ITO, RAJSAMAND V. Smt. Usha Surana W/o Ashok Kumar Surana, RAJSAMAND

ITA 647/JODH/2007

• Counselvise Citation: 64723314 RSA 2007
• Duration Of Justice: 6 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-08-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 24-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Salary income; Accommodation entries

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 644/JODH/2007 (A.Y. 2004-05) THE INCOME-TAX OFFICER VS. SHRI ASHOK KUMAR SURANA WARD 2, S/O ROSHAN LAL SURANA RAJSAMAND LAXMI BAZAR, AMET RAJSAMAND PAN NO. AINPS 5762 N ITA NO. 645/JODH/2007 (A.Y. 2004-05) THE INCOME-TAX OFFICER VS. SHRI ROSHAN LAL SURANA WARD 2, P/O ROSHAN LAL ASHOK KUMAR RAJSAMAND LAXMI BAZAR, AMET RAJSAMAND PAN NO. ADAPS 9298 P ITA NO. 646/JODH/2007 (A.Y. 2004-05) THE INCOME-TAX OFFICER VS. SMT. RUKMANI DEVI SURAN A WARD 2, W/O ROSHAN LAL SURANA RAJSAMAND LAXMI BAZAR, AMET RAJSAMAND PAN NO. AMTPS 7812 B 2 ITA NO. 647/JODH/2007 (A.Y. 2004-05) THE INCOME-TAX OFFICER VS. SMT. USHA SURANA WARD 2, W/O ASHOK KUMAR SURANA RAJSAMAND LAXMI BAZAR, AMET RAJSAMAND PAN NO. AACFN 7897 G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI DEPARTMENT BY : SHRI G.R. KOKANI DATE OF HEARING : 01/08/2013. DATE OF PRONOUNCEMENT : 27/08/2013. ORDER PER BENCH : ALL THESE APPEALS OF THE REVENUE FOR A.Y. 2004-05 IN RESPECT OF DIFFERENT ASSESSEES HAVE ARISEN OUT OF NINE SEPARAT E ORDERS OF THE LD. CIT(A) UDAIPUR. IN ALL THESE APPEALS, COMMON ISSUE S ARE INVOLVED, THEREFORE, FOR THE SAKE OF CONVENIENCE, WE ARE DISP OSING THEM OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3 2. BRIEFLY STATED, THE COMMON FACTS OF THE CASE, EX CEPT FOR THE AMOUNTS, ARE THAT THE ASSESSEE SHRI ASHOK KUMAR SUR ANA EARNED INCOME FROM SALARY, HOUSE PROPERTY AND INTEREST. D URING THE YEAR UNDER CONSIDERATION, THE ASSESSEE ALSO EARNED LONG TERM CAPITAL GAIN OF RS. 14,19,712/- ON SALE OF SHARES AND A SUM OF RS. 10,70,000/- WAS INVESTED IN REC BONDS AND CLAIMED EXEMPTION U/S 54E C OF THE ACT AND BALANCE AMOUNT OF RS. 2,73,232/- WAS SHOWN AS LONG TERM CAPITAL GAIN. THE A.O., AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE, HELD THAT THE TRANSACTIONS TERMED A LONG-TERM CAPITAL GAIN, W ERE IN FACT, BOGUS. THE MAIN GROUND OF THE A.O. FOR HOLDING THE TRANSAC TIONS AS NON- GENUINE WAS THAT THE TRANSACTIONS WERE NOT CONFIRME D BY THE STOCK EXCHANGE AND THE BROKER HAD FAILED TO FURNISH THE I NFORMATION AND PARTICULARS OF TRANSACTION AS REQUIRED. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A), WHO ALLOWED THE GROUN D OF APPEAL OF THE DEPARTMENT. AGGRIEVED, THE DEPARTMENT IS IN APPEAL . 3. THE OTHER GROUND RAISED BY THE DEPARTMENT RELATE S TO ADDITION OF RS. 73,814/- AS COMMISSION PAYMENT. THE A.O. HAS M ADE ADDITION OF RS. 73,814 @ 5% ON RS. 14,76,270/- ON ESTIMATE BASI S ON THE PLEA THAT THE ASSESSEE SHOULD HAVE PAID COMMISSION IN CASH TO THE ALLEGED BROKER TO GET THE AFORESAID ACCOMMODATION ENTRY AND THE PU RCHASE AND SALE OF 4 SHARES HAS NOT BEEN SHOWN IN THE BOOKS OF ACCOUNT. FINDING MERIT IN THE SUBMISSION OF THE LD. A.R. THAT THE ASSESSEE HA D NOT PAID ANY COMMISSION TO THE BROKER AS THE BROKER HAD HIMSELF DEDUCTED THE BROKERAGE WHILE ISSUING CHEQUE FOR SALE CONSIDERATI ON, THE LD. CIT(A) DELETED THIS ADDITION. 4. AT THE VERY OUTSET, IT WAS ARGUED THAT ALMOST AL L THE ABOVE GROUNDS STAND COVERED BY THE DECISION DATED 28.6.20 13 TAKEN BY JODHPUR BENCH OF INCOME TAX APPELLATE TRIBUNAL IN T HE CASE OF ACIT VS. NIRUPARA PATHAN AND OTHERS IN ITA NOS. 345, 346 , 357 & 358/JU/2007 FOR A.Y. 2003-04. THIS FACT COULD NOT BE CONTROVERTED BY THE LD. D.R. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAR EFULLY PERUSED THE ABOVE MENTIONED ORDER DATED 28.6.2013 AND HAVE FOUND THAT THE FACTS OF ALL THESE CASES STAND COVERED IN FAVOUR OF THE ASSESSEE BY THIS DECISION. THE RELEVANT FINDINGS HAVE BEEN GIVEN AT PARA 3.5 TO 4 OF THE SAID ORDER WHICH READ AS UNDER: 3.5 BEFORE US, BOTH THE PARTIES REITERATED THEIR STAND TAKEN BEFORE THE AUTHORITIES BELOW. THE LD. A.R. HAS ALSO RELIED ON HIS WRITTEN SUBMISSIONS AND PAPER BOOKS. AFTER CONSIDE RING THE RIVAL 5 SUBMISSIONS WE ARE IN AGREEMENT WITH THE FINDING OF THE LD. CIT(A) GIVEN IN EACH CASE. THE CONTENTIOUS ISSUE O F LTCG BEING TREATED AS ACCOMMODATION ENTRIES IN ALL THE CASES S TANDS COVERED BY THE FOLLOWING DECISIONS: 1. VELJI DEORAJ & CO. VS. CIT 68 ITR 708 AT 713-71 4 [BOM] 2. GUJARAT STATE FERTILIZERS CO. LTD. VS. DEEPAK N ITRITE LTD AIR [1979] GUJ. 83 3. MOTI RAM VS. CIT [1958] 34 ITR 646 [SC] 3.6 IN ALL THESE CASES, THE COMPLETE DETAILS OF PUR CHASE OF SHARES, BROKERS NOTES, BILLS, COPIES OF ACCOUNTS A ND STATEMENT OF DEMAND HAVE BEEN PRODUCED BY THE ASSESSEE BEFORE TH E A.O. IN SUCH CIRCUMSTANCES, THE ABOVE DECISIONS SUPPORT THE CLAIMS MADE BY THESE ASSESSEES. THEREFORE, RESPECTFULLY FOLLOW ING THE ABOVE DECISIONS WE HAVE TO CONFIRM THE IMPUGNED FINDING O F THE LD. CIT(A). THE COMMON GROUND TAKEN BY THE REVENUE IN THIS REGARD CANNOT BE ALLOWED. 3.7 LIKEWISE, THE ISSUE OF ADDITION MADE ON ACCOUNT OF ALLEGED COMMISSION PAID IN LIEU OF OBTAINING ENTRIES IS CON SEQUENTIAL TO OUR FINDING GIVEN WITH REGARD TO THE ISSUE OF LTCG AS ABOVE. 4. ACCORDINGLY, BOTH THE ABOVE COMMON ISSUES STAND CONFIRMED. THE GROUNDS RAISED BY THE REVENUE IN EA CH OF THE ABOVE STAND DISMISSED. 6 ACCORDINGLY, BY RESPECTFULLY FOLLOWING THE ABOVE T RIBUNAL ORDER, WE CANNOT ALLOW THESE APPEALS OF THE REVENUE. 6. IN THE RESULT, ALL THE APPEALS OF THE REVENUE ST AND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 27 TH AUGUST, 2013. VL/ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR