ITO, Agra v. Smt. Rashimi Sharma, Agra

ITA 687/AGR/2008 | 2000-2001
Pronouncement Date: 21-04-2010 | Result: Dismissed

Appeal Details

RSA Number 68720314 RSA 2008
Bench Agra
Appeal Number ITA 687/AGR/2008
Duration Of Justice 1 year(s) 4 month(s) 11 day(s)
Appellant ITO, Agra
Respondent Smt. Rashimi Sharma, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 21-04-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 23-04-2010
Date Of Final Hearing 21-04-2010
Next Hearing Date 21-04-2010
Assessment Year 2000-2001
Appeal Filed On 10-12-2008
Judgment Text
1 ITA 687-08 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH : AGRA. ( BEFORE SHRI R.K. GUPTA AND SHRI P.K. BANSAL ) ITA NO. 687/AG./2008 ASSTT. YEAR : 2000-01. THE INCOME-TAX OFFICER VS. SMT. ROHINI SHARMA WARD 4(3) AGRA. C/O M/S. BAJRANG AUTO MOBILES SHAHDRA AGRA. (APPELLANT) (RESPONDENT) C.O. NO. 01/AG/2009 ( ARISING OUT OF ITA NO. 687/AG/2008 ) ASSTT. YEAR : 2000-01. SMT. ROHINI SHARMA VS. THE INCOME-TAX OFFICER AGRA. WARD 4(3) AGRA. (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY : SHRI R.C. SHARMA JR. D/R ASSESSEE BY : SHRI ANURAG SINHA ADVOCATE ORDER PER R.K. GUPTA J.M. THIS IS AN APPEAL BY DEPARTMENT AND THE CROSS OBJE CTION BY ASSESSEE RELATING TO ASSESSMENT YEAR 2000-01. 2. THE LD. COUNSEL OF THE ASSESSEE WITHDRAWN THE CR OSS OBJECTION FILED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS. ACCORDIN GLY THE CROSS OBJECTION IS DISMISSED AS WITHDRAWN. 2 3. IN THE APPEAL OF THE DEPARTMENT THE DEPARTMENT IS OBJECTING IN DELETING THE ADDITION OF RS. 14 05 622/- MADE UNDER SECTION 68 A S UNEXPLAINED INCOME OF THE ASSESSEE. 4. THE LD. D/R HAS PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER AND THE STATEMENT OF FACTS ENCLOSED ALONG WITH THE APPEAL M EMO BY THE DEPARTMENT. ON THE OTHER HAND THE LD. A/R HAS PLACED RELIANCE ON THE ORDER OF LD. CIT (A) AND ON THE WRITTEN SUBMISSIONS PLACED ON RECORD. THE APPEAL OF THE DEP ARTMENT IS DISPOSED OFF IN THE FOLLOWING MANNER. 5. THE BRIEFLY STATED FACTS ARE THAT THE ASSESSEE H AD PURCHASED SHARE OF M/S. B.S. HOLDINGS LTD. DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 1999-2000. THESE SHARES WERE SOLD DURING THE YEAR UNDER CONSIDERATIO N THROUGH TWO SHARE BROKERS OF DELHI I.E. M/S. FRIENDS PORT FOLIO P. LTD. AND M/S. AGGAR WAL & COMPANY. THE SALE THROUGH M/S. FRIENDS PORT FOLIO P. LTD. RESULTED IN LONG TE RM CAPITAL GAIN OF RS. 3 98 220 AND LONG TERM CAPITAL GAIN OF RS. 10 10 267/- IN TRANSACTION THROUGH M/S. AGGARWALA & CO. TOTAL LONG TERM CAPITAL GAINS THUS AMOUNT TO RS. 14 08 487/-. THE ASSESSEE HAD DISCLOSED THE LONG TERM CAPITAL GAINS IN RETURN OF INCOME AND HAD CLAIMED EXEMPTION AS THE ENTIRE AMOUNT HAD BEEN INVESTED IN APPROVED SECURITIES. A LONG WITH THE RETURN COPIES OF SALE INVOICES AND COPIES OF BANK DRAFTS WERE FILED. SUBS EQUENTLY SEARCH OPERATIONS WERE CARRIED OUT AGAINST THE STOCK BROKERS. ON THE BASI S OF EVIDENCES DISCOVERED AND STATEMENT OF THE PARTY IT WAS INFERRED THAT THE BROKERS HAD BEEN CARRYING OUT HAWALA BUSINESS. THIS INFORMATION WAS CONVEYED TO OTHER OFFICERS. ON REC EIPT OF THIS INFORMATION THE ASSESSING OFFICER INITIATED PROCEEDINGS UNDER SECTION 147 AND ULTIMATELY NOT FINDING THE EXPLANATION OF THE ASSESSEE SATISFIED MADE THE IMPUGNED ADDITI ON BY THE ASSESSING OFFICER TREATING THE INCOME AS FROM UNEXPLAINED SOURCES. THE VALIDI TY OF PROCEEDINGS WAS CHALLENGED 3 BEFORE THE LD. CIT (A) ON THE GROUND THAT THERE WAS NO INFORMATION WITH THE ASSESSING OFFICER FOR FORMATION OF REASONS TO BELIEVE THE AS SESSING OFFICER DID NOT APPLY HIS MIND BUT ACTED ON THE OPINION OF SOME OTHER OFFICER AND THERE WAS NO INFORMATION THAT THE BROKERS HAD SPECIFICALLY NAMED THE ASSESSEE AS ONE OF THE BENEFICIARIES. IT WAS FURTHER SUBMITTED THAT ASSESSEE HAD MADE PURCHASES IN THE P RECEDING YEAR OF THE SAME SHARES WHICH WERE SOLD DURING THE YEAR UNDER CONSIDERATION AND THE PURCHASE OF SHARES WERE NOT DOUBTED. IN SUPPORT OF THE ABOVE CONTENTION VARIO US CASE LAWS WERE RELIED UPON BEFORE LD. CIT (A). AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD THE LD. CIT (A) FOUND THAT THERE IS NO DIRECT EVIDENCE AGAINST ASSESSEE TO HOLD THAT THE SALE OF SHARES THROUGH TWO STOCK BROKERS MENTIONED ABOVE AR E NOT GENUINE. THE LD. CIT (A) AFTER EXAMINING THE DETAILS AND REASONS RECORDED BY ASSES SING OFFICER BEFORE INITIATION OF PROCEEDINGS UNDER SECTION 147/148 FOUND THAT INITIA TION OF PROCEEDINGS UNDER SECTION 147/148 WAS CORRECT. ACCORDINGLY THE LEGAL GROUND RAISED BY ASSESSEE WAS REJECTED. HOWEVER IN RESPECT OF ADDITION ON MERIT THE LD. C IT (A) FOUND THAT ASSESSING OFFICER HAS REJECTED THE CLAIM OF THE ASSESSEE MERELY BY GU IDING HIMSELF OF SUSPICION CREATED BY THE REPORT OF INVESTIGATION WING. IT WAS SEEN BY L D. CIT (A) THAT ASSESSEE HAD FILED DOCUMENTARY EVIDENCES IN RESPECT OF PURCHASE OF SHA RES AND THE SALE OF SHARES THROUGH TWO SHARE BROKERS. NO MATERIAL WAS BROUGHT ON RECOR D TO HOLD THAT THE PURCHASE OF SHARES AND THE SALE OF SHARES WERE NOT GENUINE. WHILE ALLO WING GROUND OF ASSESSEE ON MERIT THE LD. CIT (A) HAS CONSIDERED THE DECISION OF AGRA BEN CH OF THE TRIBUNAL IN THE CASE OF ASHOK KUMAR LAVANIA WHEREIN IT HAS BEEN OBSERVED BY THE BENCH THAT WE WOULD LIKE TO OBSERVE THAT WHEN ORAL STATEMENTS ARE PITTED AGAINS T VALID DOCUMENTARY EVIDENCES IT IS WELL ESTABLISHED LEGAL POSITION THAT THE DOCUMENTAR Y EVIDENCE HAS TO PREVAIL . BY 4 OBSERVING THE ABOVE VIEW THE TRIBUNAL HAS DELETED THE ADDITION MADE BY THE LOWER AUTHORITIES. REGARDING NON AVAILABILITY OF THE BRO KERS AT THE GIVEN ADDRESS BY THE INSPECTOR IT WAS CONTENDED THAT THE INSPECTOR DID NOT REPORT THAT THE BROKERS DID NOT EXIST HE ONLY FOUND THAT THE PREMISES WERE LOCKED. ACCOR DINGLY IT WAS STATED THAT BY MERELY FINDING THE PREMISES LOCKED IT CANNOT BE SAID THAT THE TWO BROKERS THROUGH WHOM THE SALES WERE EFFECTED WERE NOT GENUINE. THE LD. CIT ( A) HAS TAKEN INTO CONSIDERATION THIS ASPECT ALSO AND BY RELYING ON THE DECISION IN THE C ASE OF ITO VS. SUPER CHEMICAL DISTRIBUTORS 1 SOT 102 (DEL.) ALLOWED THE CLAIM OF THE ASSESSEE. THESE FINDINGS OF LD. CIT (A) REMAINED UNCONTROVERTED. IT IS FURTHER SEE N THAT IN SIMILAR CASES THE DEPARTMENT HAS MADE ADDITION BY TREATING THE SALE OF SHARES IN -GENUINE. THE MATTER REACHED TO THE TRIBUNAL AND THE TRIBUNAL AFTER TAKING INTO CONSIDE RATION THE DECISIONS IN THE CASE OF ASHOK AGARWAL IN ITA NO. 129/AG/2004 AND IN THE CAS E OF ASHOK KUMAR LAVANIA IN ITA NO. 112/AG/2004 COPIES OF WHICH ARE PLACED AT PAGES 330-347 AND AT PAGES 300-313 RESPECTIVELY DECIDED THE MATTER. IN SOME OTHER DE CISIONS ALSO THE TRIBUNAL HAS TAKEN THE SAME VIEW THAT THE SALE OF SHARES EFFECTED THROUGH THESE BROKERS WERE GENUINE. SINCE FACTS ARE SIMILAR IN THE PRESENT CASE ALSO THEREFORE WE SEE NO REASON TO INTERFERE IN THE FINDING OF LD. CIT (A) WHO AFTER TAKING INTO CONSIDERATION THE DECISIONS OF THE TRIBUNAL AND OTHER MATERIALS ON RECORD HAS REACHED TO THE CONCLUSION THAT THE SALE OF SHARES WERE GENUINE. AS STATED ABOVE ON IDENTICAL FACTS THE TRIBUNAL HA S DECIDED THE ISSUE IN FAVOUR OF RESPECTIVE ASSESSEE. FOLLOWING THE DECISION OF AGR A BENCH OF THE TRIBUNAL AND THE FINDING GIVEN BY LD. CIT (A) WHICH REMAINED UNCONTR OVERTED WE CONFIRM THE ORDER OF THE LD. CIT (A) IN THIS CASE. 5 6. IN THE RESULT THE APPEAL OF THE DEPARTMENT AS W ELL AS CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21. 04.2010 SD/- SD/- ( P.K. BANSAL ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AGRA DATED : 23/04/2010. D/- COPY FORWARDED TO :- THE APPELLANT THE RESPONDENT THE CIT THE CIT (A) CONCERNED. THE D/R ITAT AGRA. GUARD FILE (ITA 687/AG/2008) BY ORDER AR ITAT AGRA.