DCIT, UDAIPUR v. Smt. Hansa Choudhary, RAJSAMAND

ITA 444/JODH/2009 | 2002-2003
Pronouncement Date: 15-12-2011 | Result: Dismissed

Appeal Details

RSA Number 44423314 RSA 2009
Assessee PAN AAPPC9324A
Bench Jodhpur
Appeal Number ITA 444/JODH/2009
Duration Of Justice 2 year(s) 4 month(s) 28 day(s)
Appellant DCIT, UDAIPUR
Respondent Smt. Hansa Choudhary, RAJSAMAND
Appeal Type Income Tax Appeal
Pronouncement Date 15-12-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 15-12-2011
Date Of Final Hearing 09-12-2011
Next Hearing Date 09-12-2011
Assessment Year 2002-2003
Appeal Filed On 17-07-2009
Judgment Text
ITA 444(5)-09 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NOS. 444 & 445/JODH/2009 ASSTT. YEARS : 2002-03 & 2004-05. THE DCIT CENTRAL CIRCLE VS. SMT. HANSA CHOUDHA RY UDAIPUR. W/O SHRI MUKESH CHOUDHARY NAI ABADI KANKROLI DISTT. RAJSAMAND. PAN : AAPPC 9324A (APPELLANT) (RESPONDENT) C.O. NOS. 82 & 83/JODH/2009 ( ARISING OUT OF ITA NOS. 444 & 445/JODH/2009 ) ASSTT. YEARS : 2002-03 & 2004-05. SMT. HANSA CHOUDHARY VS. THE ACIT CIRCLE-2 DISTT. RAJSAMAND. UDAIPUR. ITA NO. 305/JODH/2010 ASSTT. YEAR : 2003-04. THE INCOME-TAX OFFICER VS. SHRI SHANKAR LAL CHO UDHARY WARD-2 RAJSAMAND. HUF NAI ABADI KANKROLI DISTT. RAJSAMAND. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R. KOKANI RESPONDENT BY : SHRI AMIT KOTHARI DATE OF HEARING : 09.12.2011/12.12.2011. DATE OF PRONOUNCEMENT : 15.12.2011 ORDER DATED : 15 /12/2011. PER BENCH : THESE ARE THREE APPEALS BY DEPARTMENT AND TWO CROS S OBJECTIONS BY ASSESSEE FOR ASSESSMENT YEARS 2002-03 03-04 AND 04-05. COMMON ISSUES ARE INVOLVED IN ALL THESE APPEALS T HEREFORE THEY ARE BEING DISPOSED OFF TOGETHER. CROSS OBJECTIONS WERE NOT PRESSED BY LD. A/R THER EFORE THEY ARE DISMISSED AS NOT PRESSED. IN APPEAL FOR ASSESSMENT YEAR 2002-03 THE DEPARTM ENT IS OBJECTING IN DELETING THE ADDITION OF RS. 12 48 481/- MADE ON ACCOUNT OF ACCO MMODATION ENTRY TAKEN FOR LONG TERM CAPITAL GAIN (LTCG) AND UNEXPLAINED COMMISSION EXPENDITURE FOR ASSESSMENT. FOR ASSESSMENT YEARS 2004-05 AND 2003-04 ALSO SIMI LAR GROUND HAS BEEN TAKEN. HOWEVER THE FIGURE OF DELETION OF ADDITION IS RS. 10 55 235/- AND RS. 23 49 000/- RESPECTIVELY AND ALSO COMMISSION EXPENDITURE. THE LD. COUNSEL OF THE ASSESSEE STATED THAT IDENTI CAL ISSUE HAS ALREADY BEEN DISPOSED OFF IN CASE OF SHRI DALPAT SINGH CHOUDHARY IN ITA NOS. 201 & 202/JODH/2009 VIDE JODHPUR BENCH OF THE TRIBUNALS ORDER DATED 30 .11.2011 COPY OF THE ORDER WAS ALSO FILED. IN THIS CASE ALSO THE ISSUE WAS ON ACCOUNT OF ACCOMMODATION ENTRY ON ACCOUNT OF LTCG AT RS. 18 47 560/-. THE LD. D/R WHO APPEARED ON BEHALF OF THE DEPARTMEN T STATED THAT IF ISSUE IS COVERED BY THE ORDER OF THE TRIBUNAL THEN THESE AP PEALS MAY BE DISPOSED OFF. HOWEVER HE PLACED STRONG RELIANCE ON THE ORDER OF THE ASSES SING OFFICER. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE FIND THAT SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBUNAL WHILE DECIDING THE APPEAL IN CASE OF SHRI DALPAT SINGH CHOUDHARY (SUPRA). THE FINDINGS OF THE TRIBUNAL HAVE BEEN RECORDED IN PARAS 11 TO 16 AT PAGES 5 TO 9 ARE AS UNDER :- 11. WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERED THEM CAREFULLY. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING OTHE R MATERIAL ON RECORD WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN HIS AP PEAL. IT IS SEEN THAT ASSESSEE PURCHASED SHARES OF M/S. ELITE CAPITAL & M ANAGEMENT SERVICES PVT. LTD. OF 61 700 SHARES FOR A CONSIDERATION OF R S. 92 550/-. THESE SHARES WERE PURCHASED BETWEEN 10 TH APRIL 2000 TO 17 TH MAY 2000. THE PAYMENTS WERE MADE IN CASH COPY OF LEDGER ACCOUNT IS PLACED AT PAGE 228. THE COPY OF CERTIFICATE CONFIRMING THE SALE O F SHARES TO ASSESSEE IS PLACED AT PAGE 229 OF THE PAPER BOOK. COPY OF ACCO UNT OF M/S. ELITE CAPITAL & MANAGEMENT SERVICES PVT. LTD. CERTIFYING THAT 61 700 SHARES HAVE BEEN DEMATED IN THE NAME OF THE ASSESSEE IS PL ACED AT PAGE 320 OF THE PAPER BOOK. THEREAFTER THE ASSESSEE SOLD SHARES NU MBERING 20 000 ON 28.8.2001 THROUGH M/S. MKM FINSE PVT. LTD. COPY OF WHICH IS PLACED AT PAGE 231 OF THE PAPER BOOK. THEREAFTER ASSESSEE SOL D FURTHER 41 700 SHARES COPY OF THE SAME IS PLACED AT PAGE 232. TH ESE SHARES WERE SOLD VIDE BILL DATED 24.8.2001. PAYMENTS HAVE BEEN RECE IVED THROUGH ACCOUNT PAYEE CHEQUE. THE CERTIFICATE FROM M/S. STOCK HOLD ING CORPORATION LTD. THROUGH WHOM THE SHARES ARE DELIVERED ARE PLACED AT PAGES 235 AND 236 OF THE PAPER BOOK. AFTER GOING THROUGH DETAILS IT IS CLEARLY SEEN THAT ASSESSEE PURCHASED SHARES IN EARLIER YEAR. THEY WERE SHOWN I N THE BALANCE SHEET WHICH WAS FILED ALONG WITH THE RETURN OF INCOME. T HE PAYMENTS WERE MADE THROUGH BOOKS OF ACCOUNT WHICH HAS NOT BEEN DO UBTED. THE SHARES BELONG TO A LISTED COMPANY WHICH IS ALSO NOT IN DOU BT. THE COMPANY ITSELF HAS ISSUED CERTIFICATE THAT ALL THESE SHARES HAVE B EEN DEMATED COPY OF THE SAME IS PLACED ON RECORD. ONCE THE PURCHASE OF SHA RES IS NOT DOUBTED THEN IN OUR CONSIDERED VIEW THE SALE OF SAME SHARES SHO ULD NOT HAVE BEEN DOUBTED. IF ASSESSEE HAS INVESTED HIS OWN MONEY UN DER THE GARB OF FICTITIOUS SALE OF SHARES THEN WHERE THE ACTUAL SHA RES PURCHASED BY ASSESSEE WHICH WERE DULY DEMATED HAVE GONE. THIS FACT HAS N OT BEEN CONSIDERED EITHER BY ASSESSING OFFICER OR BY LD. CIT (A) WHO O RIGINALLY REJECTED THE CLAIM OF THE ASSESSEE. WHEN THIS FACT WAS BROUGHT TO THE NOTICE OF LD. CIT (A) BY FILING MISCELLANEOUS APPLICATION UNDER SECTI ON 154 THAT THE ASSESSEE HAS PURCHASED THE SHARES OF LISTED COMPANY AND THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY RATHER HE HAS NOT ED WRONG FACT THEN LD. CIT (A) REALIZED THIS MISTAKE AND RECTIFIED HIS ORD ER UNDER SECTION 154 BY ALLOWING THE CLAIM OF ASSESSEE. ONLY ON THE BASIS OF STATEMENT OF SHRI MAHESH BATRA THE ASSESSING OFFICER HAS DRAWN ADVER SE INFERENCE IN CASE OF ASSESSEE. IT MAY BE TRUE THAT SHRI MAHESH BATRA MAY HAVE INDULGED IN ISSUING ACCOMMODATION ENTRIES BUT IT CAN ALSO BE PO SSIBLE THAT SHRI MAHESH BATRA MAY ALSO BE DOING GENUINE TRANSACTION. IT IS NOT A CASE THAT HE IS ONLY PROVIDING BOGUS ENTRIES. STATEMENT OF SHRI MAHESH BATRA IS NOT AVAILABLE ON RECORD. THE LD. COUNSEL OF THE AS SESSEE HAS STATED THAT THE STATEMENT OF SHRI MAHESH BATRA HAS NOT BEEN PROVIDE D TO THEM. THE DEPARTMENT HAS NOT FILED COPY OF THE STATEMENT OF S HRI BATRA. THEREFORE IN OUR VIEW SINCE THE PURCHASE OF SHARES IS GENUINE THE SALE OF THE SAME SHARES SHOULD HAVE BEEN TREATED AS GENUINE. SIMILA R ISSUE CAME BEFORE THE VARIOUS BENCHES OF THE TRIBUNAL AND TIME AND AGAIN THE BENCHES HAVE DECIDED THAT WITHOUT BRINGING ANY COGENT MATERIAL O N RECORD THE CLAIM OF ASSESSEE CANNOT BE DENIED IN REGARD TO SALE OF SHAR ES. 12. ONE OF THE DECISIONS DECIDED IN CASE OF BAIJNAT H AGARWAL 43 DTR 149 BY AGRA BENCH OF THE TRIBUNAL. IN THIS CASE AL SO IN SIMILAR MANNER THE ADDITION WAS MADE BY TREATING THE SALE OF SHARES AS NOT GENUINE. THE TRIBUNAL HELD THAT PURCHASE OF SHARES WERE FOUND GE NUINE AND THEY HAVE BEEN SOLD THROUGH PROPER BANKING CHANNEL. THEREFORE NO ADVERSE INFERENCE CAN BE DRAWN AGAINST ASSESSEE. ACCORDING LY THE ADDITION MADE UNDER SECTION 68 WAS DELETED AND THE ASSESSING OFFI CER WAS DIRECTED TO ACCEPT THE CAPITAL GAIN SHOWN BY ASSESSEE. 13. SIMILAR VIEW HAS BEEN EXPRESSED IN CASE OF SMT. BIBI RANI BANSAL 43 DTR 279 (AGRA). IN CASE OF SMT. KUSUMLATA 105 TTJ 265 THE JODHPUR BENCH OF THE TRIBUNAL HAS DECIDED THE SIMIL AR ISSUE IN FAVOUR OF THE ASSESSEE WHEREIN IT HAS BEEN HELD THAT THE BURD EN OF PROVING THE TRANSACTION IS ALWAYS ON THE PERSON ASSERTING THE T RANSACTION TO BE BOGUS AND THIS BURDEN HAS TO BE STRICTLY DISCHARGED BY AD DUCING LEGAL EVIDENCE OF CHARACTER WHICH WOULD EITHER DIRECTLY PROVE THE FA CT OF BOGUS OR ESTABLISH THE CIRCUMSTANCES UNERRINGLY AND REASONABLY RAISING AN INFERENCE TO THAT EFFECT. THE ASSESSEE MADE PAYMENT FOR THE PURCHASE FOR THE YEAR ON SOURCE THROUGH BANKING CHANNEL. THE SHARES WERE TRANSFERR ED IN THE NAME OF THE ASSESSEE AND WERE HELD BY HER FOR MORE THAN ONE YEA R. THERE IS NO RELATIONSHIP BETWEEN THE PARTIES FROM WHOM THE ASSE SSEE HAS PURCHASED THE SHARES AND THE PARTY TO WHOM THESE SHARES WERE SOLD. THE SHARES WERE DELIVERED AFTER ITS SALE AND THE ASSESSEE DID NOT R EMAIN IN POSSESSION OF THOSE SHARES. 14. FROM THE ABOVE FACTS IT IS ESTABLISHED THAT TH E ASSESSEE ACQUIRED THE SHARES TO EARN PROFIT. THERE IS NO EVIDENCE EX CEPT SPECULATION THAT THIS PROFIT IS NOT FROM THE SALE OF SHARES. THE ASSESSI NG OFFICER HAS FAILED TO ESTABLISH HIS CASE AND TO DISCHARGE THE REQUISITE B URDEN LAY UPON HIM. ACCORDINGLY THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. 15. SIMILAR FACTS ARE INVOLVED IN THE PRESENT CASE. IN THE CASE IN HAND THE SHARES WERE ALSO PURCHASED MORE THEN ONE YEAR B EFORE THE DATE OF SALE. THE ASSESSEE IS NOT POSSESSING THOSE SHARES AND THE Y HAVE BEEN TRANSFERRED IN THE NAME OF THE BUYER THROUGH DEMAT ACCOUNT. TH E PAYMENT HAD BEEN RECEIVED THROUGH PROPER BANKING CHANNEL. THERE IS NO RECORD THAT THE ASSESSEE HAD PAID HIS OWN MONEY IN CASH FOR ISSUING CHEQUE IN HIS NAME. AS STATED ABOVE THE PURCHASE IS NOT IN DOUBT. THER EFORE IN OUR CONSIDERED VIEW ASSESSEE HAS DISCHARGED HIS ONUS BY FILING AL L DETAILS WHEREAS THE ASSESSING OFFICER HAS FAILED TO DISCHARGE HIS ONUS TO PROVE THAT ASSESSEE HAD INVESTED HIS OWN MONEY EXCEPT RELYING ON STATEM ENT OF A THIRD PERSON WHO HAS GIVEN A GENERAL STATEMENT THAT HE WAS ISSUI NG ACCOMMODATION ENTRIES TO SOME PERSONS. NO NAME OF THE ASSESSEE IS GIVEN BY SHRI MAHESH BATRA WHILE RECORDING HIS STATEMENT UNDER SECTION 1 32(4). SIMILAR VIEW HAS BEEN EXPRESSED IN CASE OF CHANDRESH KUMAR MAHES HWARI 16 DTR 114. 16. THE HONBLE RAJASTHAN HIGH COURT IN CASE OF SMT . PUSHPA MALPANI 49 DTR 312 (RAJ.) HAS HELD THAT THE CIT (A) AND THE TRIBUNAL HAVING ACCEPTED THE GENUINENESS OF SALE OF SHARES BY ASSES SEE IN VIEW OF THE FACT THAT ASSESSEE HAS FURNISHED SEVERAL RELEVANT DOCUME NTS TO PROVE THE TRANSACTION AND DIRECTED THE ASSESSING OFFICER TO T REAT THE SALE CONSIDERATION AS LONG TERM CAPITAL GAIN INSTEAD OF INCOME FROM OTHER SOURCES NO SUBSTANTIAL QUESTION OF LAW ARISES. I N THIS CASE ALSO THE ASSESSING OFFICER MADE ADDITION ON THE BASIS OF CER TAIN ADMISSION BY BROKER. THE LD. CIT (A) AFTER EXAMINING THE ISSUE IN DETAIL FOUND THAT THE ASSESSEE HAS PURCHASED SHARES WILL IN ADVANCE AND T HEREAFTER THEY WERE SOLD IN SUBSEQUENT YEAR THROUGH PROPER BANKING CHAN NEL. ALL THE DETAILS RELATING TO PURCHASE OF SHARES AND SALE OF SHARES W ERE FILED AND EXAMINED AND THEN ONLY THE ADDITION WAS DELETED WHICH HAS BE EN AFFIRMED BY THE HONBLE HIGH COURT AS STATED ABOVE. SIMILAR VIEW H AS BEEN EXPRESSED BY THE JAIPUR BENCH OF THE TRIBUNAL IN CASE OF SHRI SA NJAY RATHORE IN ITA NO. 110 & 111/JP/2009 VIDE ORDER DATED 29.10.2010. IN THIS ORDER BOTH THE PRESENT MEMBERS ARE PARTY TO THE SAID ORDER. I N THIS CASE ALSO THE ASSESSING OFFICER REJECTED THE CASE BASED ON A GENE RAL STATEMENT GIVE BY SHRI B.C. PUROHIT. THE STATEMENT WAS GIVEN SOMETIM E IN THE YEAR OF 2005- 06 WHEREAS THE TRANSACTION RELATED TO ASSESSMENT YE ARS 2003-04 AND 04-05. THE ASSESSING OFFICER DRAWING ADVERSE INFERENCE ON THE BASIS OF A GENERAL STATEMENT OF SHRI B.C. PUROHIT MADE THE ADDITION. THE LD. CIT (A) DELETED THOSE ADDITIONS AND ON SECOND APPEAL BY DEPARTMENT THE ORDER OF LD. CIT (A) WAS CONFIRMED. THE ISSUE WAS EXAMINED AT GREAT LENGTH AND THEN ONLY THE ORDER OF LD. CIT (A) WAS CONFIRMED. HERE ALSO THE FACTS ARE SIMILAR. A GENERAL STATEMENT GIVEN BY SHRI BATRA WAS RELIED UP ON BY ASSESSING OFFICER AND IT DID NOT BORNE OUT THAT WHERE THE STA TEMENT WAS RECORDED AND IN WHAT CONNECTION THE STATEMENT WAS RECORDED AND H OW IT WAS RELATED TO THE ASSESSEES CASE. THEREFORE IN OUR VIEW THIS STATEMENT GIVEN BY SHRI BATRA SHOULD NOT HAVE BEEN CONSIDERED BY ASSESSING OFFICER AGAINST THE SO MUCH DETAILS FILED BEFORE HIM WHICH WERE NOT EXAMIN ED BY MAKING ENQUIRY FROM THE RESPECTIVE PARTY. IN VIEW OF THES E FACTS AND CIRCUMSTANCES WE ALLOW THE APPEAL OF THE ASSESSEE BY DELETING THE IMPUGNED ADDITION MADE AND DIRECT THE ASSESSING OFF ICER TO ACCEPT THE CAPITAL GAIN SHOWN ON ACCOUNT OF SALE OF SHARES. UNDISPUTEDLY THE FACTS REVENUE SIMILAR AND THERE FORE FOLLOWING THE DECISION IN CASE OF SHRI DALPAT SINGH CHOUDHARY (SUPRA) WE CON FIRM THE ORDER OF LD. CIT (A) FOR ALL THE YEARS HERE ALSO. IN THE RESULT APPEALS OF THE DEPARTMENT AS WELL A S CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 15.12 .2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR COPY FORWARDED TO :- SMT. HANSA CHOUDHARY RAJSAMAND. SHRI SHANKAR LAL CHOUDHARY RAJSAMAND. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 444(5)/JODH/2009). BY ORDER AR ITAT JODHPUR.