ACIT-3, Mathura V. Sh. Praveen Kumar, Mathura

ITA 84/AGR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7006 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 05-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: G P AGARWAL
• Section: 142(1)

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. 84/AGRA/2010 ASSTT. YEAR : 2003-04 A.C.I.T. 3, MATHURA. VS. SHRI PRAVEEN KUMAR, C/O GOPI KRISHNA NURSING HOME, GENERAL GANJ, MATHURA. (PAN :AGJPK 7646 P) C.O. NO. 32/AGRA/2010 (IN ITA NO. 84/AGRA/2010) ASSTT. YEAR : 2003-04 SHRI PRAVEEN KUMAR, VS. A.C.I.T. 3, MATHURA. C/O GOPI KRISHNA NURSING HOME, GENERAL GANJ, MATHURA. (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI A.K. SHARMA, JR. D.R. FOR ASSESSEE : SHRI G.P. AGARWAL, C.A. ORDER PER H.S. SIDHU, JM: THE REVENUE HAS FILED THE APPEAL AND THE ASSESSEE HAS FILED CROSS OBJECTION AGAINST THE ORDER DATED 27.01.2010 PASSED BY THE LEARNED CIT(A) -I, AGRA. THE GROUNDS RAISED IN REVENUES APPEAL READ AS UNDER : 1. THAT THE LD. CIT(A)-I, AGRA HAS ERRED IN LAW AN D ON FACTS IN DELETING THE INCOME OF RS.10,98,950/- AND RS.2747/- MADE ON ACCOUNT OF BOGUS LONG TERM CAPITAL GAIN AND COMMISSION PAID TO OBTAI N ABOVE ENTRIES RESPECTIVELY WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF SHARE TRANSACTIONS. 2. BY DOING SO, THE LD. CIT(A)-I, AGRA IS BAD IN L AW AND ON FACT BECAUSE IN ALLOWING THE ASSESSEES APPEAL HE HAS CO MPLETELY IGNORED THE FACT THAT 2 IT HAS VEHEMENTLY BEEN PROVED THAT THE AMOUNTS INTR ODUCED AS CASH CREDITS WERE ASSESSEES OWN UNACCOUNTED MONEY ROUTED THROUGH THE LONG TERM CAPITAL GAIN ENTRIES. 3. THAT THE ORDER OF THE CIT(A)-1, AGRA IS ERRONEO US IN LAW AND ON THE FACTS OF THE CASE AND THAT THE ORDER OF THE A.O . BE RESTORED. 2. THE FACTS AS NARRATED BY THE AUTHORITIES BELOW A RE NOT DISPUTED BY BOTH THE PARTIES. THEREFORE, THERE IS NO NEED TO REPEAT THE SAME. 3. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE IN D ISPUTE IN THE PRESENT APPEAL AS WELL AS IN THE CROSS OBJECTION. AS REGARDS TO THE ADDITION OF RS.10,98,950/- AND RS.2747/- MADE ON ACCOUNT OF BOGUS LONG TERM CAPITAL GAIN AND COMMISSION, WE HAVE PERUSED THE ORDER PASSED BY THE REVENUE AUTHORITIES AND WE ARE OF THE CONSIDERED OP INION THAT THE ASSESSING OFFICER ISSUED NOTICE U/S. 148 OF THE INCOME-TAX ACT, 1961 (HEREI NAFTER REFERRED TO AS THE ACT) ON THE BASIS OF SOME INFORMATION RECEIVED FROM INVESTIGATION WING A ND CALLED THE RETURN FROM THE ASSESSEE. IN RESPONSE TO THE SAME, THE ASSESSEE FILED ITS WRITTE N ARGUMENT REGARDING THE ALLEGED ACCOMMODATING ENTRIES DENYING ANY TRANSACTION WITH M/S. S.J. CAPITAL LTD., BY STATING THAT THE ASSESSEE HAS NOT RECEIVED ANY AMOUNT FROM M/S. S.J. CAPITAL LTD. AND NEITHER THE SHARES WERE PURCHASED THROUGH THE ABOVE MENTIONED COMPANY NOR A NY SALE TOOK PLACE THROUGH THEM AND REQUESTED THE ASSESSING OFFICER FOR WITHDRAWING THE NOTICE U/S. 148 OF THE ACT. BUT THE ASSESSING OFFICER AS WELL AS LEARNED FIRST APPELLATE AUTHORIT Y DISMISSED THE PLEA OF THE ASSESSEE AND UPHELD THE ISSUANCE OF NOTICE U/S. 148 OF THE ACT, WHICH T HE ASSESSEE HAS CHALLENGED IN THE CROSS OBJECTION. HOWEVER, AT THE TIME OF HEARING, LD. COU NSEL FOR THE ASSESSEE STATED THAT HE IS NOT PRESSING THE SAME. WE, THEREFORE, DISMISS THE CROSS OBJECTION OF THE ASSESSEE AS NOT PRESSED. 3 4. WE HAVE CONSIDERED THE ARGUMENTS OF BOTH THE PAR TIES ON MERITS, I.E., ON ADDITIONS IN DISPUTE AND WE FIND THAT THE ASSESSEE FILED HIS RET URN OF INCOME ON 30.09.2003 DECLARING INCOME OF RS.2,05,450.63P. THE ASSESSEE HAS ALSO REPLIED T O THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S. 148 OF THE ACT STATING THAT THE ORIGINAL RETUR N MAY BE TREATED AS FILED IN COMPLIANCE TO THE NOTICE U/S. 148 OF THE ACT. THE ASSESSEE HAS ALSO G IVEN THE REPLY OF NOTICE U/S. 142(1) OF THE ACT AND STATED THAT HE HAD EARNED LONG TERM CAPITAL GAI N OF RS.9,98,950/- AND HE ALSO FILED SUPPORTING DOCUMENTARY EVIDENCE, I.E., COPY OF DRAFTS RECEIVED AGAINST SALE CONSIDERATION OF THE AMOUNT IN DISPUTE, COPY OF HIS ACCOUNT IN THE BOOKS OF SHALYA SECURITIES PVT. LTD., 34B, DSF CHAMBERS, 3 & 4/4B, ASIF ALI ROAD, NEW DELHI, SHARE APPLICATION FORM OF SURYA UDYOG LTD., SHOWING THE ASSESSEES SUBSCRIPTION TO THE IPO OF SURYA UDHOG L TD., PHOTOCOPY OF LETTER DATED 21.03.2001 OF SURYA UDYOG LTD. INTIMATING ALLOTMENT OF 10000 SHAR ES. THE ASSESSEE HAS ALSO FILED VARIOUS OTHER DOCUMENTARY EVIDENCES WHICH THE LEARNED FIRST APPEL LATE AUTHORITY HAS MENTIONED IN THE IMPUGNED ORDER, BUT THE ASSESSING OFFICER MADE THE ADDITION IN DISPUTE BY PASSING THE ASSESSMENT ORDER ON 24.12.2008 DISBELIEVING THE VER SION OF THE ASSESSEE. THE LEARNED FIRST APPELLATE AUTHORITY HAS APPRECIATED EACH AND EVERY DOCUMENTS PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. THE LEARNED FIRST APPELLATE AUTHORITY HAS ALSO WRITTEN A LETTER DATED 03.11.2009 ADDRESSED TO THE ADDL. DIT(INV.), AGRA C ALLING FOR THE RELEVANT MATERIAL/EVIDENCE/STATEMENT/BANK ACCOUNT PERTAINING ESPECIALLY TO THE ISSUE IN DISPUTE, BUT THE SAME HAS NOT BEEN SUPPLIED BY THEM AND THE LEARNED FIRST APPELLATE AUTHORITY HAS DELETED THE ADDITION IN DISPUTED BY HOLDING THAT THE COMPANY WH OSE SHARES WERE PURCHASED BY THE ASSESSEE, I.E., SURYA UDYOG LTD. IS NOT BOGUS AND IS IN EXIST ENCE BECAUSE THERE IS NOT MATERIAL/EVIDENCE ON RECORD TO CONTROVERT THE VERSION OF THE ASSESSEE. N O EVIDENCE WAS FOUND TO SHOW THAT THE SHARE PRICES OF SURYA DYOG LTD. WERE RIGGED BY THE ASSESS EE AND THE REVENUE AUTHORITIES HAVE NO 4 POWER TO SAY SO. THE LEARNED FIRST APPELLATE AUTHOR ITY BELIEVED THE VERSION OF THE ASSESSEE DUE TO THE LACK OF EVIDENCE PRODUCED BY THE REVENUE AUTHOR ITIES AND DELETED THE ADDITION IN DISPUTE. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS RIGHTLY A PPRECIATED THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE FIRST APPELLATE AUTHORITY AND HAS RIGHTLY DELETED THE ADDITION IN DISPUTE. WE AGREE WITH THE SAME BY UPHOLDING THE IMPUGNED ORDER IN WHICH THE ADDITION THE ADDITION OF RS.10,98,950/- AND RS.2747 /- HAS RIGHTLY BEEN DELETED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE A ND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.06.20 11. SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 TH JUNE, 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY