Smt.Kaushika k Gosrani , Bangalore V. Income Tax Officer Ward-8(3), Bangalore

ITA 836/BANG/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4860 (ITAT-BANGALORE)
• Duration Of Justice: 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 16-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURUPRASAD
• Assessee Lawyers: AMAN S PIRGAL
• Keywords: Accommodation entries

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 83 6 / BANG/201 8 ASSESSMENT YEAR : 20 06 - 07 SMT. KAUSHIKA K. GOSRANI, NO. 85, EKTA KUNJ, 1 ST STAGE, 5 TH PHASE, SHIVAHALLI, BANGALORE 560 096. PAN: AGGPG0788B VS. THE INCOME TAX OFFICER, WARD 8(3), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI AMAN S. PIRGAL, CA RESPONDENT BY : SHRI GURUPRASAD, ADDL. CIT (DR) DATE OF HEARING : 10 . 0 4 .2018 DATE OF PRONOUNCEMENT : 13 . 0 4 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT(A)-6, BANGALORE DATED 14.11.2017 FOR ASSESSMENT YEAR 2006 -07. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-6, BENGALURU HAS ERRED BOTH IN LAW AND ON FACTS IN RE- OPENING THE CASE IN THE ABSENCE OF THE CONDITIONS FOR RE-OPENING BEI NG PRESENT. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-6, BENGALURU HAS ERRED BOTH IN LAW AND ON FACTS BY REL YING ON THE SWORN STATEMENT GIVEN BY AN UNRELATED THIRD PARTY WITH A PRE-CONCEIVED MINDSET THAT THE APPELLANT WAS INVOLVED IN CONVERSI ON OF BLACK MONEY WITHOUT GIVING ANY OPPORTUNITY TO VERIFY THE STATEM ENT OR MAKER OF THE STATEMENT NOR BEING GIVEN AN OPPORTUNITY TO CROSS E XAMINE THE SAME. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-6, BENGALURU HAS FURTHER FAILED TO APPRECIATE THE ASSE SSEE HAS INVESTED IN THE STOCK MARKET THROUGH HIS BROKER IN GOOD FAIT H AND BONA FIDE BELIEF. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL)-6 HAS ITA NO.836/BANG/2018 PAGE 2 OF 4 FURTHER FAILED TO APPRECIATE THE GENUINENESS OF THE EVIDENCE THAT THE ASSESSEE HAS PLACED ON RECORD WHICH INCLUDE, AMONGS T OTHERS, CONTRACT NOTES, DEMAT STATEMENT. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL)-6 HAS FAILED TO APPRECIATE THAT THE SALE OF SHARES HAPPEN ED THOUGH NORMAL PROCESS OF MARKET ROLLING SETTLEMENT AND BY A REGIS TERED DEPOSITORY PARTICIPANT VIZ. BGSE FINANCIALS, WHICH CLEARLY EVI DENCED THAT THE TRANSACTION WAS A GENUINE ONE. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL)-6 HAS FAILED TO APPRECIATE THAT THE SALE PROCEEDS WERE RE CEIVED BY THE ASSESSEE TO THE BANK ACCOUNT OF THE ASSESSEE IN THE CURSE OF NORMAL COURSE OF BANKING TRANSACTION WHICH AT NO STRETCH O F IMAGINATION COULD BE CONSTRUED AS A BOGUS TRANSACTION. 7. THAT THE VARIOUS ADVERSE FINDINGS RECORDED BY TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ARE CONTRARY T O RECORD AND LAW AND THUS UNSUSTAINABLE. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITION MAY PLEASE BE DELETED AS LEARNED MEMBERS O F THE TRIBUNAL MAY DEEM IT PROPER. 8. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE A NY GROUND(S) EITHER BEFORE OR IN THE COURSE OF THE HEARING OF THE APPEA L. 2. BOTH SIDES WERE HEARD AND IT WAS NOTED THAT IN T HIS CASE, THE ISSUE WAS DECIDED AGAINST THE ASSESSEE ON THE BASIS OF THE STATEMENT OF SHRI MUKESH CHOKSI, KEY PERSON OF M/S. MAHASAGAR GROUP OF CASES AS PER WHIC H IT WAS STATED BY HIM THAT HE IS PROVIDING ACCOMMODATION ENTRIES AND IT I S NOTED BY THE AO IN THE ASSESSMENT ORDER THAT THE ASSESSEE IS ONE OF THE BE NEFICIARIES OF SUCH ACCOMMODATION ENTRIES. THIS TRIBUNAL IS TAKING A C ONSISTENT VIEW BY FOLLOWING THE TRIBUNAL ORDER RENDERED IN THE CASE OF SHRI MUK ESH KUMAR SOLANKI VS. ITO IN ITA NO. 2168/BANG/2016 DATED 17.03.2017, IN WHIC H THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF AO FOR FRES H DECISION WITH THE SAME DIRECTIONS AS WERE GIVEN BY HON'BLE KARNATAKA HIGH COURT IN A JUDGMENT RENDERED IN THE CASE OF CHANDRA DEVI KOTHARI IN WRI T PETITION NO. 39370/2014 DATED 02.02.2015.THE LD. DR OF REVENUE SUPPORTED TH E ORDERS OF AUTHORITIES BELOW. ITA NO.836/BANG/2018 PAGE 3 OF 4 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I REPR ODUCE PARAS 5 AND 6 OF THIS TRIBUNAL ORDER RENDERED IN THE CASE OF SHRI MUKESH KUMAR SOLANKI VS. ITO (SUPRA). THE SAME READS UNDER. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FIRS T OF ALL, I REPRODUCE PARA NO.8 OF THE JUDGMENT OF HON'BLE KARN ATAKA HIGH COURT RENDERED IN THE CASE OF M/S CHANDRA DEVI KOTH ARI (SUPRA) AND THIS IS AS UNDER:- 8. IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES AS A DVERTED TO ABOVE, AND AS THE PETITIONER HAS BEEN DENIED AN OPP ORTUNITY OF FAIR HEARING BY PROVIDING COPY OF THE STATEMENT AND RELATED DETAILS REGARDING THE ALLEGED SHARE AMOUNT, I AM OF THE VIEW THAT THE MATTER REQUIRES TO BE RE-CONSIDERED BY THE RESPONDENT BY PROVIDING FAIR AND REASONABLE OPPORTUNITY OF HEA RING TO THE PETITIONER AND BY FURNISHING THE DETAILS/COPY OF TH E STATEMENT BASED ON WHICH THE IMPUGNED ASSESSMENT ORDER HAS BE EN PASSED.' 6. FROM THE ABOVE PARA FROM THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT, IT IS SEEN THAT MATTER WAS RESTORED BAC K TO THE FILE OF THE AO FOR FRESH DECISION AFTER PROVIDING COPY OF THE S TATEMENT OF SHRI MUKESH CHOKSI. AS PER THE FACTS NOTED BY THE HIGH C OURT IN THE EARLIER PARAS OF JUDGMENT AND AS PER THE FACTS OF THE PRESE NT CASE, I FIND THAT THE FACTS ARE SIMILAR AND LD DR OF THE REVENUE ALSO COULD NOT POINT OUT ANY DIFFERENCE IN FACTS AND HENCE, BY RESPECTFULLY FOLLOWING THIS JUDGMENT OF KARNATAKA HIGH COURT, I SET ASIDE THE O RDER OF LD CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO FOR FR ESH DECISION WITH THE SAME DIRECTIONS AS WERE GIVEN BY THE HON'BLE KARNAT AKA HIGH COURT IN THE CASE AS PER PARA NO.8 OF THE JUDGMENT REPROD UCED ABOVE. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FO R AT THIS STAGE REGARDING THE MERIT OF THE ADDITION. 4. RESPECTFULLY FOLLOWING THIS TRIBUNAL ORDER AND I N TURN FOLLOWING THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT RENDERED IN THE CASE O F CHANDRA DEVI KOTHARI (SUPRA), I DECIDE THIS ISSUE IN THE PRESENT CASE AL SO ON SIMILAR LINE AND RESTORE THIS MATTER BACK TO THE FILE OF AO FOR FRESH DECISI ON WITH THE SAME DIRECTIONS AS WERE GIVEN BY HON'BLE KARNATAKA HIGH COURT IN THE C ASE OF CHANDRA DEVI KOTHARI(SUPRA) AS PER PARA 8 OF THE JUDGMENT WHICH IS REPRODUCED ABOVE.IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR REG ARDING MERIT OF THE ADDITION AT THIS STAGE. ITA NO.836/BANG/2018 PAGE 4 OF 4 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH APRIL, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.