I.T.O.-1(1), Agra v. Smt. Chirongi Devi, Agra

ITA 128/AGR/2010 | 2001-2002
Pronouncement Date: 23-11-2011 | Result: Dismissed

Appeal Details

RSA Number 12820314 RSA 2010
Assessee PAN AAVPD0594P
Bench Agra
Appeal Number ITA 128/AGR/2010
Duration Of Justice 1 year(s) 6 month(s) 19 day(s)
Appellant I.T.O.-1(1), Agra
Respondent Smt. Chirongi Devi, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 23-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 23-11-2011
Date Of Final Hearing 21-11-2011
Next Hearing Date 21-11-2011
Assessment Year 2001-2002
Appeal Filed On 04-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI B.P. JAIN ACCOUNTANT MEMBER ITA NO.128/AGR/2010 ASSESSMENT YEAR: 2001-02 INCOME TAX OFFICER 1(1) VS. SMT. CHIRONGI DEV I AGRA. W/O. SHRI RAM MURTI 3/11 NAI KI MANDI AGRA. (PAN: AAVPD 0594 P). C.O. NO.21/AGR/2011 (IN ITA NO.128/AGR/2010) ASSESSMENT YEAR: 2001-02 SMT. CHIRONGI DEVI VS. INCOME TAX OFFICER 1(1 ) W/O. SHRI RAM MURTI AGRA. NAGLA DHAKRAN NAI KI MANDI AGRA. (PAN: AAVPD 0594 P). (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI A.K. SHARMA JR. D.R. ASSESSEE BY : SHRI K.C. AGARWAL ADVOCATE DATE OF HEARING : 21.11.2011 DATE OF PRONOUNCEMENT : 23.11.2011 ORDER PER BENCH : ITA NO.128/AGR/2010 & C.O. NO.21/AGR/2011 A.Y. 2001-02 2 THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER OF LD. CIT(A)-I AGRA DATED 03.02.2010 FOR THE ASSESSMENT YEAR 2001-02. THE AS SESSEE HAS ALSO FILED THE CROSS OBJECTION AGAINST THE REVENUES APPEAL. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE LD. CIT(A)-I AGRA HAS ERRED IN LAW AN D ON THE FACTS OF THE CASE IN DELETING THE ADDITION OF ` 9 83 884/- + ` 19 678/- ( ` 10 03 562/-) MADE ON ACCOUNT OF LONG TERM CAPITAL G AIN ON SALE OF SHARES AND 2% UNDISCLOSED COMMISSION THEREON EVEN W HEN THE ASSESSEE DID NOT DISCHARGE HIS ONUS TO PROVE THE GE NUINENESS OF SHARE TRANSACTION RECEIPT; 2. THAT THE ORDER OF THE CIT(APPEALS)-1 AGRA IS ER RONEOUS IN LAW AND ON THE FACTS OF THE CASE AND THAT THE ORDER OF THE A.O. BE RESTORED; 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY GROUND DURING THE APPELLATE PROCEEDINGS; 4. THE DEPARTMENT HAS FILED APPEAL BEFORE THE HONB LE ITAT ON IDENTICAL ISSUES IN OTHER CASES 3. THE LD. COUNSEL FOR THE ASSESSEE SHRI K.C. AGARW AL ADVOCATE DURING THE COURSE OF HEARING BEFORE THE BENCH DID NOT PRESS TH E CROSS OBJECTION AND THEREFORE THE SAME IS DISMISSED AS NOT PRESSED. ITA NO.128/AGR/2010 & C.O. NO.21/AGR/2011 A.Y. 2001-02 3 4. AS REGARDS THE REVENUES APPEAL IN GROUND NOS.1 TO 4 THE BRIEF FACTS ARE THAT THE ASSESSEE HAS DECLARED THE SALE OF SHARES AT RS. 9 86 337/- WHICH WERE PURCHASED FOR RS.43 287/- AND ACCORDINGLY LONG TERM CAPITAL G AIN HAD BEEN DECLARED AFTER DEDUCTING THE D.D. CHARGES ETC. THE LONG TERM CAPI TAL GAIN SO DECLARED CLAIMED BY THE ASSESSEE WAS RS.9 40 597/- FOR THE SALE OF 9 400 SHARES OF M/S. PETROCHEM LIMITED. THE SAID SHARES WERE PURCHASED THROUGH M/ S. S.K. FINANCIAL SERVICES ON 13.04.1999. THE ASSESSEE HAS FILED THE COPY OF THE BROKERS NOTE STATEMENT OF ACCOUNT AND RECEIPT OF PAYMENT BY DECLARING IN THE REGULAR RETURN OF INCOME. THE ASSESSEE HAS SOLD THE SHARES THROUGH M/S FRIENDS PO RTFOLIO PVT. LTD. THE PHOTOCOPY OF THE CONTRACT NOTE STATEMENT OF ACCOUN T ETC. WERE FILED ALONG WITH RETURN OF INCOME. THE ASSESSEE FILED THESE DOCUMEN TS AGAIN DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE A.O. ADDRESSED THE REQ UISITION TO M/S S. K. FINANCIAL SERVICES M/S FRIENDS PORTFOLIO PVT. LTD & MA/S PET ROCHEM LIMITED UNDER SECTION 133(6) OF THE INCOME TAX ACT 1961 WHICH REMAINED U NSERVED. THE ASSESSING OFFICER ACCORDINGLY OBSERVED THAT THE SAID TRANSACT IONS MADE BY THE ASSESSEE REMAINED UNVERIFIED THE ASSESSEE FAILED TO PROVE T HE TRANSFER OF SHARES INCREASE IN VALUE OF SHARES WHICH IS HIGHLY ABNORMAL AND UNREAL ISTIC AND ABOVE ALL DURING THE SAME PERIOD THERE WAS A HUGE RACKET IN THE SHARE MA RKET BY UNKNOWN COMPANIES TO WHICH A LARGE NUMBER OF PERSONS HAVE ALLEGEDLY DONE TRANSACTIONS IN SUCH UNKNOWN SHARES. A LARGE NUMBER OF PERSONS INCLUDIN G THE ASSESSEE TRIED TO CONVERT ITA NO.128/AGR/2010 & C.O. NO.21/AGR/2011 A.Y. 2001-02 4 THEIR UNACCOUNTED MONEY INTO WHITE UNDER THE GARB O F BOGUS SHARE TRANSACTION. THE A.O. ON THE BASIS OF HUMAN PROBABILITIES AND RE LYING UPON THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL V S. CIT 214 ITR 801 AND OTHER DECISIONS MENTIONED IN HIS ORDER HELD THAT TH E ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE SALE TRANSACTION WHICH WAS A COL OURABLE DEVICE TO AVOID THE HIGHER RATE OF INCOME TAX AND AVAILING EXEMPTIONS. THE A.O. ADDED RS.9 83 884/- AS INCOME FROM UNDISCLOSED SOURCES UNDER SECTION 68 OF THE ACT AND ALSO ADDED 2% AS COMMISSION DEEMED TO HAVE BEEN PAID FOR OBTAININ G SUCH ACCOMMODATION ENTRIES. 5. BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED HIS CLAIM AND ALSO SUBMITTED ALL THE EVIDENCES WHICH WERE FILED BEFORE THE A.O. ALON G WITH QUOTATION OF THE STOCK EXCHANGE BILLS PHOTOCOPY OF DRAFTS CONTRACT NOTE STATEMENT OF ACCOUNT BANK ACCOUNT COPY OF SHARE CERTIFICATE AND THE LETTER F OR TRANSFER OF SHARES IN ASSESSEES NAME ETC. THE LD. CIT(A) VIDE LETTER DATED 05.03.2 009 ADDRESSED A LETTER TO THE ADDITIONAL D.I.T. (INV.) AND ALSO A SIMILAR LETTER ADDRESSED TO THE A.O. CALLING FOR INFORMATION OF THE DOCUMENTS REGARDING THESE TRANSA CTIONS AVAILABLE WITH THEM. BUT NO REPLY WAS SUBMITTED BY THE SAID ADDL. D.I.T. (INV.) AND THE A.O. THE LD. CIT(A) ACCORDINGLY AFTER APPRECIATING THE EXPLANATI ON GIVEN BY THE ASSESSEE AND THE DOCUMENTS PLACED ON RECORD OBSERVED VIDE PARAGR APH NO.3.20 OF HIS ORDER THAT ITA NO.128/AGR/2010 & C.O. NO.21/AGR/2011 A.Y. 2001-02 5 NONE OF THE DOCUMENTS PRODUCED BY THE ASSESSEE WERE FOUND TO BE FALSE OR FABRICATED. NO ADVERSE FINDING OF THE INVESTIGATIO N WING IN ASSESSEES CASE APPEARS ON RECORD. THERE IS NO COMPARABLE CASE ON RECORD WHEREIN ON SIMILAR FACTS AND CIRCUMSTANCES SUCH CONCLUSION IS DRAWN TO MAKE THE ADDITION IN THE CASE OF THE ASSESSEE. THEREFORE THE LD. CIT(A) DELETED THE AD DITION MADE BY THE A.O. AMOUNTING TO RS.9 83 884/- AND ALSO RS.19 678/- ON ACCOUNT OF DEEMED COMMISSION INCOME. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAD FIL ED VARIOUS DOCUMENTS LIKE CONTRACT NOTES OF THE BROKERS THROUGH WHOM THE SHARES HAVE B EEN PURCHASED AND SOLD THEIR BILLS COPY OF ACCOUNT QUOTATIONS TO PROVE THE MAR KET RATE OF SHARES AND THE PROOF OF TRANSFER OF SHARES IN ASSESSEES NAME AND THE PH OTOCOPY OF THE SHARE CERTIFICATES ETC. NONE OF THE DOCUMENTS HAVE BEEN PROVED TO BE FALSE OR FABRICATED BY ANY OF THE AUTHORITIES BELOW. NO ADVERSE FINDING HAS BEEN PLACED ON RECORD AS AGAINST THE ASSESSEES TRANSACTIONS. THEREFORE THE A.O. IS NO T JUSTIFIED IN TREATING THE SALE OF SHARES BY THE ASSESSEE AS UNACCOUNTED INCOME AND IS NOT FURTHER JUSTIFIED TO TREAT THE DEEMED COMMISSION INCOME. THEREFORE WE FIND N O INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS ALL THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. ITA NO.128/AGR/2010 & C.O. NO.21/AGR/2011 A.Y. 2001-02 6 7. IN THE RESULT APPEAL OF THE REVENUE IN ITA NO.1 28/AGR/2010 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.21/AGR/2011 BO TH ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 23.11.2011). SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 23 RD NOVEMBER 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R. ITAT AGRA BENCH AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY