SMT. KAMLABEN PANDIT, MUMBAI v. ASST.CIT, CENT, CIRCLE 12, MUMBAI

ITA 822/MUM/2009 | 2003-2004
Pronouncement Date: 26-02-2010 | Result: Allowed

Appeal Details

RSA Number 82219914 RSA 2009
Assessee PAN AAHPP3268N
Bench Mumbai
Appeal Number ITA 822/MUM/2009
Duration Of Justice 1 year(s) 19 day(s)
Appellant SMT. KAMLABEN PANDIT, MUMBAI
Respondent ASST.CIT, CENT, CIRCLE 12, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 26-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 26-02-2010
Assessment Year 2003-2004
Appeal Filed On 06-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI. BEFORE SHRI R.K. GUPTA J.M. AND SHRI J. SUDHAKAR REDDY A.M. I.T.A. NO. 8 22/MUM/2009 ASSESSMENT YEAR : 2003-04. SMT. KAMLABEN PANDIT ASSTT. C OMMISSIONER OF INCOME-TAX BAJANAN BUILDING NO. 8 VS. CENTRAL CI RCLE-12 MUMBAI. 178 JAWAHAR NAGAR GOREGAON (W) MUMBAI 400 062. PAN : AAHPP3268N APPELLANT RESPONDENT APPELLANT BY : SHRI BEHARILAL RESPONDENT BY : SHRI LALCHAND. O R D E R PER J. SUDHAKAR REDDY A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE CIT(APPEALS) CENTRAL-III MUMBAI DATED 19-11-2008 FOR THE ASSESSMENT YEAR 2003-04 ON THE FOLLOWING GROUND : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE AO FOR MAKING ADDITION OF RS.96 420/- U/S 69C OF THE I.T. ACT BEING UNEXPLAINED EXPENDITURE (COMMISSION) INCURRED BY TH E APPELLANT. REASONS ASSIGNED BY HIM FOR DOING THE SAME ARE WRON G AND INSUFFICIENT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE AO FOR MAKING ADDITION OF RS.34 014/- U/S. 69C OF THE I.T. ACT BEING UNEXPLAINED EXPENDITURE (COST OF SHARES) INCURRED B Y THE APPELLANT. REASONS ASSIGNED BY HIM FOR DOING THE AME ARE WRONG AND INSUFFICIENT. 2 3. THAT THE ORDER OF THE LD. CIT(APPEALS) BEING ARBITR ARY AND BAD IN LAW THE SAME SHOULD BE QUASHED AND YOUR APPELLANT BE GIVEN SUCH RELIEF AS PRAYED FOR. 2. THE ASSESSEE DERIVES INCOME FROM HOUSE PROPERTY AND OTHER SOURCES. A SEARCH AND SEIZURE ACTION U/S 132 WAS CO NDUCTED ON 24-01- 2006. DURING THE COURSE OF SEARCH IT HAS COME TO LI GHT THAT THE ASSESSEE HAD OBTAINED ARTIFICIAL CAPITAL GAIN BY MANIPULATIO N OF SHARE TRANSACTIONS. THE ASSESSEE OBTAINED BACK DATED PURCHASE BILLS OF THE SHARES AND RECEIVED SHARES IN PHYSICAL FORMAT. THE ASSESSEE AG REED THAT THESE ALLEGATIONS WERE TRUE AND DECLARED LONG TERM CAPITA L GAINS. THE ISSUE IN DISPUTE BEFORE US IS AN ADDITION MADE AS UNEXPLAINE D EXPENDITURE U/S 69C BEING 5% OF THE SALE PROCEEDS ON THE GROUND THAT CO MMISSION IN SERVICE CHARGES WOULD HAVE BEEN PAID BY THE ASSESSEE AND SE CONDLY RS.34 014/- ADDED U/S 69C AS PURCHASE COST OF SHARES. 3. WE HAVE HEARD MR. BEHARILAL LEARNED COUNSEL FO R THE ASSESSEE AND MR. LALCHAND LEARNED DR. AS FAR AS TH E FIRST ADDITION IS CONCERNED THE ADDITION IS MADE U/S 69C ON THE GROU ND THAT THE RATE OF COMMISSION CHARGED BY THE BROKER/OPERATORS IS APPRO XIMATELY 5%. NO EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH NOR WAS ANY EVIDENCE GATHERED THEREAFTER TO PROVE THAT THE ASSESSEE HAD INCURRED THIS EXPENDITURE OF 5%. IN THE ABSENCE OF EVIDENCE OF HA VING INCURRED EXPENDITURE OUTSIDE THE BOOKS OF ACCOUNT IN OUR CO NSIDERED OPINION NO ADDITION COULD BE MADE U/S 69C. THE ADDITION HAS BE EN MADE ON THE BASIS OF SURMISES AND CONJECTURES. 4. IN THE RESULT GROUND NO. 1 IS ALLOWED. 5. COMING TO GROUND NO. 2 WE FIND THAT THE ASSESS EE HAS OFFERED THE ENTIRE SALE PROCEEDS TO TAX. THE AO ADD ED THE PURCHASE COST 3 U/S 69C. WHEN THE ALLEGATION OF THE REVENUE IS THAT THE PURCHASE IS A BOGUS TRANSACTION AND THAT THE ENTIRE SALE CONSIDER ATION IS NOTHING BUT THE INCOME OF THE ASSESSEE THEN IN OUR CONSIDERED OPIN ION NO ADDITION COULD BE MADE U/S 69C. AS THE ENTIRE SALE PROCEEDS IS BRO UGHT TO TAX NO SEPARATE ADDITION IS JUSTIFIED U/S 69C. 6. IN THE RESULT GROUND NO.2 OF THE ASSESSEE IS A LLOWED. 7. GROUND NO. 3 AND 4 ARE GENERAL IN NATURE AND DO NOT REQUIRE ANY ADJUDICATION. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON THIS 26 TH DAY OF FEBRUARY 2010. SD/- SD/- (R.K. GUPTA) (J. SUDHAKAR REDDY) JUDICIAL MEMBER. ACCOUNTANT MEMBER. MUMBAI DATED : 26 TH FEBRUARY 2010. WAKODE COPY FORWARDED TO : 1. APPELLANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR A-BENCH. (TRUE COPY) BY ORDER ASSTT. REGISTRAR ITAT MUMBAI BENCHES MUMBAI.