Smt.Lalitaben Ashwinkumar Jain, Ahmedabad V. Income Tax Officer,Ward-2(1), Ahmedabad

ITA 773/AHD/2015

• Counselvise Citation: 77320514 RSA 2015
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH SR D R
• Assessee Lawyers: P D SHAH
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD .. , ( .) , BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER 1. ./ I.T.A. NO.772/AHD/2015 AY 2006-07 2. ./ I.T.A. NO.773/AHD/2015 AY 2006-07 1.SHRI.ABHAY ASHWINKUMAR JAIN, 32,MASKATI MARKET 1 ST FLOOR, SAKAR BAZAR KALUPUR,AHMEDABAD-380001 2. SMT.LALITABEN ASHWIN- KUMAR JAIN, AHMEDABAD (ADDRESS SAME AS ABOVE) / VS. 1.THE INCOME TAX- OFFICER, WARD-2(1) AHMEDABAD NEW-ITO,WARD-1(2)(1) AHMEDABAD-380 025 2. THE INCOME TAX- OFFICER, WARD-2(1) AHMEDABAD NEW-ITO,WARD-1(2)(3) AHMEDABAD-380 025 % & ./ ./ PAN/GIR NO. : 1. AEIPJ 6042 H 2. ABPPJ 6484 K ( %( / APPELLANTS ) .. ( )*%( / RESPONDENTS ) ASSESSEE(S) BY : SHRI P.D. SHAH, AR REVENUE BY : SHRI DINESH SINGH, SR.DR +, - .& / DATE OF HEARING 16/09/2015 /012 - .& / DATE OF PRONOUNCEMENT 01/10/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : BOTH THESE APPEALS BY DIFFERENT TWO ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOM E TAX(APPEALS)-10, ITA NOS.772 & 773/AHD/201 5 SHRI ABHAY ASHWINKUMAR JAIN VS. ITO & SMT.LALITABEN ASHWINKUMAR JAIN VS. ITO RESPECTIVEL Y ASST.YEAR 2006-07 - 2 - AHMEDABAD [CIT(A) IN SHORT] IDENTICALLY DATED 10/02/2015 P ERTAINING TO ASSESSMENT YEAR (AY) 2006-07. SINCE COMMON ISSUE S ARE INVOLVED IN BOTH THESE APPEALS, THESE WERE HEARD TOGETHER AND A RE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIE NCE. 2. FIRST, WE TAKE UP THE ASSESSEES APPEAL IN ITA N O.772/AHD/2015 FOR AY 2006-07 (IN THE CASE OF SHRI ABHAY ASHWINKUM AR JAIN). THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN LAW AND FACTS BY CONFIRMING THE ACTION OF THE LE ARNED AO IN MAKING ADDITION ON ACCOUNT OF THE SHARE INVESTMENT OF RS.3 5,10,838/- FOR THE YEAR UNDER CONSIDERATION AND THEREFORE THE LEARNED ASSESSING OFFICER BE DIRECTED TO DELETE THE ADDITION OF RS.35,10,838/-, WHILE COMPUTING THE TOTAL INCOME. 2. THAT THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALTER AND DELETE ANY GROUNDS OF APPEAL BEFORE THE FINAL HEARING. 2.1. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 28/03/2014, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE AN ADDITION OF RS.35,10,838/- ON ACCOUNT OF INVESTMENT MADE IN SHARES. AGAINST THE SAID ASSESSMENT ORDER, THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUB MISSIONS DISMISSED ITA NOS.772 & 773/AHD/201 5 SHRI ABHAY ASHWINKUMAR JAIN VS. ITO & SMT.LALITABEN ASHWINKUMAR JAIN VS. ITO RESPECTIVEL Y ASST.YEAR 2006-07 - 3 - THE APPEAL. AGGRIEVED BY THE ORDER OF THE LD.CIT( A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 3. THE LD.COUNSEL FOR THE ASSESSEE FILED WRITTEN SU BMISSIONS AS WELL AS MADE ORAL ARGUMENTS. AT THE OUTSET, LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE NOT GIVEN SUFFICIEN T OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE. HE SUBMITTED THA T AN OPPORTUNITY BE GRANTED TO THE ASSESSEE IN THE INTEREST OF JUSTICE TO ENABLE HIM TO REPRESENT THE CASE BEFORE THE AO. THE LD.COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE ASSESSEE HAS NOTHING TO DO WITH THE SHARE INVES TMENT. IN FACT, THE ACCOUNT OF THE ASSESSEE WAS USED BY THE FATHER OF T HE ASSESSEE. 3.1. ON THE CONTRARY, LD.SR.DR OPPOSED THE SUBMISSI ONS MADE BY THE LD.COUNSEL FOR THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE HAS MADE WRITTEN SUBMISSIONS WHICH ARE REPRODUCED HEREUNDER:- BEFORE THE HON'BLE INCOME TAX APPLEATE TRIBUNAL BE NCH-A- AHMEDABAD NAME OF THE ASSESSEE:- (1) SHRI ABHAYKUMAR ASHWINBH AI JAIN ITA NOS.772 & 773/AHD/201 5 SHRI ABHAY ASHWINKUMAR JAIN VS. ITO & SMT.LALITABEN ASHWINKUMAR JAIN VS. ITO RESPECTIVEL Y ASST.YEAR 2006-07 - 4 - (2) SMT. LALITABEN ASHWINKUMAR JAIN APPEAL NO.: (1) 772/AHD/2015 (2) 773/AHD/2015 ASST.YEAR : 2006-07 APPEAL AGAINST ORDER OF THE LD.AO : 143(3)RWS 147 AMOUNT OF ADDITION : (1) RS.35,10,838 (2) RS.27,1 2,900/- WRITTEN SUBMISSION WITH REGARD TO THE ABOVE APPEALS FOR THE A.Y.2006-0 7, AGAINST THE ORDER UNDER SECTION 143(3) RWS 147 OF THE ACT, THE APPELLANTS W OULD LIKE TO SUBMIT THE FOLLOWING SUBMISSION:- GROUND NO 1: ADDITION ON ACCOUNT OF UNEXPLAINED INV ESTMENT IN SHARES THOUGH PUBLIC ISSUE (1) THE PAYMENT FOR THE SHARE APPLICATIONS HAVE BEE N MADE FROM THE JOINT BANK ACCOUNTS OF THE APPELLANTS WITH NUTAN NAGRIK SAHAKA RI BANK LIMITED-A/C.NO.3260 (HEREINAFTER REFERRED AS NUTAN BANK) AND BANK OF RA JASTHAN LIMITED- A/C.NO.0570301029751 (NOW KNOWN AS ICICI BANK) (REFER PAGE NO.16 TO 21 OF THE PAPER BOOK)) (2) FURTHER, THE DETAILS OF THE DEPOSITS IN THE SAI D BANKS ALONG WITH EVIDENCES FOR THE RECEIPT AND PAYMENT IN THE SAID JOINT BANK ACCOUNTS HAVE BEEN SUBMITTED. IN THIS REGARD PLEASE REFER PAGE NO.22 TO 25 OF THE PAPER BOOK FOR DETAILS OF DEPOSITS WITH NUTAN BANK AND PAGE NO.45 TO 173 OF THE PAPER BOOK, FOR THE EVIDEN CES OF PAYMENTS AND RECEIPTS IN THE SAID JOINT BANKS ACCOU NTS). (3) ACCORDINGLY IN VIEW OF THE ABOVE FACTS, THE PAY MENTS MADE ARE NOT UNEXPLAINED AND THEREFORE NO ADDITION FOR UNEXPLAINED INVESTMEN T IS REQUIRED TO BE MADE. (4) IT IS FURTHER SUBMITTED THAT THE SHARES APPLIED IN THE NAME OF THE APPELLANTS HAVE BEEN CREDITED IN THE RESPECTIVE DEMAT ACCOUNTS (ID 10029352 OF ABHAY AND ID OF 10029336 SMT. LALITA WITH NUTAN BANK) AND FROM WHER E ON SALES, THESE SHARES HAVE BEEN TRANSFERRED TO THE BROKERS ACCOUNTS'S DEMAT OF A.C. JAIN & CO (REFER PG 27-35 OF THE PAPER BOOK) (5) WITH REGARD TO THE OBSERVATION OF THE ID.CIT(A) IN PARA 6.2, OUR POINT WISE SUBMISSION IS AS UNDER:; A. IN CASE OF SMT. LALITA A JAIN ITA NOS.772 & 773/AHD/201 5 SHRI ABHAY ASHWINKUMAR JAIN VS. ITO & SMT.LALITABEN ASHWINKUMAR JAIN VS. ITO RESPECTIVEL Y ASST.YEAR 2006-07 - 5 - (I) (A) IT IS ON THE RECORD THAT THE APPELLANT HAS FILED ST ATEMENT SHOWING WORKING OF INCOME/LOSS FROM THE SALE AND PURCHASES OF THE SHAR ES DURING THE YEAR UNDER CONSIDERATION (REFER PAGE NO.42 AND 43 OF PAPER BOOK). (B) AS THE SAID SHARES HAVE BEEN SOLD BY A C JAIN & CO, ACTIVITY OF TRADING IN SHARES AND LOSS/INCOME FROM SAME WAS NOT REQUIRED TO BE RE FLECTED BY THE APPELLANTS. (II) AS STATED BY SHRI ASHWIN C JAIN IN THE HIS STATEMENT, HE HAS RELATION WITH NEW GENERATION FINVEST PVT. LTD, TO THE EXTENT OF F UNDING FOR THE SHARE APPLICATION. WITHOUT PREJUDICE TO SAME, THE RELATIONSHIP WITH TH E SAID CONCERN IS NOT RELEVANT ,WHEN THE SOURCES OF FUND IS FROM THE APPE LLANTS JOINT BANK ACCOUNTS STATED IN ABOVE PARA 1, ITSELF AND THEREFORE FURTHER, THERE IS NO QUESTION OF PAYM ENT OF INTEREST ALSO FOR THE SAME. (III) THE COMPLETE DETAILS OF RECEIPT AND PAY MENTS IN THE JOINT BANK ACCOUNT WITH NUTAN BANK, HAVE BEEN SUBMITTED.(REFER PAGE NO.22 T O 25 OF OUR PAPER BOOK).PROOF OF HAVING APPLIED FOR SHARE (HNI) IN THE FORM CARBO N COPY OF THE SHARES HAVE BEEN FILED, WHEREIN NAME OF THE COMPANY'S WHOSE Y SHARE APPLICATION HAVE BEEN MADE ARE STATED (REFER PAGE NO 45 TO 67 OF PAPER BOOK) (IV) WITH REGARD TO OBSERVATION OF COPIES OF CHEQUES BOOK OF NOT HAVING SIGNATURE OF THE APPELLANTS, IT IS SUBMITTED THAT THESE ARE N OT CHEQUE, BUT THESE ARE CARBON COPY OF CHEQUE ISSUED. AFTER WRITING THE CHEQUES WITH TH E CARBON COPY OF THE CHEUQE, ORIGINAL CHEQUE IS TAKEN OUT FROM THE CHEQUE BOOK A ND SIGNED BY THE DRAWER AND THEREFORE THE SAID CARBON COPY DOES NOT BEAR THE SI GNATURE. THESE CARBON COPY OF THE CHEQUES BEAR PRE-PRINTED CHEQUE NUMBER AND SAID CHE QUE NUMBER ARE REFLECTED IN THE BANK STATEMENT. (V) IT IS TRUE THAT COPY OF THE BANK STATEME NT OF ACCOUNT WITH BANK OF RAJASTHAN LIMITED (NOW KNOWN AS ICICI BANK) BEARS THE NAME OF A C JAIN & CO. (VI) IT IS TRUE THAT SALES INVOICES FOR SELL ING THE SHARES AND BROKER LEDGER ACCOUNT ARE IN THE NAME OF A C JAIN & CO (BEARING PAN NUMBE R ABDPJ4961B AND/OR MOBILE PHONE NUMBER 9824015082 IN THE NAME OF SHRI ASHWIN C. JAIN-REFER PG 92 AND 93) AS THE SAID ALLOTTED SHARES HAVE BEEN SOLD BY A C JAIN & CO. (VII) THE COPY OF THE BANK STATEMENTS OF LABD HI STOCK AND DERIVATIVES HAS BEEN SHARED WITH THE APPELLANT, AS THE ALLOTTED SHARES H AVE BEEN SOLD THROUGH SAID BROKER ITA NOS.772 & 773/AHD/201 5 SHRI ABHAY ASHWINKUMAR JAIN VS. ITO & SMT.LALITABEN ASHWINKUMAR JAIN VS. ITO RESPECTIVEL Y ASST.YEAR 2006-07 - 6 - BY A C JAIN & CO. IN VIEW OF THE SAID FACT ALSO, NA ME OF THE APPELLANTS DOES NOT FIGURE IN THE SAID BANK STATEMENTS ALSO. B. IN CASE OF SHRI ABHAY A JAIN. (I) WITH REGARD TO POINT NO. (I),(II),(IV) TO (VI)-PLEASE REFER SUBMISSION STATED IN PARA 4(I),(II),(V),(VI) AND (VII) RESPECTIVELY, IN THE CASE OF LALITA A JAIN. (II) POINT NO.(III )- THE ACCOUNT NUMBER 326 0 WITH NUTAN BANK DOES NOT BEARS THE NAME OF THE APPELLANT (ABHAY) AND ONLY ONE PAGE OF BANK STATEMENT SHOWS ACCOUNT NO.1540/3260 BEARS THE NAME OF THE BANK ACC OUNT. IT IS SUBMITTED THAT THE SAID BOTH SAID ACCOUNTS ARE SAME AND IT IS CLEAR FR OM THE AMOUNT OF BALANCE AS ON 6/1/2006 OF RS.17,77,766.41 REFLECTED IN THE BANK S TATEMENT (REFER PG 18 AND 19 OF PAPER BOOK). (6) IN VIEW OF THE ABOVE FACTS, THE SOURCES OF THE AMOUNT OF SHARE APPLICATION IS EXPLAINED AND THEREFORE THE ID.AO BE DIRECTED TO DE LETE THE SAID ADDITIONS. YOUR HONORS ARE REQUESTED TO CONSIDER THE ABOVE SUB MISSION BEFORE PASSING THE ORDER. SD/- DATE 27 TH JULY 2015 ABHAY ASHWIN JAIN & SMT. LALITA ASHWIN JAIN 4.1. IT IS THE CONTENTION OF THE ASSESSEE IS THAT I F AN OPPORTUNITY IS GRANTED, THE ASSESSEE WOULD BE ABLE TO SATISFY THE AO WITH REGARD TO THE SOURCE OF THE MONEY. AFTER CONSIDERING THE TOTALIT Y OF THE FACTS AND MATERIAL PLACED BEFORE US, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE SHOULD BE GRANTED OPPORTUNITY TO PROVE THE SOURCE O F FUNDS UTILIZED FOR THE PURPOSE OF MAKING INVESTMENTS INTO THE SHARE TR ANSACTIONS. TO MEET THE ENDS OF JUSTICE, WE RESTORE THIS ISSUE BACK TO THE FILE OF AO DECISION AFRESH. THE ASSESSEE IS HEREBY DIRECTED TO CO-OPER ATE WITH THE AO DURING ASSESSMENT PROCEEDINGS AND FURNISH THE DETAILS WITH OUT SEEKING ANY ITA NOS.772 & 773/AHD/201 5 SHRI ABHAY ASHWINKUMAR JAIN VS. ITO & SMT.LALITABEN ASHWINKUMAR JAIN VS. ITO RESPECTIVEL Y ASST.YEAR 2006-07 - 7 - ADJOURNMENT. THE AO WOULD COMPLETE THE ASSESSMENT PREFERABLY WITHIN THREE MONTHS ON RECEIPT OF THIS ORDER. 5. IN THE RESULT, ASSESSEES APPEAL (IN THE CASE OF SHRI ABHAY ASHWINKUMAR JAIN) IN ITA NO.772/AHD/2015 FOR AY 200 6-07 IS ALLOWED FOR STATISTICAL PURPOSES. 6. NOW, WE TAKE UP THE ASSESSEES APPEAL (IN THE CA SE OF SMT.LALITABEN A.JAIN) IN ITA NO.773/AHD/2015, WHERE IN FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESSEE:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN LAW AND FACTS BY CONFIRMING THE ACTION OF THE LE ARNED AO IN MAKING ADDITION ON ACCOUNT OF THE SHARE INVESTMENT OF RS.2 7,12,900/- FOR THE YEAR UNDER CONSIDERATION AND THEREFORE THE LEARNED ASSESSING OFFICER BE DIRECTED TO DELETE THE ADDITION OF RS.27,12,900/-, WHILE COMPUTING THE TOTAL INCOME. 2. THAT THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALTER AND DELETE ANY GROUNDS OF APPEAL BEFORE THE FINAL HEARING. 6.1. THE RESPECTIVE REPRESENTATIVES OF THE PARTIES HAVE ADVANCED THEIR ARGUMENTS AS WERE MADE IN THE ASSESSEES APPEAL (SH RI ABHAY ASHWINKUMAR JAIN) IN ITA NO.772/AHD/2015 FOR AY 200 6-07[SUPRA]. SINCE THE FACTS ARE IDENTICAL TO THE FACTS OF ITA N O.772/AHD/2015[SUPRA] IN THIS CASE, THEREFORE TAKING A CONSISTENT VIEW, W E HEREBY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MAT TER BACK TO THE FILE OF ITA NOS.772 & 773/AHD/201 5 SHRI ABHAY ASHWINKUMAR JAIN VS. ITO & SMT.LALITABEN ASHWINKUMAR JAIN VS. ITO RESPECTIVEL Y ASST.YEAR 2006-07 - 8 - AO FOR DE NOVO ASSESSMENT. THUS, GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASSESSEES (IN THE CASE OF SHRI ABHAY ASHWINKUMAR JAIN & SMT.LALITABEN A.JAIN) ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 01 ST DAY OF OCTOBER, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( . ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED 1 / 10 /2015 5...+, .+../ T.C. NAIR, SR. PS !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 678 9 / CONCERNED CIT 4. 9 ( ) / THE CIT(A)-10, AHMEDABAD 5. :; )+78 , . 782 , 6 / DR, ITAT, AHMEDABAD 6. ;< =, / GUARD FILE. / BY ORDER, *: ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD