Anju Sharma, Sirsa v. ITO, W-5, Ludhiana

ITA 451/CHANDI/2019 | 2015-2016
Pronouncement Date: 06-11-2019 | Result: Allowed

Appeal Details

RSA Number 45121514 RSA 2019
Assessee PAN AJWPS5015J
Bench Chandigarh
Appeal Number ITA 451/CHANDI/2019
Duration Of Justice 6 month(s) 27 day(s)
Appellant Anju Sharma, Sirsa
Respondent ITO, W-5, Ludhiana
Appeal Type Income Tax Appeal
Pronouncement Date 06-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 06-11-2019
Date Of Final Hearing 04-11-2019
Next Hearing Date 04-11-2019
Last Hearing Date 18-09-2019
First Hearing Date 18-09-2019
Assessment Year 2015-2016
Appeal Filed On 09-04-2019
Judgment Text
ITA NO.451/CHANDI/2019 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH .. ! ' # $ #% BEFORE: SHRI N.K.SAINI VP & SHRI RAJPAL YADAV JM !./ ITA NO. 451 /CHD/2019 $ * +* / ASSESSMENT YEAR : 2015-16 ANJU SHARMA BAWARI STREET NOHARIA BAZAR SIRSA-HARYANA. PAN :AJWPS 5015 J - VS. ITO WARD-1 SIRSA-HARYANA. ( ./ / APPELLANT) ( 01./ / RESPONDENT) $ *23 4 5 / ASSESSEE BY : SHRI SUDHIR SEHGAL ADVOCATE '% 4 5 / REVENUE BY : : SHRI M.P. DIWEDI SR.DR 6 7 4 38 / DATE OF HEARING : 04/11/2019 #9:+ 4 38 / DATE OF PRONOUNCEMENT : 06/11/2019 / ORDER PER RAJPAL YADAV JUDICIAL MEMBER : ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF LD.CIT(A)-5 LUDHIANA D ATED 22.2.2019 PASSED FOR THE ASSTT.YEAR 2015-16. 2. THE ASSESSEE HAS TAKEN TEN GROUNDS OF APPEAL WHICH ARE NO T IN CONSONANCE WITH THE RULE 8 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963 - THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATUR E. IN BRIEF SHORT ISSUE INVOLVED IN THE PRESENT APPEAL IS WHETHER THE LOSS O F ITA NO.451/CHANDI/2019 RS.75 31 781/- CLAIMED BY THE ASSESSEE ON ACCOUNT OF ST OCK LOSS IN TRADING OF WHEAT IS GENUINE LOSS ? IF YES THEN CAPITAL GAIN AR OSE TO THE ASSESSEE DESERVES TO BE SET OFF AGAINST THIS LOSS OR NOT . 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HER RETURN OF INCOME ON 7.10.2015 DECLARING TOTAL INCOME AT RS.25 79 460 /-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOT ICE UNDER SECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. ON SCRUTINY OF THE ACCOUNTS IT REVEALED TO THE ASSESSING OFFICER THAT THE ASSESSEE HAS INCOME FROM HOUSE PROPERTY AT RS.14 55 272/-; INCOME FR OM LONG TERM CAPITAL GAIN OF RS.78 83 716/-; AND INCOME FROM OTHER SOU RCES AT LOSS (-) OF RS.67 59 527/-. HE FURTHER FOUND THAT THE ASSESSEE HAS DECLARED STOCK LOSS OF RS.75 31 781/- AND NET LOSS OF RS.67 59 527/-. HE CONFRONTED THE ASSESSEE TO DEMONSTRATE AS TO HOW THE ABOVE LOSS HAS OCC URRED TO THE ASSESSEE. IN RESPONSE TO THE QUERY OF THE LD.ASSESSING OF FICER IT WAS CONTENDED THAT SHE HAS PURCHASED WHEAT WHICH WAS STORED WITH PAKKA ARHTIAS GODOWNS AND ON ACCOUNT OF INSECT INFESTATION QUALITY OF THE WHEAT DETERIORATED AND COULD NOT BE SOLD AT THE MARKET PRIC E. THE ASSESSEE HAS FILED DETAILS IN TABULAR FORM EXHIBITING DETAILS OF PERSONS FROM WHOM PURCHASES WERE MADE; DATE OF THE INFESTATION HAS TAKEN PLACE AND WHAT IS THE TOTAL LOSS. SUCH DETAILS HAVE BEEN EXTRACTED B Y THE ASSESSING OFFICER AT PAGE NO.3 OF THE ASSESSMENT ORDER. IN ORDER TO TAKE NOTE OF THESE DETAILS IN SCIENTIFIC MANNER WE DEEM IT APPROPRIA TE TO EXTRACT THE SAME WHICH READ AS UNDER: ITA NO.451/CHANDI/2019 DETAILS OF PURCHASE OF WHEAT AS PER THE COPIES OF A CCOUNTS SUPPLIED BY THE ASSESSEE SR. NO. NAME OF THE PARTY DATE OF INSTRUCTIONS & RTGS AMOUNT OF RTGS RS. QTLS RATE PER QTL RS. COST OF WHEAT RS. COMMI SSION RS. BROKERA GE RS. LABOUR CHARGES RS. SUTLI/PAC KING EXP RS. LOCAL FREIGH T RS. TOTAL PURCHASE AMOUNT RS. SENT TO GODOWN AT 1 M/S.GO PI RAM JAGDISH KUMAR 0S'01/20I4 500000 2472 2069 5114368 2477 2472 4944 495 19778 5144727 BADLI 2. M /S SINGHAL TRADERS 08/01 /2014 500000 2498 2072 5175856 2498 2498 4996 500 19984 5206332 BANNOTH 3 M /S CHHAVI SALES CORPN 08 /01 /2014 500000 2490 2068 5149320 2490 2490 4980 500 19920 5179700 BADLI 4 M/S ANITA INDUSTRIES 08/0 1/2014 500000 2496 2071 5169216 2496 2496 4992 500 19968 5199668 TIMARPUR 5 MS KANSHI RAM SUMIT KUMAR 08/01/2014 500000 2475 2071 5125725 2475 2475 4950 495 19500 5155920 ALIPUR 6 M/S TARN CHAND DEV KUMAR 08/01/2014 500000 2490 2069 5131120 2480 2480 4960 500 19840 5161380 HOLAMBI KALAN 7 M /S MAYA RAM PAWAN KUMAR 08/01/2014 500000 2495 2073 5151405 2485 2485 4970 500 19960 5181805 SAMAYAPUR BADLI DETAILS OF SALE OF WHEAT AS PER THE COPIES OF ACCOU NTS SUPPLIED BY THE ASSESSEE SI. NO NAME OF THE PARTY DATE OF INFORMATION INFECTION OF WHEAT BALANCE PAYMENT MADE ON 19/09/2014 RS. QTLS RATE OF SALE OF WHEAT RS. TOTAL SALE PRICE OF WHEAT RS. COMMI SSION RS. BROKERA GE RS. LABOUR CHARGES RS. SUTLI/ PACKING EXP. RS. GOD OWN RENT RS. INTREST CHARGE OF RS. TOTAL CONSIGNMEN T SALE AMOUNT RS. TOTAL LOSS SUFFERED RS. 1 M/S GOPI RAM JAGDISH KUMAR 09/04/2014 413275 2464.6 1726.7 5114368 2472 2472 4944 510 9S88 3887 4231452 913275 2 M/S SINGHAL TRADERS 09/04/2014 915264 2490.6 1572.4 .3916062 2498 2498 4996 515 9992 4495 3891088 1315264 3 M/S CHHAVI SALES CORPN 09/04/2014 628765 2482.5 1641 7 4075520 2490 2490 4980 510 9960 4155 4050935 1128765 4 M/S ANITA INDUSTRIES 09/04/2014 705063 2488.5 1615.2 4019425 2496 2496 4992 515 9984 4337 3994605 1205063 5 M/S KANSHI RAM SUMIT KUMAR 09/04/2014 426769 246 7.6 1720 4244272 2475 2475 4950 500 9900 5821 4220151 935769 6 M/S TARN (HAND DEV KUMAR 09/04/2014 509277 2472.6 1689.5 4177458 2480 2480 4960 515 9920 4000 4153103 1008277 7 M/S MAYA RANI PAWAN KUMAR 09/04/2014 525369 2477.6 1687.6 4181029 2485 2485 4970 510 9980 4162 4156437 1025368 TOTAL LOSS- 7531781 ITA NO.451/CHANDI/2019 4. THE LD.AO THEREAFTER RECORDED STATEMENT OF THE ASSES SEE AND DOUBTED THE TRANSACTION CARRIED OUT BY THE ASSESSEE. IN HIS OPINION IT WAS A BOGUS TRANSACTION MANIPULATED BY THE ASSESSEE IN ORDER TO EVADE LEVY OF CAPITAL GAIN TAX. IT EMERGES OUT THAT THE ASSESSE E HAS SOLD OFFICE- SPACE IN GURGOAN FOR A SUM OF RS.2.00 CRORES WHICH HAS LED TO A LONG TERM CAPITAL GAIN OF RS.78 83 716/-. IN THIS WAY THE LD.AO DISBELIEVED THE CLAIM OF LOSS AND DISALLOWED THE SAME. APPEAL TO THE CIT( A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 5. THE LD.CIT(A) APART FROM CONCURRING WITH THE ASSESSING O FFICER FURTHER OBSERVED THAT SINCE DELIVERY OF THE WHEAT WAS NOT TAKEN BY THE ASSESSEE THEREFORE EVEN IF IT IS ASSUMED THAT SHE HAS U NDERTAKEN THIS ACTIVITY THEN IT IS A SPECULATIVE LOSS WHICH CANNOT BE SET OFF AGAINST THE LONG TERM CAPITAL GAIN AROSE TO THE ASSESSEE. 6. BEFORE US THE LD.COUNSEL FOR THE ASSESSEE WHILE IMPUGNING ORDERS OF THE LD.REVENUE AUTHORITIES CONTENDED THAT THE LD.AO HAS NOT C ARRIED OUT ANY INVESTIGATION. HE SIMPLY DRAWN INFERENCE OF CERTAIN FA CTS BASED FROM THE INFORMATION SUPPLIED BY THE ASSESSEE. HE TOOK U S THROUGH PARA-5 OF THE ASSESSMENT ORDER WHEREIN THE LD.AO HAS OBSE RVED THAT IN SPAN OF 59 DAYS THE ASSESSEE HAS MANIPULATED A LOSS OF R S.75 LAKHS. FOR THIS FINDING THE LD.AO HAS NOT BROUGHT ANY INFORMATION. AS FAR A S OBJECTION OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS NOT CARRIED OUT ANY TRADING IN WHEAT IS CONCERNED THE ASSESSEE HAS SPECIFIC ALLY RESPONDED TO THE ASSESSING OFFICER DURING HER EXAMINATION THAT HER HUSBAND AND BROTHER-IN-LAW WERE CARRYING OUT THIS ACTIVITY IN EAR LIER ITA NO.451/CHANDI/2019 YEARS AND IN SUBSEQUENT YEARS. THEY HAVE OFFERED PROFIT AS WELL AS LOSS. THIS YEAR THIS ACTIVITY HAS BEEN UNDERTAKEN IN THE NAME OF ASSES SEE ALSO. THE LD.COUNSEL FOR THE ASSESSEE TOOK US THROUGH THE STATEM ENT OF THE ASSESSEE REPRODUCED BY THE ASSESSING OFFICER IN PAGE NO.5 TO 7 OF THE ASSESSMENT. WITH REGARD TO THE OBJECTION OF THE CIT(A) THAT NO DELIVERY WAS TAKEN BY THE ASSESSEE HE RELIED UPON THE JUDGMENT OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. ADITYA MILLS LTD. 209 ITR 933 WHEREIN HONBLE HIGH COURT HAS HELD THAT IF THE ACTUAL DELIVE RY OF GOODS IS GIVEN TO THE AGENT THEN IT IS TO BE CONSTRUED THAT G OODS WERE REMAINED WITH THE AGENTS WHO ACTED ON BEHALF OF THE ASSESSE E. IT IS NOT NECESSARY THAT ACTUAL DELIVERY IS TAKEN BY THE ASSESSEE HIMS ELF. PAKKA ARHTIAS HAS TAKEN DELIVERY OF WHEAT STORED IN THEIR GODOWNS AND CHARGED GODOWN RENT. THIS INDICATES THAT ACTUAL DELIVERY HAS B EEN TAKEN BY THE ASSESSEE. 7. THE LD.DR ON THE OTHER HAND RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES AND SUBMITTED THAT THE ASSESSING OFFICER HAS POINTED OUT VARIOUS DEFECTS IN THE VERSION PUT-FORTH BY THE A SSESSEE IN SUPPORT OF HER CLAIM. SETTINGS OF ALL THESE CIRCUMSTANCES ARE SUCH WHICH CAN PROVE THAT STORY OF THE ASSESSEE IS FALSE. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE THROUGH THE RECORD CAREFULLY. ACCORDING TO THE ASSESSING OFFICER THE ASSESSEE HAS SOLD OFFICE SPACE IN GURGOAN FOR RS.2.00 CRORES WHICH HAS GIV EN RISE TO LONG TERM CAPITAL GAIN OF RS.78 83 716/-. THEREFORE THE A SSESSEE HAS A MOTIVE TO REDUCE TAX LIABILITY BY ADOPTING CERTAIN STRATEGY. HE ITA NO.451/CHANDI/2019 INVESTIGATED THE CLAIM OF THE ASSESSEE ABOUT LOSS IN WHEAT TR ADING WITH THIS ANGLE. THE QUESTION BEFORE US IS WHETHER THE ASSESSING OF FICER IS ABLE TO BRING SUFFICIENT EVIDENCE DEMONSTRATING THE FACT THAT V ERSION PUT- FORTH BY THE ASSESSEE WAS FALSE AND SHE HAS NOT CARRIED OUT ANY ALLEGED TRADING IN WHEAT. LET US EVALUATE THE EVIDENCE SUBMITTED BY THE ASSESSEE AS WELL AS INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER. A PERUSAL OF PAGE NO.3 OF THE ASSESSMENT ORDER EXTRACTED (SUPRA) WOULD INDICATE THAT THE ASSESSEE HAS GIVEN SPECIFIC DETAILS OF PURCHASE OF WHEAT COPIES OF BILLS VOUCHERS ETC. SHE HAS COMPILED ALL THESE DETAILS IN TABULAR FORM WHICH EXHIBITS AMOUNT TRANSMITTED BY THE ASSESSEE THROUGH RTG S RATE AT WHICH WHEAT WAS PURCHASED COMMISSION BROKERAGE LABOUR CHARGES PACKAGING COST ETC. THE ASSESSING OFFICER DID NOT CALL FOR A NY OF THE ALLEGED PAKKA ARHTIAS OR ENTITIES FROM WHOM WHEAT WAS PUR CHASED. HE SIMPLY PUT A DOUBT ON THE BASIS OF CIRCUMSTANCES. FIRS T SUSPICION IS THAT INCIDENCE OF LONG TERM CAPITAL GAIN OCCURRED TO THE ASSES SEE ON 21.7.2014 AND THEREAFTER THE ASSESSEE HAS BOOKED PURC HASE OF WHEAT ITS INFESTATION AND SALE. THE INFESTATION HAS HAPPENED IN ALL THESE S EVEN GODOWNS. THIS WAS NOT ACCEPTABLE TO THE ASSESSING OFFICER. TO OUR MIND IT IS ONE OF STRONG CIRCUMSTANCE AND CORROBORATIVE FACT ORS TO DISBELIEVE THE CLAIM OF THE ASSESSEE BUT IT IS A JUST SUS PICION AND IT SHOULD HAVE BEEN CROSS-VERIFIED BY THE ASSESSING OFFICER BEFO RE DISBELIEVING IT. HE OUGHT TO HAVE ALTEAST ISSUED SUMMONS TO THESE ENTITIES AND TO VERIFY WHETHER THIS ACTIVITY WAS ACTUALLY UNDE RTAKEN BY THE ASSESSEE OR NOT. SUSPICION HOWEVER MAY BE STRONG BUT ONLY ON THE BASIS OF THE SUSPICION CLAIM OF THE ASSESSEE CANNOT BE REJECT ED. FOR ITA NO.451/CHANDI/2019 BUTTRESSING THIS ASPECT WE WOULD LIKE TO REFER DECISIONS OF HONBLE SUPREME COURT IN THE CASE REFERRED BY THE LD.COUNSEL FOR T HE ASSESSEE IN HIS SYNOPSIS VIZ. OMAR SALAY MOHAMED SAIT VS. CIT 37 ITR 1 51 CIT VS. DAULAT RAM RAWATMULL 87 ITR 349 (SC). IN BOTH THESE DEC ISIONS HONBLE SUPREME COURT PROPOUNDED THAT CLAIM OF THE ASSES SEE CANNOT BE REJECTED ON SURMISES SUSPICION AND CONJECTURE. IT IS FO R THE ASSESSING OFFICER TO PROVE THAT APPARENT IS NOT REAL. SIMILARLY AS FA R AS FINDING OF THE CIT(A) THAT THE ALLEGED LOSS IS SPECULATIVE LOSS WE ARE OF THE VIEW THAT THE LD.CIT(A) HAS BASED HIS FINDING ON THE GROUND THAT ACT UAL DELIVERY WAS NOT TAKEN. THE LD.CIT(A) FAILED TO APPRECIATE THAT DELIVERY TAKEN BY THE PAKKA ARHTIAS IN THE CAPACITY OF AGENT OF THE ASSESSEE IS TO BE CONSTRUED AS ACTUAL DELIVERY TAKEN BY THE ASSESSEE. T HEREFORE IN VIEW OF THE ABOVE DISCUSSION WE ARE OF THE VIEW THAT LD.REVENUE AUTHORITIES HAVE FAILED TO BRING CONCLUSIVE EVIDENCE FOR FALSIFYING THE CLAIM OF THE ASSESSEE. WE ALLOW THE APPEAL OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO ACCEPT THE LOSS OF RS.75 31 781/- DISCLOSED BY THE ASSESSEE ON STOCK-LOSS OF WHEAT AND THEREAFTER COMPUTE THE INCOME O F THE ASSESSEE. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 6 TH NOVEMBER 2019. SD/- SD/- (N.K. SAINI) VICE-PRESIDENT (RAJPAL YADAV) JUDICIAL MEMBER CHANDIGARH; DATED 06/11/2019