SMT KALPANA KHANDELWAL, Jaipur V. ACIT, Jaipur

ITA 59/JPR/2011

• Counselvise Citation: 5923114 RSA 2011
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-11-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 24-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Section: 54F; 148

Judgement Text

1 ITA 59-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 59/JP/2011 ASSTT. YEAR : 2001-02. SMT. KALPANA KHANDELWAL, VS. THE ACIT, CIRCLE-4, ALIAS SEEMA KHANDELWAL, JAIPUR. A-1, MUKHERJEE COLONY, SHASTRI NAGAR, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH AGARWAL RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING : 17.11.2011 DATE OF PRONOUNCEMENT : 09.01.2012. ORDER DATE OF ORDER : 09.01.2012. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2001-02. 2. THE ASSESSEE IS OBJECTING IN UPHOLDING THE ADDIT ION OF RS. 5,76,000/- MADE BY AO ON ACCOUNT OF UNEXPLAINED MONEY RECEIVED BY ASSESSE E. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL AND FILED THE RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 86,420/- WHERE IN LONG TERM CAPITAL GAIN OF RS. 5,55,104/- WAS DECLARED AND CLAIMED EXEMPTED UNDER SECTION 54F OF THE I.T. ACT, 1961 2 BEING INVESTED IN RESIDENTIAL HOUSE PROPERTY. THE RETURN WAS PROCESSED UNDER SECTION 143(1)(A) OF THE I.T. ACT, 1961 AND THE REFUND AS C LAIMED WAS ISSUED TO THE ASSESSEE. 3.1. THE ASSESSMENT WAS REOPENED UNDER SECTION 148 ON THE BASIS OF SOME INFORMATION STATED TO HAVE BEEN RECEIVED FROM THE ACIT, CIRCLE 4(1), AGRA AND BASED ON THE SAID INFORMATION REASSESSMENT ORDER WAS PASSED BY MAKING ADDITION OF RS. 5,76,000/- ON ACCOUNT OF SALES CONSIDERATION RECEIVED FROM THE TR ANSFER OF SHARES BY HOLDING THE SAME AS UNEXPLAINED MONEY IN THE HANDS OF THE ASSESSEE. 4. ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) WHO ALSO WAS IN AGREEMENT WITH THE FINDING OF THE AO. ACCORDINGLY HE CONFIRMED THE AC TION OF THE AO. 5. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 6. THE ASSESSEE HAS FILED DETAILED WRITTEN SUBMISSI ONS EXPLAINING THE BRIEF FACTS OF THE CASE IN RESPECT TO ADDITION MADE AND PLACING RE LIANCE ON VARIOUS CASES. IT WILL BE USEFUL TO REPRODUCE THE WRITTEN SUBMISSIONS HERE AS UNDER :- BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HAS PU RCHASED 8000 SHARES ON 26.10.1999 OF G.K. CONSULTANTS LTD. VIDE BILL NO. N OTC/STOCK/31/021 DATED 31.10.1999 THROUGH STOCK BROKER M/S. MOTLEY S ECURITIES PVT. LTD. FOR A TOTAL SUM OF RS. 20,021/- HAVING DISTINCTIVE NO. 3366201 TO 3374200, COPIES ENCLOSED AT WS PAGE 6-9. THESE SHARES WERE SOLD FOR A TOTAL CONSIDERATION OF RS. 5,76,000/- THROUGH A BROKER NAMELY M/S. AAYUSHI STOCK BROKERS PVT. LTD . VIDE THEIR BILL NO. K-43/P-13/250 DATED 25.01.2001 AND THE SALE CONSIDE RATION WAS RECEIVED THROUGH TWO DEMAND DRAFTS OF RS. 4,99,000/- AND RS. 75,474/-, WHICH WERE DEPOSITED IN THE REGULAR BANK ACCOUNT OF THE ASSESS EE. 7. THE LD. D/R HAS PLACED STRONG RELIANCE ON THE OR DERS OF THE AO AND LD. CIT (A). 3 8. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A) AND WRITTEN SUBMISSIONS, WE FIND THAT THE MAIN REASON FOR MAKING AN ADDITION IS THAT PURCHASE AND SALE OF SHARES WERE NOT GENUINE AS THE COMPANY WHOSE SHARES WERE P URCHASED WAS NOT GENUINE. IT IS SEEN THAT IN CASE OF ASHOK KUMAR AGARWAL IN ITA NO. 129/AGR/2004 ASSESSMENT YEAR 2000-01 SIMILAR ADDITIONS WERE MADE BY THE AO FOR D RAWING INFERENCE THAT THE SHARE TRANSACTION AS NOT GENUINE. THE TRIBUNAL AFTER DIS CUSSING THE ISSUE AT GREAT LENGTH I.E. PARA 21 TO 37 AT PAGES 10 TO 18 OF ITS ORDER FOUND THAT SHARE TRANSACTIONS WERE GENUINE AND ACCORDINGLY THE IMPUGNED ADDITION MADE AND SUSTAINE D WAS DELETED. SIMILARLY IN CASE OF SMT. SEEMA AGARWAL IN ITA NO. 266/AGR/2005 ASSESSME NT YEAR 2001-02 VIDE ORDER DATED 4.8.2006 THE TRIBUNAL DELETED THE ADDITION WH ICH WAS MADE TREATING THE SHARE TRANSACTIONS WERE NOT GENUINE. COPIES OF BOTH THE ORDERS OF THE AGRA BENCH OF THE TRIBUNAL ARE PLACED ON RECORD. IT IS SEEN THAT THE PRESENT ASSESSEE HAS ALSO SOLD THE SHARES OF THE SAME COMPANY THROUGH BROKER M/S. AAYUSHI STO CK BROKERS PVT. LTD. VIDE BILL NO. K-43/P-13/250 DATED 25.01.2001 AND THE AMOUNT OF CO NSIDERATION WAS RECEIVED THROUGH DEMAND DRAFT. THE ASSESSEE HAD PURCHASED 8000 SHAR ES ON 26.10.1999 OF G.K. CONSULTANTS LTD. THROUGH STOCK BROKER M/S. MOTLEY S ECURITIES PVT. LTD. FOR A TOTAL CONSIDERATION OF RS. 20,021/-. THESE SHARES WERE SH OWN IN THE BALANCE SHEET AS ON 31.3.2000 AND IN THE YEAR UNDER CONSIDERATION THESE SHARES WERE SOLD AS MENTIONED ABOVE AND CAPITAL GAIN WAS OFFERED FOR TAXATION. WHATEVE R THE DETAILS WERE REQUIRED BY THE AO I.E. PURCHASE AND SALE OF SHARES SUCH AS CONTRACT N OTE, BILL ETC. WERE FILED. HOWEVER, THE AO SOLELY RELYING ON THE MATERIAL STATED TO HAVE BE EN SUPPLIED BY OTHER AO, DID NOT ACCEPT THE TRANSACTION AS GENUINE. THE AO HAS STAT ED THAT THE COMPANY M/S. G.K. CONSULTANTS LTD. WHOSE SHARES WERE SOLD BY ASSESSEE WAS NOT AT ALL AN 4 EXISTING/IDENTIFIABLE COMPANY DOING ANY BUSINESS. IT IS SEEN THAT THIS COMPANY IS A LISTED COMPANY AND HAVING REGISTERED OFFICE AT DELHI. IT IS FURTHER SEEN THAT THE AO HAS NOT MAINTAINED ANY INDEPENDENT ENQUIRY FROM THE COMPANY THAT WHETHER THE COMPANY HAS SOLD ITS SHARES OR NOT. THE SHARES SOLD THROUGH M/ S. AAYUSHI STOCK BROKERS PVT. LTD. ARE DULY EVIDENCED WITH THE COPY OF BILLS ISSUED BY TH E BROKER ARE PLACED ON RECORD. IT IS FURTHER SEEN THAT AO MADE ADDITION ON THE BASIS OF STATEMENT OF ONE SHRI ASHOK KUMAR GUPTA. HOWEVER, COPY OF STATEMENT OF SHRI ASHOK KU MAR GUPTA WAS NOT CONFRONTED TO THE ASSESSEE. AS STATED ABOVE, IN CASE OF SMT. SEE MA AGARWAL AND SHRI ASHOK KUMAR AGARWAL, THE AGRA BENCH OF THE TRIBUNAL HAS DELETED THE ADDITION. THE COMPANY AND BROKERS ARE COMMON I.E. IN CASE OF SMT. SEEMA AGARW AL, SHRI ASHOK KUMAR AGARWAL AND THE ASSESSEE. THE TRIBUNAL HAS ALREADY HELD THAT T HE COMPANY OF WHICH THE SHARES PURCHASED WERE GENUINE AND THEREAFTER SHARES WERE S OLD THROUGH BROKER. THEREFORE, IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE ARE OF TH E VIEW THAT ADDITION MADE AND SUSTAINED BY LD. CIT (A) IS NOT JUSTIFIED. AS STAT ED ABOVE, ON IDENTICAL FACTS, THE ADDITION HAS BEEN DELETED IN CASE OF SHRI ASHOK KUMAR AGARWA L AND SMT. SEEMA AGARWAL (SUPRA). THEREFORE, FOR THIS REASON ALSO WE HOLD THAT ADDITI ON MADE AND SUSTAINED IS LIABLE TO BE DELETED. ACCORDINGLY WE DELETE THE ADDITION. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 10. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 .01.2012. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- 5 COPY FORWARDED TO :- SMT. KALPANA KHANDELWAL ALIAS SEEMA KHANDELWAL, JAI PUR. THE ACIT, CIRCLE-4, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 59/JP/2011) BY ORDER, AR ITAT JAIPUR.