN G TO THE BOOKS OF ACCOUNTS MAINTAINED HAS NO RELEVANCE. IT IS JUST AN AFTERTHOUGHT OF THE ASSESSEE TO RETRACT FROM THE STATEMENT GIVEN DURING THE TIME OF SURVEY PROCEEDINGS. AS THE ASSESSEE HERSELF AS WELL HUSBAND OF THE ASSESSEE HAS ALSO AC CEPTED THAT AN INCOME OF RS.33,33,000/- HAS BEEN EARNED WHICH WAS NOT RECORDED IN THE BOOKS OF ACCOUNTS AND THIS INCOME B ELONG TO THE ASSESSEE SMT. SUNITA AGARWAL AND THE SAME WAS SURRENDERED. THEREFORE, THE SURRENDERED INCOME AT RS.33,33,000/- IS ADDED IN THE INCOME OF THE ASSESS EE. PENALTY PROCEEDINGS U/S 271(1) (C) OF THE I.T. ACT HAVE BEEN INITIATED SEPARATELY FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. 4 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD DELETED THE ADDITION BY OBSERVING AS UNDER:- 4.4 GIVEN THE ABOVE FACTS I CONCUR WITH THE AR OF THE AP PELLANT THAT THE ADDITION OF RS.33.33 LACS IS NOT SUSTAINAB LE. THE ADDITION WAS MADE ON THE BASIS OF TWO PIECES OF EVIDE NCE NAMELY THE COUNTERFOILS OF IPO APPLICATIONS FOUND D URING THE COURSE OF SURVEY AND THE STATEMENT OF THE HUSBAND O F THE APPELLANT TAKEN DURING THE COURSE OF SURVEY WHEREIN HE MADE A SURRENDER OF A LUMP-SUM OF RS. 1 CRORES ON T HE BASIS OF THESE IPO APPLICATIONS COUNTERFOILS. THIS WAS DIVI DED BY THREE GIVEN THE FACT THAT THESE WERE THREE DIRECTORS OF THE COMPANY AND A SURRENDER OF RS. 33.33 LACS WAS MADE I N THE HANDS OF THE APPELLANT BY HER HUSBAND. THIS WAS SUBSEQUENTLY ENDORSED BY THE APPELLANT DURING THE C OURSE OF HER STATEMENTS. THE MOST PERTINENT POINT TO NOTE HER E IS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN THE CASE M/S MAVERICK SHARE BROKERS PVT. LTD. CERTAIN E NQUIRIES WAS CONDUCTED BY THE AO RELATING TO THESE IPO APPLIC ATIONS BUT NO ADVERSE EVIDENCE COULD BE BROUGHT ON RECORD. THE STATEMENT TAKEN DURING THE COURSE OF SURVEY WAS NOT SUPPORTED BY ANY DOCUMENTS OTHER THAN THE IPO APPLI CATIONS COUNTERFOILS THAT IS THE DEPARTMENT DID NOT FIND AN Y DOCUMENTS, ENTRIES ETC. TO SUPPORT THE PREMISE THAT THE 5 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL APPELLANT HAD EARNED INCOME FROM THESE IPO APPLICAT IONS. SUBSEQUENT INVESTIGATIONS CARRIED OUT BY THE DEPART MENT WITH REFERENCE TO THE COUNTERFOILS OF THE IPO APPLIC ATIONS ALSO DID NOT YIELD ANY ADVERSE EVIDENCE AGAINST THE APPELLANT OR IN SUPPORT OF THE SURRENDER. SINCE THE SURRENDER REMAINED UNSUPPORTED BY ANY EVIDENCE THE IMPUGNED ADDITION O F RS. 33.33 LACS MADE ON THE BASIS OF THIS STATEMENT IS D ELETED. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR HAS SUBMITTED THAT A SURVEY WAS CONDUCTED U/S 133A OF THE ACT AT T HE BUSINESS PREMISES OF M/S MAVERICK SHARE BROKERS PVT. LTD. AN D DURING THE COURSE OF SURVEY, STATEMENT OF SHRI MUKUT BIHARI AGARWAL, D IRECTOR OF THE SAID COMPANY WAS RECORDED ON OATH. THE SAID DIRECTOR, DURI NG THE STATEMENT HAS STATED AS UNDER:- IZ'U 39 VKT LOSZ DH DK;ZOKGH DS NKSJKU PUBLIC ISSUE DH 'KS;J ,IYHDSU DH DKMUVJ QKBZY CGQR CM+H RKNKR ESA IKBZ XBZ GS FTU ESA LS DQN ANNEXURE- DS RGR BANZKT DH XBZ GSA D`I;K CRK;SA FD ;G DKMUVJ QKBZYL VKIDS ;GKWA D;KSA IKBZ XBZ GS ,OA MULS FDL I ZDKJ VK; N'KKZBZ XBZ GS\ MRRJ GEKJS ;GKWA IJ XZKGDKSA DS CGQR T;KNK [KKRS GS AA CGQR LS XZKGD VKIHVKS ESA APPLICATION YXKRS GSA MU XZKGDKSA DKS FUF'PR YKHK MIYC/K DJKDJ MU APPLICATION DS ALLOTMENT DKS CSPUS LS] TKS HKH UQDLKU QK;NK GKSRK GS OG DEIUH DS FUN'KDKSA DS IFJO KJ DS LNL;KSA }KJK VFTZR FD;K TKRK GSA BU APPLICATIONS DKS JHERH LAXHRK ESTH] JHERH LQFURK VXZOKY ,OA JHERH VK'KK TSU GSF.M Y DJRH GSA ,OA 6 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL BULS VFTZR VK; MUDH GKSRH GSA DEIUH DK BU APPLICATIONS LS DKSBZ OKLRK UGHA GSA IZ'U 40 VKIUS I'U LA-39 DS MRRJ ESA CRK;K FD VKBZIH VKS DH TRADING ESA JHERH LQUHRK VXZOKY] JHERH LAXHRK ESTH ,OA JHERH VK 'KK TSU DKS FDRUH&FDRUH VKENUH GQBZ VKSJ OG DGKWA GS\ MRRJ JHERH LAXHRK ESTH] JHERH LQUHRK VXZOKY ,OA JHE RH VK'KK TSU DKS YXHKX RHUKSA DKS FEYKDJ VKBZIHVKS DH TRADING LS DJHC 1]00]00]000 ,D DJKSM+ :I;S DH VKENUH GQBZA BL VKE NUH DK BU RHUKSA US DKSBZ FGLKC FDRKC UGHA J[KK GSA PWQWFD RH UKSA DH VYX&VYX V?KKSF'KR VKENUH 33]33]000@& :I;S PKYW FOR O'KZ ESA GQBZ GSA ;S RHUKSA DEIFU;KSA DS MK;JSDVLZ DH /KEZ IFRU;KWA GSA RHUKSA MK;JSDVLZ US VIUH&VIUH /KEZIFRU;KSA LS VHKH VSFYQKSU IJ PPKZ DJ YH GSA RHUKSA GH ;G V?KKSF'KR JKF'K VK;DJ DS FY, LEFIZR DJ JGH GSA V KSJ BL IJ CUUS OKYK FU;FER DJ TEK DJK NSXHA STATEMENT OF ASSESSEE WAS ALSO RECORDED ON OATH AND SHE HAD ADMITTED TO BE DEALING IN THE SALE AND PURCHASE OF IPOS AND SHE HAS ADMITTED TO HAVE EARNED THE INCOME OF RS. 33.33 LACS IN THE CUR RENT YEAR, WHICH WAS NOT RECORDED IN THE BOOKS OF ACCOUNT. THE RELEVANT Q UESTIONS IS AS UNDER: IZ'U 2 D`I;K CRK;SA FD VKBZIHVKS DH APPLICATION DH [KJHN RFKK FO; LS VFTZR VK; FDRUH GKSRH GS BLDS LACA/K ESA D;K FJDKMZ J[KRS GS RFKK ;G DJ FOOJ.KH ESA FDL IZDKJ LS N'KKZBZ TKRH GS\ MRRJ APPLICATION DH [KJHN LS LACAF/KR DK;Z PKYW FOFRR; O'KZ ESA GH IZKJEHK FD;K X;K GSA ES-ESJFOD 'KS;J CZKSDLZ IZK-FY ,OA ESA ESJFOD DEKSFMFVZT CZKSDJ IZK- FY-] TKS FD IGYS ESA EATH 'KS;J CZKSDJ IZK- FY] RFKK EGK Y{EH 7 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL DEKSFMZFVT IZK- FY FKHA ;G DK;Z MU DEIFU;KSA DS O;K IKFJD LFKY LS O;FDRXR RKSJ IJ FD;K X;K GSA BLLS LACAF/KR VK; RFKK [KPKSZ ,OA YKHK&GKFU LACAF/KR DKSBZ FJDKMZ UGHA J[KK X;K GSA APPLICATION XZS EKDSZV LS JKSDM+ ESA [KJHNH TKRH GSA ALLOTMENT IJ CSP NH TKRH GSA VURJ DK YSUNSU GEKJH VK; GKSRH GSA PKYW FOFRR; O'KZ DH VK;DJ FOOJ.KH VHKH DUE UGHA GQBZ GSA O'KZ DS VUR ESA VFTZR VK; DJ FOOJ.KH ESA NKKZ NH TK;SXHA I'U 3 D`I;K CRK;KSA FD PKYW FOFRR; O'KZ ESA VKBZIHV KS DH APPLICATION IJ [KJHN LS VHKH RD FDRUH VK; GKS XBZ GS\ MRRJ TSLK FD IWOZ IZ'U DS TCKC ESA CRK;K GS] BL LAC A/K ESA DKSBZ FJDKMZ UGHA J[KK TKRK GS VUQEKFUR VK/KKJ IJ PKYW FOFRR; O'KZ ES A ESJH VK; DK FGLLK 33]33]000@& :I;S VKRK GSA IZ'U 4 MIJKSDR 3333000@& :I;S FDL IZDKJ LS VUQEKFUR FD;K X;K GS\ MRRJ VK;DJ FOHKKX DS VKT FNUAKD 19-07-2007 DKS ES- ESJFOD KS;J CZKSDLZ IZK- FY ,OA ESA ESJFOD DEKSFMFVT IZK- FY- DS ;KGWA IJ LOSZ DH DK;ZOKGH DS NKSJKU VKBZIHVKS DH -------------LQUHYK VXZOKY 1 9-07-7------------------------ APPPLICATIONS DH DKMUVJ QKBZY DH LA[;K RFKK FD;S X;S O;KIKJ DKS YSCY DS VK/KKJ IJ FD;K X;K GSA BL JKF'K DH X.KU K ESJS IFR JH EQDQV FCGKJH VXZOKY US FN;S X;S VIUS C;KU ESA HKH C RK;K GSA LHKH YSUNSU JKSDM+ ESA GS BLFY;S VUQEKU DS VYKOK DKSBZ V K/KKJ UGHA GSA IZ'U 5 MIJKSDR VFTZR VK; VKIUS FDL DKE ESA YH RFKK BLDS LACA/K ESA D;K LK{; GS\ MRRJ MDR VFTZR VK; VKBZIHVKS DH APPLICATIONS DH [KJHN ESA FUNSZF'KR GSA VHKH TSLS&TSLS OLWYH GKSXH] ;G JKF'K ESJS CSAD [KKRS ESA TEK DJK NH TK;SXHA 8 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL THE LD DR HAS FURTHER SUBMITTED THAT THE STATEMENT O F THE ASSESSEE WAS RECORDED ON 19/07/2007 ON OATH. HOWEVER, SHE HAS NO T RETRACTED HER STATEMENT EVEN AFTER THE LAPSE OF MORE THAN A YEAR. THE ASSESSEE FILED THE RETURN OF INCOME ON 26/09/2008 WITHOUT DISCLOSIN G THE SURRENDER OF RS 33.33 LACS MADE DURING THE COURSE OF SURVEY ON 1 9/07/2007. THE LD ASSESSING OFFICER HAS ASKED THE ASSESSEE TO EXPLAIN THE REASONS FOR NOT DISCLOSING THE SURRENDERED AMOUNT FOR TAXATION PURP OSES IN THE RETURN OF INCOME. IN RESPONSE THERETO, THE LD AR OF THE ASSES SEE HAS SUBMITTED AS UNDER:- WITH REGARD TO THE SURRENDER OF RS. 33.00 LACS IT IS SUBMITTED THAT THE SAME WAS MADE WITHOUT IN ANY MANNER REFERRING TO THE BOOKS OF ACCOUNTS MAINTAINED AND WITHOUT CO-RELATING THE E NTRIES CONTAINED THEREIN AND THE INCOME WAS DECLARED IN THE RETURN OF INCOME AFTER DULY INCORPORATING ALL THE TRANSACTION S MADE BY THE ASSESSEE. THUS, THE INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED DESERVES TO BE ACCEPTED. THE LD ASSESSING OFFICER WAS NOT SATISFIED AND THEREF ORE, THE ADDITION WAS MADE. IT WAS SUBMITTED BY THE DR THAT THE ASSESSEE H AS SURRENDERED THE AMOUNT OUT OF HER OWN SWEET FREE WILL WITHOUT AND DURES S AND COERCION AND THEREFORE THE ASSESSEE IS BOUND BY THE STATEMEN T MADE DURING THE SURVEY PROCEEDINGS. IT WAS FURTHER SUBMITTED BY THE LD DR FOR THE 9 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL REVENUE THAT THE ORDER PASSED BY THE LD CIT(A) RELYI NG UPON THE FINDING OF THE M/S MAVERICK SHARE BROKERS PVT. LTD. IS WITHO UT ANY BASIS AND THEREFORE, THE SAME IS NOT REQUIRED TO BE CONSIDERE D. IT WAS SUBMITTED THAT NO ENQUIRY WAS CONDUCTED IN RESPECT OF IPOS APP LICATION FOUND DURING THE COURSE OF SURVEY AND ADMITTED BY THE ASS ESSEE AND HER HUSBAND AND THEREFORE THE DELETION MADE BY THE LD C IT(A) IS WITHOUT ANY BASIS AND REQUIRED TO BE REJECTED. 5. ON THE OTHER HAND, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ADDITION MADE BY LD. AO IS SOLELY BASED ON THE SO CALLED ADMISSION MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY PR OCEEDINGS. FROM THE PERUSAL OF THE ASSESSMENT ORDER, IT CAN BE SEEN THA T NO INCRIMINATING MATERIAL WAS FOUND / IMPOUNDED DURING THE COURSE OF SURVEY NOR AFTER SURVEY NOR BY MAKING INDEPENDENT ENQUIRIES DURING T HE ASSESSMENT PROCEEDINGS ANY INCRIMINATING MATERIAL WAS BROUGHT O N RECORD TO SUPPORT THE ALLEGATION THAT ASSESSEE WAS INDULGED IN TRADING OF SHARES IN IPO AND HAD EARNED INCOME TO THE EXTENT OF RS. 33,33,000/- WHICH WAS NOT DISCLOSED AND SOLELY BASED ON THE SO CALLED ADMISSI ON DURING THE COURSE OF SURVEY ADDITION WAS MADE. ALSO, THE SO-CALLED SU RRENDER MADE DURING THE COURSE OF SURVEY WAS RETRACTED WHILE FILING THE R ETURN OF INCOME ON 10 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL 26.09.2008 WHERE THE ASSESSEE DID NOT INCLUDE THE SU RRENDERED AMOUNT AS PART OF HER INCOME. FURTHER, IT IS SUBMITTED THAT, AS HAS BEEN STATED ABOVE, DURING THE COURSE OF SURVEY PROCEEDINGS IN THE CASE OF THE COM PANY M/S MAVERICK SHARE BROKERS PVT. LTD. STATEMENTS OF THE ASSESSEE WERE ALSO RECORDED, WHEREIN A SURRENDER OF RS. 33.33 LACS ON ACCOUNT OF THE UNDISCLOSED INCOME EARNED BY THE ASSESSEE FROM SHARE TRANSACTIO NS WAS OBTAINED FROM HER WHICH WAS MADE BY THE ASSESSEE WITHOUT IN ANY MANNER VERIFYING THE SAME WITH THE BOOKS OF ACCOUNTS REGULA RLY MAINTAINED BY HER AND ALSO WITHOUT LINKING AND CO-RELATING THE TRA NSACTIONS WITH M/S MAVERICK SHARE BROKERS PVT. LTD. ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDIN GS FOR THE YEAR UNDER APPEAL IN EACH SUBMISSION REQUESTED THE ASSES SING AUTHORITIES FOR THE SUPPLY OF THE STATEMENTS RECORDED DURING THE CO URSE OF SURVEY, HOWEVER, DATE THEY WERE NOT SUPPLIED TO THE ASSESSEE AND ULTIMATELY THEY WERE SUPPLIED BY LD. CIT(A) DURING THE COURSE O F APPELLATE PROCEEDINGS. 11 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL IT IS ALSO RELEVANT TO MENTION THAT ASSESSEE WAS NE ITHER THE EMPLOYEE NOR THE DIRECTOR OF M/S MAVERICK SHARE BRO KERS PVT. LTD. AND WAS ALSO NOT PRESENT AT THE BUSINESS PREMISES DURING THE COURSE OF SURVEY AND BEING OUTSIDER, UNDER WHAT CIRCUMSTANCES HER STATEMENTS WERE RECORDED DURING THE SURVEY IS NOT UNDERSTANDABL E MORE PARTICULARLY WHEN THE SURVEY WAS NOT CONDUCTED IN HER CASE. THE FA CT THAT THE ASSESSEE WAS NOT PRESENT AT THE BUSINESS PREMISES OF M/S MAVERICK SHARE BROKERS PVT. LTD. IS ALSO FORTIFIED FROM THE REPLY TO Q.NO. 40 (REPRODUCED AT PAGE 3 OF ASSESSMENT ORDER) GIVEN BY SHRI MUKUT BEHARI AGARWAL WHEREIN HE HAS CLEARLY STATED THAT ALL THE DI RECTORS HAD DISCUSSED TO THEIR WIVES WITH REGARD TO SUCH TRADING. THUS IT IS CLEAR THAT THE STATEMENTS OF THE ASSESSEE WERE NOT MADE VOLUNTARILY AND SHE SIGNED ON THE DOTTED LINES. IT IS ALSO A MATTER OF FACT THAT IN THE SAME STATE MENT SHRI MUKUT BEHARI AGARWAL HAS OFFERED INCOME IN THE HANDS OF SM T. SANGEETA MANTRI AND SMT. ASHA JAIN BUT NO ACTION HAS BEEN TAKEN BY DEPARTMENT IN THEIR CASES WHICH FURTHER PROVES THE CONTENTION OF ASSESSE E THAT THERE WAS NO MATERIAL WITH LD. AO AND THUS OPTED NOT TO PROCEED I N THEIR CASES. 12 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL DURING THE RELEVANT PERIOD THE ASSESSEE HAD DEALT INTO THE SHARES AND DERIVATIVES MARKET THROUGH M/S MAVERICK SHARE B ROKERS PVT. LTD. UNDER THE CLIENT CODE NO. MS-82 WHEREIN ALL THE TRANSACTION ENTERED INTO BY THE ASSESSEE WERE DULY APPEARING AND FROM SU CH TRANSACTIONS ASSESSEE HAS EARNED PROFIT OF RS. 6,96,034.44 WHICH WAS CREDITED IN THE PROFIT AND LOSS ACCOUNT AND THE LD.AO HAS NOT POINT ED OUT ANY TRANSACTION IN WHICH CASE INCOME WAS EITHER NOT DISCL OSED OR PARTLY DISCLOSED. FURTHER ALL THE TRANSACTIONS COULD BE VE RIFIED FROM THE CONCERNED STOCK EXCHANGES BUT THE LD. A.O. MADE NO EFFORT TO VERIFY THEM, IN OTHER WORDS, THE LD.AO HAS NO MATERIAL IN H IS POSSESSION TO HOLD THAT THE INCOME DECLARED BY THE ASSESSEE WAS NOT COR RECT. FURTHER FROM THE PERUSAL OF EXTRACTS OF THE STATEM ENTS OF THE ASSESSEE AND HIS HUSBAND REPRODUCED IN THE ASSESSME NT ORDER, IT IS GATHERED THAT DURING THE COURSE OF SURVEY A REFEREN CE OF SOME FILE OF IPO ISSUE IS MADE BUT IN THE ASSESSMENT PROCEEDINGS LD. AO HAS MADE NO ENQUIRY WITH REGARD TO SUCH DOCUMENTS WHICH, AS IS AP PEARING FROM THE PLAIN READING OF THE STATEMENTS, HAVE BEEN MADE SOL E BASIS FOR WORKING OUT THE SO CALLED UNDISCLOSED INCOME OF RS. 33.33 L ACS. FURTHER NOT A SINGLE PAPER WHATSOEVER HAS BEEN BROUGHT ON RECORD F ROM WHICH THE 13 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL MAGIC FIGURE OF RS.33.33 LACS HAS BEEN HELD AS UNDI SCLOSED INCOME OF THE ASSESSEE. IN FACT IT IS A MATTER OF FACT THAT NO INCRIMINATI NG PAPERS WHATSOEVER WERE FOUND DURING THE COURSE OF SURVEY FRO M THE POSSESSION OF THE ASSESSEE OR FROM THE PREMISES OF THE COMPANY M/S MAVERICK SHARE BROKERS PVT. LTD. IN WHOSE CASE SURVEY PROCEEDINGS WE RE CONDUCTED, WHICH WILL LEAD TO BELIEF THAT THE ASSESSEE HAS INDUL GED IN THE ACTIVITY RESULTING INTO ANY UNDISCLOSED INCOME. IT IS FURTHER SUBMITTED THAT THE INCOME WAS ADMITTE D DURING THE COURSE OF SURVEY WITHOUT IN ANY MANNER LINKING AND CO-RELATING THE INFORMATION, IF ANY, FOUND AS RESULT OF SURVEY WITH THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE THUS THE ASSESSEE SHOULD NOT BE FASTENED WITH ANY ADDITIONAL LIABILITY TOWARDS THE ADMISSION O BTAINED AT RS. 33.33 LACS FOR WHICH NEITHER THERE IS ANY BASIS NOR ANY RE CORD WHATSOEVER WAS FOUND / IMPOUNDED DURING THE COURSE OF SURVEY IN TH E CASE OF THE COMPANY M/S MAVERICK SHARE BROKERS PVT. LTD. NOR DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, LD. AO HAS BROUGHT AN IOTA OF EVIDENCE/MATERIAL EXCEPT THE SO CALLED ADMISSION, B Y MAKING INDEPENDENT ENQUIRIES. IT IS SETTLED PROPOSITION OF LAW THAT ASSESSMENT IS 14 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL A QUASI JUDICIAL PROCEEDING IN WHICH SUCH TYPE OF CA SUAL APPROACH TAKEN BY THE LD. AO CANNOT BE ALLOWED. IF AN INCOME NOT AD MITTED BY ASSESSEE IS TO BE ASSESSED IN THE HANDS OF THE ASSESSEE, THE BURDEN OF ESTABLISH THAT THERE IS SUCH INCOME CHARGEABLE TO TAX IN THE HANDS OF ASSESSEE IS ON THE DEPARTMENT WHICH IN THIS CASE HAS NOT BEEN DI SCHARGED BEFORE MAKING THE ADDITION MORE PARTICULARLY WHEN NO PRECIS E WORKING OF MAGIC FIGURE OF RS. 33,33,000/- WAS NOT BROUGHT ON RECORD BY THE LD. AO IN ASSESSMENT PROCEEDINGS. IT IS ALSO A MATTER OF FACT THAT ENQUIRIES FROM FE W PERSONS WERE MADE WHOSE APPLICATIONS IN IPO WERE FOUND IN THE PREM ISES OF M/S MAVERICK SHARE BROKERS PVT. LTD. DURING THE COURSE OF SURVEY IN THE ASSESSMENT PROCEEDINGS OF THE COMPANY M/S MAVERICK SHARE BROKERS PVT. LTD. AND COPIES OF FEW SUMMONS AS ISSUED U/S 133(6) BY THE CONCERNED A.O. (WHO INCIDENTALLY BE THE A.O. IN THE CASE OF AS SESSEE) ARE ENCLOSED HEREWITH THAT NO ADVERSE INFERENCE ON THE BASIS OF T HOSE ENQUIRIES HAS BEEN TAKEN IN THE ASSESSMENT ORDER PASSED IN THE CA SE OF M/S MAVERICK SHARE BROKERS PVT. LTD. IT IS THUS SUBMITTED THAT E VEN AFTER MAKING INDEPENDENT ENQUIRIES LD. AO HAS NOT BEEN ABLE TO B RING ON RECORD ANY MATERIAL SUGGESTING THAT THE ASSESSEE HAS EARNED IN COME FROM IPO 15 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL APPLICATIONS, THUS THE ADDITION BEING MADE SOLELY B ASED ON THE ALLEGED ADMISSION OBTAINED DURING THE COURSE OF SURVEY AND WITHOUT BRINGING ON RECORD ANY CORROBORATIVE EVIDENCE OR MATERIAL HAS R IGHTLY BEEN DELETED BY THE LD. CIT(A). ADDITIONS OF RS. 80.00 LACS SIMILAR NATURE BASED ON SAME STATEMENTS OF SHRI MUKUT BEHARI AGARWAL, HUSBAND OF ASSESSEE WERE ALSO MADE IN THE CASE OF COMPANY M/S MAVERICK SHARE BROK ERS (P) LTD. WHICH STOOD DELETED BY LD. CIT(A) AS THERE WAS NO SUPPORTIN G MATERIAL EITHER FOUND DURING THE COURSE OF SURVEY OR GATHERED / BRO UGHT ON RECORD DURING THE ASSESSMENT PROCEEDINGS SUCH ORDERS WERE C ONFIRMED BY HONBLE ITAT, JAIPUR BENCH VIDE ORDERS DATED 17.07.2 015. IN THE CIRCUMSTANCES IT IS SUBMITTED THAT THE ADDITION BEI NG MADE SOLELY BASED ON THE ALLEGED SURRENDER DURING THE COURSE OF SURVE Y AND WITHOUT BROUGHT ON RECORD ANY CORROBORATIVE EVIDENCE OR MAT ERIAL THUS THE ADDITION OF RS. 33.33 LACS HAS RIGHTLY BEEN DELETED BY THE LD. CIT(A) AND THEREFORE, THE APPEAL OF REVENUE DESERVES TO BE DIS MISSED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS AN ADMITTED CASE BY BOTH THE PARTIES THAT THE STATEMENT OF THE ASSESSEE WAS RECORDED ON 19/07/2007 WHEREIN SHE HAD AGREED TO SURRENDER THE A MOUNT OF RS. 16 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL 33.33 LACS FOR THE PROFIT EARNED DURING THE CURRENT FINANCIAL YEAR. IT IS ALSO ADMITTED POSITION THAT DURING THE STATEMENT OF SHRI MUKUT BIHARI AGARWAL, HUSBAND OF THE ASSESSEE RECORDED BY THE OFF ICERS OF THE REVENUE, IT WAS MENTIONED THAT M/S MAVERICK SHARE BR OKERS PVT. LTD. HAS NO CONNECTION WITH THE IPO APPLICATION AND ALL THE A PPLICATION OF IPO WERE BEING HANDLED BY SMT. SANGITA SOMANI, SUNITA AG ARWAL AND ASHA JAIN. DURING THE SURVEY PROCEEDINGS, THE OFFICERS O F THE REVENUE HAD ALSO RECORDED THE STATEMENT OF SHRI MUKUT BIHARI AGARWAL AND IN THE SAID STATEMENT, THE SAID MUKUT BIHARI AGARWAL HAD ADMITT ED TO SURRENDER A SUM OF RS. 80.00 LACS. THE QUESTIONS AND ANSWERS GIVE N BY THE SAID SHRI MUKUT BIHARI AGARWAL FOR THE SURRENDER OF RS. 80.00 LACS IS AS UNDER:- IZ'U ES- LANHI LVKWD IZK- FY- ESA VKIDH DEIFU;KSA D S FDRUS LKSNS CQD FD;S X;S GSA MULS VFTZR VK; VKIDH DEIUH ESA REGULAR BOOKS DS ACCOUNTS ESA FDL IZDKJ FN[KKBZ GSA MRRJ ES- LANHI LVKD IZK-FY- ESA GEKJH DEIUH DS LKSN S DSOY PKYW FORRH; O'KZ ESA GH FD;S X;S GSA BULS IWOZ DS O'KKZZS ESA ,SLK D KSBZ LKSNK UGHA FD;K X;KA PKYW FORRH; O'KZ ESA BL IZDKJ DS LKSNKSA LS YX HKX 80 YK[K :I;S DH VK; VFTZR DH GSA BL JKF'K DKS REGULAR BOOKS OF ACCOUNTS ESA RECORD UGHA FD;K X;K GSA PWWAFD LOSZ DH DK;ZOKGH DS NKSJKU RECONCILIATION ESA ;G RF; IK;S X;S GSA BLFY, BUDS LACA/K ESA PROPER JOURNAL ENTRY IKL DJRS GQ;S DEIUH DH VK; ESA N NN N' '' 'KKZ KKZKKZ KKZ;S TK JGS GSA 17 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL IZ'U D`I;K CRK;SA FD MIJKSDR 80 YK[K :I;S DH X.KUK FDL VK/KKJ IJ DH XBZ GS VKSJ BL VFRFJDR VK; IJ VFXZE DJ DK HKQXRKU F DL IZDKJ DJSXSA MRRJ MIJKSDR LKSNS DH TKUDKJH ,OA VK; DH X.KUK LACA /KH FOOJ.K FNUAKD 20-07-2007 LK;A DKY RD DK;KZY; ESA IS'K DJ NSXSA VK SJ VFXZE DJ DS PSD VHKH IS'K DJ JGS GSA THE ASSESSING OFFICER OF M/S MAVERICK SHARE BROKERS PVT. LTD. HAD MADE ADDITION OF RS. 80.00 LACS BY GIVING THE FOLLOWING R EASONS: I HAVE CONSIDERED THE SUBMISSIONS OF THE AR OF THE ASSESSEE COMPANY AND FIND THEM UNACCEPTABLE BECAUSE THE SAME ARE AN AFTERTHOUGHT JUST FOR THE SAKE OF RETRA CTION FROM INCOME ACCEPTED AS UNDISCLOSED AND NOT RECORDE D IN THE BOOKS OF ACCOUNTS AMOUNTING TO RS. 80,00,000/- DURING THE COURSE OF SURVEY PROCEEDINGS. THEREFORE, THE UNDISCLOSED INCOME AMOUNTING TO RS. 80,00,000/- AS ACCEPTED BY THE DIRECTOR IN HIS STATEMENT AND WHICH WAS SURRENDERED FOR TAXATION IS ADDED IN THE INCOME OF THE ASSESSEE COMPANY. PENALTY PROCEEDINGS U/S 271(1)(C) OF THE I.T. ACT HAVE BEEN INITIATED SEPARATELY FOR FURN ISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. THE CONTENTION OF THE LD AR FOR THE ASSESSEE AND AL SO THE LD CIT(A) THAT DURING THE ASSESSMENT PROCEEDINGS IN THE CASE OF M/ S MAVERICK SHARE BROKERS PVT. LTD., CERTAIN ENQUIRIES WERE CONDUCTED BY THE LD ASSESSING 18 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL OFFICER RELATING TO THESE IPOS APPLICATIONS BUT NO ADVERSE EVIDENCE COULD BE BROUGHT ON RECORD. WE HAVE PERUSED THE DOCUMENTS PLACED AT PAGE NOS. 11 TO 19 OF THE PAPER BOOK, WHICH SOUGHT TO SUG GEST THAT CERTAIN ENQUIRIES WERE CONDUCTED IN RESPECT OF IPOS ISSUED P ERTAINING TO THE ASSESSEE IN THE MATTER OF M/S MAVERICK SHARE BROKER S PVT. LTD. THE LD. DR, WAS UNABLE TO EITHER ADMIT OR DENY ABOUT THE ABO VE SAID ASPECT. HOWEVER, HE HAS SUBMITTED THAT THE ASSESSEE HAS ADMI TTED IN THE STATEMENT RECORDED ON 19/7/2007 ABOUT THE UNRECORDE D BUSINESS CARRIED OUT BY HER ALONGWITH TWO OTHER PERSONS. IN OUR VIEW, IF THE ASSESSING OFFICER WAS ALSO THE ASSESSING OFFICER IN THE CASE OF THE COMPANY NAMELY M/S MAVERICK SHAR E BROKERS PVT. LTD. HAS CONDUCTED THE ENQUIRIES IN RESPECT OF IPOS APPL ICATION IN DISPUTE ALLEGEDLY PERTAINING TO THE ASSESSEE, AND NO ADVERS E INFERENCE WAS DRAWN BY HIM, THEN, IN OUR VIEW, NO CASE OF ADDITION CAN BE SAID TO BE MADE OUT. ACCORDINGLY, IT WOULD BE IN THE INTEREST O F JUSTICE AND FOR THE FAIR ADJUDICATION THE MATTER IS REMANDED BACK TO TH E FILE OF THE ASSESSING OFFICER WITH DIRECTION TO LOOK INTO THE RECORD OF M/ S MAVERICK SHARE BROKERS PVT. LTD. AND FIND OUT IF THE ENQUIRIES WERE MADE IN RESPECT OF THE SHARE APPLICATIONS OF THE ASSESSEE BY THE ASSES SING OFFICER DURING THE 19 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL ASSESSMENT PROCEEDINGS OF THE COMPANY THEN, AND NO ADVERSE INFERENCE HAS BEEN FOUND DRAWN BY HIM. IN CASE THE AO FOUND I T TO BE CORRECT THEN THE ADDITION MADE BY THE ASSESSING OFFICER, ARE NOT SUSTAINABLE AND ARE DIRECTED TO BE DELETED. HOWEVER, IF THE PAPERS PLACE D AT PAGE NO. 11 TO 19 OF THE PAPER BOOKS OF ASSESSEE IN THE PRESENT CA SE DO NOT PERTAIN TO THE ASSESSMENT RECORD/IPOS IN DISPUTE IN THE PRESEN T CASE, THEN IN THAT EVENTUALITY, THE ADDITION MADE BY THE ASSESSING OFF ICER SHALL NOT BE DELETED AND APPEAL OF THE REVENUE SHALL BE CONSIDER ED TO BE ALLOWED. WITH THE ABOVE SAID DIRECTION, THE CASE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER AND ACCORDINGLY, THE APPEAL O F THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 7. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28/09/2016 SD/- SD/- HKKXPAN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ YS[KK LNL;@ YS[KK LNL;@ YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ U;KF;D LNL;@ U;KF;D LNL;@ U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28 TH SEPTEMBER, 2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1 VIHYKFKHZ @ THE APPELLANT- THE A.C.I.T., CIRCLE-2, JAIPUR.. 2. IZR;FKHZ @ THE RESPONDENT- SMT. SUNITA AGARWAL, JAIPUR. 20 ITA NO. 536/JP/2012 ACIT VS SUNITA AGARWAL 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 536/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR