ITO- 1(3), Agra V. Sri Uttam Prakash Agarwal, Agra

ITA 71/AGR/2010

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0357 (ITAT-AGRA)
• Duration Of Justice: 9 year(s) 1 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 15-06-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 22-03-2010
• Court: TRIBUNAL
• Assessee Lawyers: E PASS ROAD AGRA PAN ABJPA Q
• Keywords: Gift; Accommodation entries
• Section: 142(1); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.71/AGR/2010 ASST. YEAR: 2001-02 INCOME TAX OFFICER - 1(3), VS. SHRI UTTAM PRAKASH AGARWAL, AGRA. 1, PARAKASH ENCLAVE, BYE PASS ROAD, AGRA. (PAN : ABJPA 4672 Q). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD KUMAR, JR. D.R. RESPONDENT BY : SHRI G.K. GOYAL, ADVOCATE ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER DATED 27.01.2010 PASSED BY THE LD. CIT(A)-I, AGRA CHALLENGING THE DE LETION OF ` 13,98,425/- AND ` 20,976/- MADE BY THE ASSESSING OFFICER UNDER SECTIO N 68 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) ON ACCOUNT OF BOGUS EN TRIES OF CAPITAL GAIN AND BROKERAGE THEREON. 2. THE ASSESSING OFFICER ISSUED NOTICE TO THE ASSE SSEE UNDER SECTION 148 OF THE ACT ON THE BASIS OF SOME INFORMATION FOUND DURING T HE COURSE OF INVESTIGATION THAT THE BROKERS IN DISPUTE HAVE PROVIDED BOGUS ENTRIES OF SALE PROCEEDS OF THE 2 SHARES/GIFTS ETC. THROUGH THE BANK ACCOUNT TO THE A SSESSEE. THE ASSESSING OFFICER ALSO ISSUED NOTICES UNDER SECTION 142(1) & 143(2) O F THE ACT TO THE ASSESSEE. IN RESPONSE TO THE SAME, THE LD. AUTHORISED REPRESENTA TIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED NECESSARY DOCUMENTARY E VIDENCES, PROVING THE GENUINENESS OF CAPITAL GAIN/TRANSACTIONS. AFTER EX AMINING THE EVIDENCES PRODUCED BY THE ASSESSEE, THE ASSESSING OFFICER COMPLETED TH E ASSESSMENT BY MAKING THE ADDITION OF ` 13,98,425/- ON ACCOUNT OF UNEXPLAINED RECEIPTS AND ` 20,976/- ON ACCOUNT OF 1.5% FOR COMMISSION AND BROKERAGE ON EST IMATION BASIS PAID FOR PURCHASE OF BOGUS ENTRY VIDE ORDER DATED 12.11.2008 PASSED UNDER SECTION 147/143(3) OF THE ACT. AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO, VIDE IMPUGNED OR DER DATED 27.01.2010, DELETED THE ADDITION IN DISPUTE BY ACCEPTING THE VERSION OF THE ASSESSEE. NOW THE REVENUE HAS FILED THE PRESENT APPEAL. 3. AT THE TIME OF HEARING, THE LD. DEPARTMENTAL REP RESENTATIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER AND, ON THE C ONTRARY, THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER PASSED BY THE LD. FI RST APPELLATE AUTHORITY. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS PASSED BY THE REVENU E AUTHORITIES, AND WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUT HORITY HAS DELETED THE ADDITION OF 3 ` 13,98,425/- AFTER APPRECIATING THE EVIDENCES FURNIS HED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE HER BECAUSE THE LD. FIRST APPELLATE AUTHORITY HAS SPECIFICALLY WRITTEN IN THE IMPUGNED ORDER THAT THE ASSESSEE HAS FILED STATEMENT OF ACCOUNT FOR THE ASSESSMENT YEAR 1999-2000 AS ON 31.03.2000, BILL DATED 17.07.1999 REFLECTING PURCHASE OF 25000 SHARES @ ` 4/- PER SHARE FOR ` 1,00,000/-, DISTINCTIVE NUMBER OF SHARES WERE GIVEN AS 2150001 TO 2175000, SALE BILLS OF SAID SHARES @ ` 56/- PER SHARE FOR ` 14,00,000/- AND CERTIFICATE FROM GK CONSULTANTS LIMITED CONFIRMING THE TRANSFER OF THE SHARES IN TH E NAME OF THE ASSESSEE AND DRAFTS DATED 23.08.2000 OF ` 4,95,631/- AND ` 9,00,000/-. WE ALSO FOUND THAT THE ASSESSING OFFICER HAS ASKED MANY TIMES TO THE ASSES SEE TO FURNISH COPY OF BALANCE SHEET AND COMPLETE NARRATION WITH SUPPORTING DOCUME NTS IN SUPPORT OF ALL DEBIT AND CREDIT ENTRIES IN THE BANK ACCOUNT AND THE SAME HAS BEEN FURNISHED BY THE ASSESSEE TO THE ASSESSING OFFICER. INSPITE OF THE SAME, THE ASSESSING OFFICER ON 12.11.2008 MADE THE ADDITION IN DEPUTE BY DECLARING THE TRANSA CTION OF PURCHASE AND SALE OF SHARES OF G.K. CONSULTANTS LIMITED AS NON-GENUINE A ND CONSEQUENTLY TREATING THE RECEIPT AS INCOME FROM OTHER SOURCES. THE ASSESSIN G OFFICER HAS ALSO ADDED 1.5% OF THE TOTAL REMITTANCE AS COMMISSION DEEMED TO HAV E BEEN PAID FOR OBTAINING SUCH ACCOMMODATION ENTRIES. THE LD. FIRST APPELLATE AUT HORITY HAS RIGHTLY APPRECIATED THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE AS SESSING OFFICER AS WELL AS BEFORE HER AND DELETED THE ADDITION IN DISPUTE BY H OLDING THAT THERE IS NO EVIDENCE ON RECORD TO PROVE THAT THE PURCHASE AND SALE OF IM PUGNED SHARES MADE BY THE 4 ASSESSEE WERE NON-GENUINE. THE ASSESSEE HAS FURNIS HED VARIOUS DOCUMENTS IN SUPPORT OF PURCHASE AND SALE OF IMPUGNED SHARES BUT NONE OF THESE HAVE BEEN FOUND TO BE FALSE OR FABRICATED. THE LD. FIRST APP ELLATE AUTHORITY FURTHER HELD THAT THE INVESTIGATION WING, AGRA HAS ALSO NOT FOUND ANY ADVERSE MATERIAL AGAINST THE ASSESSEE. KEEPING IN VIEW OF THE FACTS AND CIRCUMS TANCES EXPLAINED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELL ATE AUTHORITY HAS RIGHTLY DELETED THE ADDITION OF ` 13,98,425/- AS INCOME FROM OTHER SOURCES AND RIGHTL Y DIRECTED THE ASSESSING OFFICER TO ADOPT LONG TERM CAPITAL GAINS AS PER RETURN. THE LD. FIRST APPELLATE AUTHORITY HAS ALSO RIGHTLY DELETED THE AD DITION OF ` 20,976/- ON ACCOUNT OF COMMISSION, AS THE SAME IS ALSO NOT SUSTAINABLE AS THERE IS NO EVIDENCE TO SHOW THAT ANY SUCH PAYMENT WAS MADE BY THE ASSESSEE TO T HE BROKER. WE UPHOLD THE IMPUGNED ORDER BY DISMISSING THE APPEAL FILED BY TH E REVENUE. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.2011 ). (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 30 TH JUNE, 2011 PBN/* 5 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY