Shri Pradip S.Birewar, Ahmedabad V. The ACIT.,Cent.Circle-2(4), Ahmedabad

ITSSA 121/AHD/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0471 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 15-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: D K PARIKH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD 0 0 , 0 0 , BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI N.S. SAINI , ACCOUN TANT MEMBER ./ IT (SS) A NO . 121 /AHD/ 20 1 1 [ [ / ASSESSMENT YEAR : 200 8 - 0 9 SHRI PRADIP S. BIREWAR, A/2, 152, ARJUN TOWER, BHUYANGDEV CHAR RASTA, GHATLODIYA, AHMEDABAD PAN : AGJPB 2106 P VS ACIT, CENTRAL CIRCLE 2(4), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE(S) BY : SHRI D.K. PARIKH, AR REVENUE BY : SHRI B.L. YADAV, SR. DR. / DATE OF HEARING : 18 / 12 /2014 / DATE OF PRONOUNCEMENT: 23 / 12 /2014 / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - III, AHMEDABAD DATED 09 . 12 .201 0 . 2. GROUND NOS. 1 & 2 OF THE APPEAL READ AS UNDER : - 1. THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.40,63,648/ - ARRIVED AT BY THE LD AO ESTIMATING THE BROKERAGE AT 0.07% ON THE ALLEGED TRANSACTIONS OF SEJAL SHAH. THE ADDITION MADE BY THE AO IT (SS) A NO . 121 /AHD/20 11 P RADIP S BIREWAR V. ACIT - AY 200 8 - 0 9 - 2 - WITHOUT ANY BASIS BUT ON THE BASIS OF DOCUMENT N OT BELONGING TO THE APPELLANT OUGHT TO HAVE BEEN DELETED. THE SAME BE DELETED NOW. 2. THE LD. CIT(A) FURTHER ERRED BOTH IN LAW AND ON FACTS IN NOT APPRECIATING THE STATEMENT OF FACT S WHEREBY THE APPELLANT HAD DENIED HAVING CARRIED OUT ANY TRANSACTIONS AND T HAT THE ADDITION WAS MADE MERELY ON THE BASIS OF IRRELEVANT AND UNRELIABLE PAPERS NOT PERTAINING TO THE APPELLANT. THE ADDITION MADE ON PRESUMPTION, SURMISE AND CONJECTURES OUGHT TO HAVE BEEN DELETED BY THE CIT(A). IT BE SO HELD NOW AND THE ADDITION BE DEL ETED. 3 . AT THE TIME OF HEARING, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING THESE GROUND S OF APPEAL; THEREFORE, THESE GROUNDS ARE DISMISSED FOR WANT OF PROSECUTION. 4 . GROUND NO.3 OF THE APPEAL READS AS UNDER: - 3 . THE LD. CIT(A) FURTHER ERRED BOTH IN LAW AND ON FACTS IN HOLDING THAT THE RATE OF BROKERAGE AT 0.07% WAS EARNED BY APPELLANT AS REASONABLE ESTIMATE. IT BE SO HELD NOW AND THE WHOLE ADDITION BE DELETED. 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER ESTIMATED BROKERAGE INCOME OF THE ASSESSEE @ 0.07%. THE RELEVANT OBSERVATION OF THE ASSESSING OFFICER IS AS UNDER: - 5.3 IN THE ANNEXURE A - 12 A ND A - 28 WHICH ARE THE COMPUTER PRINTOUT OF SHARE DEALING TRANSACTIONS OF SEJAL SHAH WITH DIFFERENT BROKERS CONTAINS THE INFORMATION OF BROKERAGE IN EACH IT (SS) A NO . 121 /AHD/20 11 P RADIP S BIREWAR V. ACIT - AY 200 8 - 0 9 - 3 - TRANSACTION. AS PER PAGE NO.62 OF ANNEXURE A - 12 THE SHARES OF DLF WAS PURCHASED @ RS.565.50. AFTER INCL UDING BROKERAGE, THE AMOUNT OF PURCHASE COMES TO RS.566.07 PER SHARE. THUS, THE BROKERAGE IS 55 PAISE, WHICH IS 0.09%. ANOTHER EXAMPLE FROM THIS PAGE IS NIFTY WHICH IS PURCHASED @RS.4342/ - AND AFTER BROKERAGE THE PRICE IS MENTIONED AT RS.4345.47. THE RA TE OF BROKERAGE IN THIS CASE COMES TO 0.08%. COMPARING THE VARIOUS TRANSACTIONS IT WAS FOUND THAT THE BROKERAGE IS BETWEEN 0.05% TO 0.1%. THEREFORE, THE AVERAGE RATE OF BROKERAGE IS ESTIMATED AT RS.0.07%. THE DATA OF BILLS FOUND IN ANNEXURE A - 5 WAS PREPA RED THE SAME IS ENCLOSED AS ANNEXURE TO THIS ORDER AS PER THIS, THE TOTAL TRANSACTION OF ASSESSEE FOR SEJAL SHAH FOR THE PERIOD APRIL - 2007 TO JULY 2007 IS AS FOLLOWS: SALE AMOUNT RS.307,80,81,816/ - PURCHASE AMOUNT RS.272,63,30,129/ - RS.580,52,11, 937/ - 5.4 APPLYING THE RATE OF 0.07% BROKERAGE COMES TO RS.40,63,648/ - . THEREFORE, THIS AMOUNT IS CONCERNED AS BROKERAGE INCOME OF THE ASSESSEE AND ADDED TO HIS INCOME. 6. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 7. BEFORE US, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CONTENDED THAT THE BROKERAGE RATE OUGHT TO HAVE BEEN 0.05%. 8. WE FIND THAT THE AUTHORIZED REPRESENTATIVE COULD NOT POINT OUT ANY ERROR IN THE OBSERVATION AND FINDING OF THE LOWER AUTHORITIES. THE AUTHORIZ ED REPRESENTATIVE OF THE ASSESSEE COULD NOT DISPUTE THE FINDING OF THE REVENUE AUTHORITIES THAT THE BROKERAGE CHARGED BY THE ASSESSEE WAS IN THE RANGE OF 0.05% TO 0.1%. NO MATERIAL COULD BE BROUGHT BEFORE US BY THE AUTHORIZED REPRESENTATIVE TO SHOW THAT I N MAXIMUM CASE THE BROKERAGE CHARGE WAS 0.05%. IN ABSENCE OF ANY IT (SS) A NO . 121 /AHD/20 11 P RADIP S BIREWAR V. ACIT - AY 200 8 - 0 9 - 4 - MATERIAL BROUGHT BEFORE US TO SHOW THAT THE ACTUAL BROKERAGE EARNED BY THE ASSESSEE WAS LESSER THAN 0.07% ESTIMATED BY THE REVENUE, WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDERS OF THE LOWER AUTHORITIES. THEREFORE, THIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON TUESDAY , THE 23 RD OF DECEMBER , 2014 AT AHMEDABAD. SD/ - SD/ - ( G.C. GUPTA ) VICE PRESIDENT ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 23 / 12 /2014 * BIJU T , PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III , AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. [ / GUARD FILE . / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD