Shri Jawaharlal Agrawal, Indore V. The ACIT, Circle 5(1), Indore

ITA 586/IND/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7139 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 14-09-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Keywords: Capital asset; Business income; Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS.586 AND 587/IND/2010 A.YS.2004-05 & 2005-06 JAWAHARLAL AGRAWAL INDORE PAN ADSPA -1202H APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 5(1), INDORE RESPONDENT APPELLANT BY : SHRI MANOJ GUPTA DEPARTMENT BY : SHRI ARUN DEWAN DATE OF HEARING : 20.9.2011 DATE OF PRONOUNCEMENT : 20 .9.2011 2 O R D E R PER JOGINDER SINGH THESE APPEALS ARE BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2004-05 AND 2006-07 CHALLENGING THE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DATED 19.3.2008. IN ITA NO. 586/IND/2010 FOLLOWING GROUN DS WERE RAISED :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, WAS NOT JUSTIFIED IN CONFIRMING THE A DDITIONS OF 6,71,013/- ON ACCOUNT OF UNDERSTATEMENT OF REC EIPT WHICH MAY VERY KINDLY BE DELETED IN FULL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, WAS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF RS.23,365/- ON ACCOUNT OF ACCRUED INTEREST ON FDR WHICH MAY VERY KINDLY BE DELETED IN FULL. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, WAS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF RS. 58,755/- ON ACCOUNT OF INTEREST RECEIVED F ROM IDBI NOT OFFERED IN COMPUTATION, WHICH MAY VERY KINDLY BE DELETED IN FULL. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, WAS NOT CORRECT IN PASSING AN EX-PART E ORDER. 3 IN ITA NO. 587/IND/2010 FOLLOWING GROUNDS WERE RAIS ED :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, HAS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF RS. 3287,334/- ON ACCOUNT OF UNDERSTATEMENT OF RECEIPT WHICH MAY VERY KINDLY BE DELETED IN FULL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, HAS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF RS.276910/- ON ACCOUNT OF UNDERSTATEMENT OF RECEIPT, WHICH MAY VERY KINDLY BE DELETED IN FULL . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, HAS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF RS. 9,63,704/- SHOWN AS SHORT TERM CAPITAL GAI N WAS TREATED AS BUSINESS INCOME IN ASSESSMENT ORDE R WHICH MAY VERY KINDLY BE AGAIN TREATED AS SHORT T ERM CAPITAL GAIN. 4 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, HAS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF RS.7152/- ON ACCOUNT OF FAMILY PENSION RECEIV ED BUT NOT OFFERED AS INCOME IN COMPUTATION WHICH MA Y VERY KINDLY BE DELETED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, WAS NOT CORRECT IN CONFIRMING THE ADD ITION OF RS.12500/- ON ACCOUNT OF PENALTY LEVIED WHICH MAY VERY KINDLY BE DELETED IN FULL. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, HAS NOT JUSTIFIED IN CONFIRMING THE A DDITION 4 OF RS.25000/- OUT OF RS. 47730/- ON ACCOUNT OF S TAFF WELFARE WHICH MAY VERY KINDLY BE DELETED IN FULL. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, HAS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF RS.10000/- OUT OF 20,000 ON ACCOUNT OF TRAVEL LING EXPENSES WHICH MAY VERY KINDLY BE DELETED IN FULL . 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II, INDORE, HAS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF RS.20,000/- ON ACCOUNT OF TELEPHONE EXPENSES WHICH MAY VERY KINDLY BE DELETED IN FULL 2. DURING HEARING OF THESE APPEALS, SO FAR AS ITA N O. 586/IND/2010 IS CONCERNED, GROUND NOS. 2 TO 4 WERE NOT PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE, THEREF ORE, THESE ARE DISMISSED AS SUCH. GROUND NO. 5 IS GENERAL IN N ATURE AND REQUIRES NO DELIBERATION. THE ONLY GROUND REMAINS F OR OUR CONSIDERATION IS GROUND NO. 1. THE CRUX OF ARGUMEN TS ON BEHALF OF THE ASSESSEE IS THAT AS PER THE DIRECTION OF THI S BENCH OF 6 TH SEPTEMBER, 2011 THE TDS CERTIFICATES RECEIVED FROM IPCA LABORATORIES LIMITED SHOWING TOTAL CREDIT OF RS.1,8 4,34,874/- WERE FILED BY THE ASSESSEE. THERE IS A FINDING IN THE IMPUGNED ORDER ALSO THAT THE RECONCILIATION STATEMENT OF ACC OUNTS WITH M/S 5 IPCA LABORATORIES LIMITED WERE NOT FILED BY THE ASS ESSEE. THE LEARNED SENIOR DR CONTENDED THAT IN THE ABSENCE OF RECONCILIATION STATEMENT, IT WAS NOT POSSIBLE FOR T HE REVENUE AUTHORITIES TO ARRIVE AT A JUST CONCLUSION. SINCE T HE NECESSARY DETAILS ARE FILED BEFORE THE TRIBUNAL, THEREFORE, T HESE REQUIRE VERIFICATION AT THE HANDS OF THE ASSESSING OFFICER, CONSEQUENTLY, WE REMAND THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WHO WILL EXAMINE THE CLAIM OF THE ASSESSEE AND THEREAFT ER HE SHOULD DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER PROVI DING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 3. IN ITA NO.587/IND/2010 GROUND NOS. 4 TO 8 WERE N OT PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE THEREFO RE THESE ARE DISMISSED AS SUCH. 4. GROUND NOS. 1 AND 2 ARE IDENTICAL TO GROUND NO. 1 OF ITA NO. 586/IND/2009, THEREFORE, ON THE SAME REASONING BOTH THESE GROUNDS ARE REMANDED BACK TO THE FILE OF THE ASSESS ING OFFICER 6 FOR EXAMINATION/FRESH ADJUDICATION FOR WHICH DUE OP PORTUNITY BE PROVIDED TO THE ASSESSEE. THE ASSESSEE IS AT LIBERT Y TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE HIS CLAIM. THEREF ORE, BOTH THESE GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 5. SO FAR AS GROUND NO. 3 CONFIRMING THE ADDITION O F RS.9,63,704/- AS BUSINESS INCOME IS CONCERNED, IT W AS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DISPOSED OF TH IS GROUND ON THE BASIS OF WRITTEN SUBMISSIONS ONLY WHEREAS TH E ASSESSEE REQUESTED FOR ARGUMENTS ALSO. THERE IS A FINDING IN THE IMPUGNED ORDER ALSO THAT EVEN IF THE CONTENTION OF THE ASSESSEE ACCEPTED, ASSESSEE MAY HAVE MADE INVESTMEN T IN LONG TERM CAPITAL ASSET BECAUSE MOST OF THE SHARE I NVESTMENTS ARE VERY OLD AND HE IS EARNING DIVIDEND INCOME ALSO . THE EXPLANATION FURNISHED BY THE ASSESSEE IN SUPPORT OF SHORT TERM CAPITAL GAIN IS NOT ACCEPTABLE. THERE IS A FURTHE R FINDING THAT THE TOTAL SALES EFFECTED WITHIN A YEAR WERE OF RS.5 0,54,892/- ON WHICH THE ASSESSEE HAS DECLARED SHORT TERM CAPITAL GAIN OF RS. 9,63,764/-. HOWEVER, WITHOUT GOING INTO DELIBERATI ON, WE 7 REMAND THIS ISSUE TO THE FILE OF THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) FOR FRESH ADJUDICATION AFTER P ROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WITH FUR THER LIBERTY TO FURNISH EVIDENCE, IF ANY. THEREFORE, THIS GROUND I S ALLOWED FOR STATISTICAL PURPOSES. THIS APPEAL IS, THEREFORE, PA RTLY ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEALS OF THE ASSESSEE ARE PARTLY AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN IN THE PRESENCE OF LE ARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 20.9.2011. (R.C.SHARMA) (JOGINDER SI NGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20.9.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-