ACIT, Agra v. Shri Shanti Swaroop Goyal, Agra

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.310/AGR/2009 ASST. YEAR: 2002-03 ASSTT. COMMISSIONER OF INCOME TAX VS. SHRI SHANT I SWAROOP GOYAL CIRCLE-1 AGRA. 20 NEHRU NAGAR AGRA. (PAN : AEXPG 6869 C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA JR. D.R. RESPONDENT BY : SHRI PANKAJ GARGH ADVOCATE ORDER PER H.S. SIDHU J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER OF THE CIT(A) DATED 15.06.2009 ON THE FOLLOWING GROUNDS:- 1. THAT THE CIT (APPEALS)-1 AGRA HAS ERRED IN LAW AND ON THE FACTS IN DELETING THE ADDITION OF ` 7 00 000/- MADE U/S 69 OF I.T. ACT 1961 WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE. 1(A) IN DOING SO THE CIT (APPEALS)-1 AGRA HAS ERR ED IN LAW AND ON THE FACTS IN DELETING THE AFORESAID ADDITION OF ` 7 00 000/- MADE U/S 69 OF I.T. ACT 1961 ON ACCOUNT OF UNEXPLAINED INCOME WITHOUT APPRECIATING THAT THE ONUS OF PROVING THE GENUINENESS OF THE ALLEGED TRANSACTIONS OF SHARES V ESTED ON THE ASSESSEE WHO COULD NOT PROVE THE SAME. 2. THAT THE ORDER OF THE CIT (APPEALS)-1 AGRA BEIN G ERRONEOUS IN LAW AND ON FACTS BE SET ASIDE AND THAT THE ORDER OF THE ASS ESSING OFFICER BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY ONE OR MORE GROUND(S) OF APPEAL DURING THE APPELLATE PR OCEEDINGS. 2. THE MAIN GROUND RAISED BY THE DEPARTMENT IS PERT AINING TO THE ADDITION OF ` 7 00 000/- BEING AMOUNT RECEIVED FROM DEEPAK SECURITIES. THE ASSESSING OFFICER HAS ADDED THE SAME BY 2 HOLDING THAT THE SAME IS UNEXPLAINED INVESTMENT AND TREATED THE SAME UNDER SECTION 69 OF THE INCOME-TAX ACT 1961 (THE ACT HEREINAFTER). THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT ON THE INFORMATION RECEIVED FROM THE JT. DIT (INV.) AGRA REGARDING BOGUS ENTRIES OF LONG TERM CAPITAL GAINS (LTCG) AND BOGUS GIFTS E TC. HE ALSO INFORMED THAT ON ENQUIRY IT HAS BEEN FOUND THAT THE BANK ACCOUNTS FROM WHICH TH E MONEY HAS BEEN TRANSFERRED TO VARIOUS BENEFICIARIES HAVE BEEN OPERATED BY CERTAIN STOCK B ROKERS WHO HAVE BEEN PROVIDING ENTRIES TO THE BENEFICIARIES BY SHOWING THEM TRANSACTIONS MADE BY THEM IN PURCHASE AND SALE OF SHARES OF CERTAIN COMPANIES GIFTS FROM CERTAIN PERSONS WHIC H IN FACT NEVER BOOK PLACE. IN RESPONSE TO THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTIO N 148 OF THE ACT THE ASSESSEE FILED A PHOTOSTAT COPY OF RETURN FILED BY HIM ON 30.10.2002 IN RANGE- I AGRA DECLARING THEREIN INCOME OF ` 9 20 500/- AND AGRICULTURAL INCOME OF ` 63 030/- AND REQUESTED THAT THE SAID RETURN MAY BE TREATED AS A RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT. AFTER EXAMINING THE RECORDS AVAILABLE WITH THE ASSESSING OFFICER H E TREATED THE AMOUNT OF ` 7 00 000/- RECEIVED FROM THE DEEPAK SECURITIES AS UNEXPLAINED INCOME IN TERMS OF SECTION 69 OF THE ACT AND PASSED THE ASSESSMENT ORDER ON 12.12.2007. AGGRIEVED BY T HE SAME THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE THE IMPU GNED ORDER DATED 15.06.2009 DELETED THE ADDITION IN DISPUTE BY ALLOWING THE APPEAL FILED BY THE ASSESSEE. THE REVENUE AGGRIEVED BY THE IMPUGNED ORDER FILED THE PRESENT APPEAL. 3. AT THE TIME OF HEARING THE LD. D.R. RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND ON THE CONTRARY THE LD. COUNSEL FOR THE ASSESSEE RELI ED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. THE LD. COUNSEL FOR THE ASSES SEE ALSO FILED A PAPER BOOK DATED 03.02.2011 CONTAINING PAGES 1 TO 20 IN WHICH HE HAS ATTACHED C OPY OF WRITTEN SUBMISSION FILED BEFORE THE LD. 3 FIRST APPELLATE AUTHORITY ALONG WITH SOME ENCLOSURE S AT PAGE NOS. 1 TO 19 AND COPY OF ACCOUNT OF DEEPAK SECURITIES FOR FINANCIAL YEAR 2002-03 WHICH IS AT PAGE NO.20 OF HIS PAPER BOOK. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US. WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST AP PELLATE AUTHORITY HAS PERUSED THE COPY OF RETURN FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 200 1-02 WHICH REFLECTS INTER ALIA LOSS FROM SHARES INCLUDING CLAIMS OF ` 67 929/- WHICH IS CARRY FORWARDED TO THE SUBSEQUENT YEARS I.E. THE YEAR IN DISPUTE AND REFLECTED UNDER THE HEAD BUSINESS. T HE ASSESSEE HAS ALSO FILED INCOME AND EXPENDITURE ACCOUNT FOR THE FINANCIAL YEAR 2000-01 SHOWING THE ABOVE LOSS FROM SHARE TRADING. HE HAS ALSO FILED COPY OF SHARE TRADING ACCOUNT SHO WING THE AMOUNT CREDITED IN THE ACCOUNT OF DEEPAK SECURITIES AS ALSO A LEDGER ACCOUNT OF DEEPA K SECURITIES IN THE ASSESSEES BOOKS. THE ASSESSEE HAS ALSO SHOWN THE AMOUNT OF ` 9 96 446/- WHICH WAS DUE TO HIM FROM DEEPAK SECURITIES ON ACCOUNT OF DIFFERENCE IN PURCHASE AND SALE OF DSQ SOFTWARE GLOBAL TELE SYSTEM AND DIGITAL EQUIPMENT WHICH ARE LISTED SECURITIES. THE LD. FIRST APPELLATE AUTHORITY HAS PERUSED ALL THE EVIDENCES PRODUCED BY THE ASSESSEE WHICH AL SO INCLUDE THE LEDGER ACCOUNT OF DEEPAK SECURITIES IN HIS BOOKS FOR THE SUBSEQUENT YEAR WHE REIN THE DRAFT DATED 29.11.2001 OF VIJAYA BANK HAS BEEN CREDITED AGAINST THE OUTSTANDING DEBI T BALANCE OF ` 9 96 446/- WHICH SHOWS THE RECEIPT DOES NOT REPRESENT INCOME OF THE YEAR AS IT PERTAINED TO THE PRECEDING YEAR AND THE SHARE TRANSACTION HAS RESULTED IN A LOSS OF ` 67 929/- WHICH WAS BROUGHT FORWARD FROM THE PRECEDI NG YEAR TO THIS YEAR AND SET OFF AGAINST SHARE SPECULA TION PROFIT OF ` 65 932/- RESULTING IN NET LOSS OF ` 2 007/- WHICH ALREADY STANDS FILED BEFORE THE ASSES SING OFFICER WITH WRITTEN SUBMISSIONS DATED 29.11.2007. THE LD. FIRST APPELLATE AUTHORITY THOR OUGHLY GONE THROUGH THE EVIDENCES DISCUSSED ABOVE AND HAS RIGHTLY CAME TO THE CONCLUSION THAT IN THE PRECEDING YEAR THE ASSESSEE HAD SHOWN 4 SHARE TRADING WHICH SHOWS CREDIT OF ` 24 22 612.08 P. AND DEBIT OF ` 24 90 540.72 P. RESULTING IN A NET DEBIT BALANCE I.E. LOSS OF RS.67 928/-. KEEP ING IN VIEW THE WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY WHICH IS ON THE BASIS OF RELEVANT RECORDS PERTAINING TO THE ASSESSMENT YEAR IN DISPUTE WE ARE OF THE CONSIDERE D OPINION THAT THERE IS NO EVIDENCE OR MATERIAL ON RECORD WHICH SHOWS THAT THE AMOUNT OF ` 7 00 000/- DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE REPRESENTS HIS UNEXPLAINED MONEY. THE REFORE WE UPHOLD THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY DATED 15.06.2009 BY DISMI SSING THE APPEAL FILED BY THE REVENUE. 5. IN THE RESULT APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH FEBRUARY 2011). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 11 TH FEBRUARY 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. 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