DCIT, New Delhi V. Smt Pratibha Aggarwal, New Delhi

ITA 538/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65407 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 28-08-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 04-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH F FF F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.538/DEL/2010 538/DEL/2010 538/DEL/2010 538/DEL/2010 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2003 2003 2003 2003- -- -04 0404 04 DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -25, 25, 25, 25, NEW NEW NEW NEW DELHI. DELHI. DELHI. DELHI. VS. VS. VS. VS. SMT.PRATIBHA AGGARWAL, SMT.PRATIBHA AGGARWAL, SMT.PRATIBHA AGGARWAL, SMT.PRATIBHA AGGARWAL, F FF F- -- -170B, WESTERN AVENUE, 170B, WESTERN AVENUE, 170B, WESTERN AVENUE, 170B, WESTERN AVENUE, SAINIK FARMS, SAINIK FARMS, SAINIK FARMS, SAINIK FARMS, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : AAHPA4205A. PAN : AAHPA4205A. PAN : AAHPA4205A. PAN : AAHPA4205A. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDESH GARG, SR.DR. RESPONDENT BY : SHRI RAJESH MAHNA, ADVOCATE. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : IN THIS APPEAL FILED BY THE REVENUE, FOLLOWING GRO UNDS ARE RAISED:- 1. THE ORDER OF THE LD.CIT(APPEALS) IS NOT CORRECT IN LAW AND FACTS. 2. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE TH E LD.CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING TH E ADDITION OF RS.39,84,775/- MADE BY THE AO AS INCOME FROM UNDISCLOSED SOURCES ON ACCOUNT OF BOGUS CAPITAL GAI NS ON SALE OF SHARES CLAIMED BY THE ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD.CIT(A) HAS ERRED IN LAW AND FACTS IN HOLDING THAT THE AO COULD NOT EXERCISE HIS JURISDICTION U/S 153A TO REASSESS THE INCOME WHICH HAS ALREADY BEEN ASSESSED U/S 143( 1) OF THE I.T.ACT, 1961. ITA-538/DEL/2010 2 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN LAW & FACTS IN DELETING THE ADDITION ON ACCOUNT OF THE FACT THAT THE CROSS-EXAMINATION O F THE WITNESS SH.A.K.GOYA, MANAGING DIRECTOR OF M/S DIWAK AR SECURITIES LTD. WAS NOT ALLOWED TO THE ASSESSEE IGN ORING THE PROPOSITION THAT SUCH MISTAKE ON PART OF THE AS SESSING OFFICER IN EXERCISE OF HIS JURISDICTION WAS A CURAB LE DEFECT AND ALSO IN VIEW OF THE FACT THAT THERE WERE OTHER EVIDENCES WHICH PROVED THAT THE ASSESSEE HAS SHOWN BOGUS CAPITAL GAINS ON SALE OF SHARES. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING T HE COURSE OF THE HEARING OF THE APPEAL. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT AN IDENTICAL ISSUE RELATIN G TO ADDITION ON ACCOUNT OF BOGUS CAPITAL GAINS AS INVOLVED IN THE Y EAR UNDER CONSIDERATION WAS RAISED BY THE ASSESSEE IN HER APP EAL BEFORE THE ITAT FOR AY 2002-03 IN ITA NO.113/DEL/2010. THE ITAT, V IDE ITS ORDER DATED 16 TH DECEMBER, 2011, SET ASIDE THE MATTER TO THE FILE O F THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME IN ACCO RDANCE WITH THE DIRECTIONS GIVEN BY THE ITAT IN ITS ORDER DATED 25 TH JUNE, 2010 PASSED IN ITA NO.1069/DEL/2010 IN THE CASE OF SMT. KALAWATI A GGARWAL FOR AY 2003-04. 3. SINCE THE GROUNDS RAISED AS WELL AS FACTS OF THE CASE ARE IDENTICAL TO GROUND RAISED IN AY 2002-03, WE, RESPECTFULLY FO LLOWING THE DECISION OF ITAT IN AY 2002-03, SET ASIDE THE MATTER INVOLVE D IN THIS YEAR ALSO TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH THE DIRECTIONS GIVEN BY THE TRIBUNA L VIDE ITS ORDERS ITA-538/DEL/2010 3 DATED 16 TH DECEMBER, 2011 AND 25 TH JUNE, 2010 (SUPRA). NEEDLESS TO MENTION THAT THE ASSESSING OFFICER WILL ALLOW SUFFI CIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREA TED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 31 ST AUGUST, 2012. SD/- SD/- ( (( (RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 31.08.2012 VK. COPY FORWARDED TO: - 1. APPELLANT : DEPUTY COMMISSI DEPUTY COMMISSI DEPUTY COMMISSI DEPUTY COMMISSIONER OF ONER OF ONER OF ONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -25, 25, 25, 25, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 2. RESPONDENT : SMT.PRATIBHA AGGARWAL, SMT.PRATIBHA AGGARWAL, SMT.PRATIBHA AGGARWAL, SMT.PRATIBHA AGGARWAL, F F F F- -- -170B, WESTERN AVENUE, 170B, WESTERN AVENUE, 170B, WESTERN AVENUE, 170B, WESTERN AVENUE, SAINIK FARMS, SAINIK FARMS, SAINIK FARMS, SAINIK FARMS, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR