ANJULA GOEL ,PARWANOO vs. DCIT, CC-II, CHANDIGARH

आदेश/Order

Per Annapurna Gupta, Accountant Member:

The above appeals relate to the same assessee and have been preferred by her against separate orders of the Commissioner of Income Tax (Appeal)-3, Gurgaon (hereinafter referred to as CIT(A))both dated 07.06.2019

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 2 of 18

relating to assessment years 2015-16 and 2016-17

respectively, passed u/s 153A(1)(b) r.w.s. 143(3) of the

Income Tax Act, 1961 (hereinafter referred to as ‘Act’.

the appeals were identical, therefore, they were taken up

together for hearing and are being disposed off by this

common and consolidated order.

We shall be taking up first the appeal of the

assessee in ITA No.1174/Chd/2019 for assessment year

2015-16.

seizure operation u/s 132(1) of the Act was carried out on

10-03-2016 on the business and residential premises of M/s

Om Sons Group of cases, which included the assessee. In

response to notice issued u/s 153A of the Act, the assessee

filed return declaring income of Rs. 6,43,630/-after claiming

deduction u/s 80C of the Act of Rs.1,60,000/-.

Subsequently assessment was framed making the following

additions/disallowances:

1) alleged bogus long term capital gains u/s 68 of the Act Rs.17,19 989/- 2) Commission paid for the above accommodation entry Rs.1,34,027/-

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 3 of 18

3) Denial of deduction of interest paid on housing loan u/s 24 of the Act Rs.2,00,000/- 4) denial of deduction claimed u/s 80C of the Act Rs.1,60,000/- 4. The assessee went in appeal before the Ld.CIT(A) who

upheld all the additions made and dismissed the appeal of

the assessee.

appeal before us raising the following grounds:

“1. That order passed u/s 250(6) of the Income Tax Act, 1961 by the learned Commissioner of Income Tax (Appeals)-3, Gurgaon is against law and facts on the file in as much as he was not justified to uphold the addition of Rs.17,19,989/- on account of long term capital gain and Rs.1,34,027/- on account of alleged expenditure in connection with long term capital gain. 2. That the Ld.CIT(A) was not justified to uphold the addition particularly in view of the fact that no incriminating material was found during the course of search. 3. That the Ld.CIT (A) was further not justified to consider the revised return field by the appellant after the search which was in fact an invalid return. 4. That no statement of the assessee was recorded u/s 132(4) Income Tax Act, 1961 and the Ld.CIT (A) has relied on irrelevant material for confirming the addition. 5. That the Ld.CIT (A) was not justified in not taking into account the offer of additional income by the group of concerns before the Hon'ble Income Tax Statement Commission during proceeding u/s 245D(4) in their cases. 6. That on the facts & circumstances of the case, the Ld. CIT{A) was not justified in confirming the

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 4 of 18

disallowance of Rs. 2,00,000/- claimed u/s 24 of the Income Tax Act, 1961. 7. That on the facts & circumstances of the case, the Ld. CIT(A) has erred in confirming the disallowance of Rs.1,60,000/- on account of deduction u/s. 80C for Rs. 1,50,000/-and Rs.10,000/- u/s.80TTA of the Income Tax Act ,1961. 8. That the appellant craves leave to add, amend or delete any of the grounds of appeal before the same is heard & disposed off.”

pressed before us and the same are therefore treated as

dismissed.

pointed out, relate to the addition made u/s 68 of the Act on

account of Long Term Capital Gains treated as bogus,

amounting to Rs.17,19,989/- and the alleged expenditure

incurred in connection with the same amounting to

Rs.1,34,027/.

assessment proceedings the AO noted that information had

been received by the Investigation Wing, Chandigarh, from

the Directorate of Income Tax(Investigation)-Kolkata about

large scale tax evasion in the form of Bogus Long Term

Capital Gain claimed by various beneficiaries of the Om

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 5 of 18

Sons Group through the use of penny stocks being

sold/purchased to facilitate these transactions, which

included the assessee also .That the amount had been

received on sale of shares in the penny stock i.e M/s

Cressanda Solutions Limited. The AO noted that the

Investigation Wing Kolkata had carried out Survey operation

u/s 133A of the Act in case of M/s Manu Stock Broking Pvt.

Ltd. on 19.04.2015, wherein statement of Shri Ritesh Jain

was recorded in which he stated that Shri Ajit Tulsian and

Shri Deepak Patwari were the promoters of M/s Cresanda

Solutions Ltd and they were involved in providing entries on

the basis of commission. During the course of search, the

facts with regard to bogus LTCG were confronted to the

assessee. All the persons of the group authorized Shri Sunil

Goel for giving reply with respect to the Long Term Capital

Gains shown from the script, M/s Cresenda Solutions.

During the course of search operation, statement of Shri

Sushil Goel S/o Shri Om Prakash Goel was recorded u/s

132(4) of the Act, wherein he admitted that he and his

family members had received bogus capital gains from M/s

Smart Champ IT & Infra P. Ltd. which was now merged with

M/s Cressanda Solutions Ltd. In the statement, admission

was made of unaccounted income to the tune of Rs. 4.20

crores on account of Long Term Capital Gains in the names

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 6 of 18

of Sh.Goel and his family members including the assessee,

Smt. Anjula Goel for respective years. The above surrender

was confirmed by other family heads of the group namely

Shri Rakesh Goel and Shri Umesh Goel during the course of

their statement recorded u/s 132(4) of the Act on

12.03.2016 and 07.04.2016 during the operation of

prohibitory order at the office of M/s Om Sons group at

Parwanoo. Thereafter, the assessee offered the Long Term

Capital Gain of Rs. 21,93,371/- from trading in this scrip as

her 'Income from other sources' in the revised return of

income filed on 28.03.2016 and paid taxes thereon.

However, the assessee did not disclose this income of Rs.

21,93,371/- in the return filed on 14.08.2017 in response to

notice u/s 153A of the Act. Accordingly the AO made

addition of the same to the income of the assessee.

before the CIT(A) who dismissed all the contentions of the

assessee and upheld the order of the AO.

that the said amount had been disclosed in the hands of

M/s Rohit Traders, a partnership firm of the group and in

which the assessee was a partner , before the Settlement

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 7 of 18

Commission and taxes duly paid thereon. Our attention was

drawn to Paper Book page No.23-34 being the copy of

statement of facts filed before the Hon'ble Income Tax

Settlement Commission, New Delhi ,in the case of M/s Rohit

Traders for assessment years 2010-11 to 2016-17 and the

acceptance of the same by the Settlement commission vide

its order u/s 245A(4) of the Act, relevant portion of which

was placed before us at P.B 48-50. Our attention was

specifically drawn to paper book page no 27,pointing out

therefrom the specific surrender made on account of Long

Term Capital Gains on shares, returned by the assessee M/s

Anjula Goel, claiming the same as exempt u/s 10(38) of the

Act. It was pointed out that it had been admitted before the

Hon’ble Settlement Commission that the same represented

only accommodation entry obtained by the assessee partner,

but the funds had been provided by the firm out of its

undisclosed income which was thus being surrendered. The

contents of the same are reproduced hereunder:

“1) AMOUNTS ADVANCED TO PARTNER During the course of A/Ys 2014-15, Ms.Anjila Goel, a Partner of the Appellant Firm, while filing her income tax return, declared exempt income u/s 10(38), on account of “Long Term Capital Gains” on shares in the following manner:-

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 8 of 18

Assessment Amount (Rs) Year 2014-15 31,80,857/- 2015-16 17,89,989/- Total 49,70,846/-

Fact of the matter is that the above-mentioned income merely represents accommodation entries obtained by the said partner. However, all the funds required for obtaining these entries was provided by the applicant firm to its Partner and also represents undisclosed income earned by it. As such, the applicant firm is offering the above-mentioned amount of Rs.49,70,846/- as additional income vide the present St, of Facts. Also, an amount @ 2% of Rs.49,70,846/- i.e.. Rs.99,417/- towards facilitation charges is also being surrendered as additional income vide the present Statement of Facts.” 11. The Ld.Counsel for the assessee contended that

application for settlement in the case of M/s Rohit Traders

had been accepted by the Settlement Commission vide its

order passed u/s 245A(4) of the Act, therefore, clearly the

impugned Long Term Capital Gains allegedly relating to the

assessee had already stood disclosed and taxed in the hands

of M/s Rohit Traders and, therefore, the same could not be

taxed again in the hands of the assessee.

the Ld.CIT(A) stating that the Hon’ble Settlement

commission had not accepted the plea in the case of M/s

Rohit Traders that the source having been taxed in its

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 9 of 18

hands, the partners be not taxed on the same again. Out

attention was drawn to the findings of the Ld.CIT(A) as

under:

Further, the Hon'ble ITSC in their order in this group cases has made following observations at page 318 of the order.- "it is noted that in the cases of M/s Om Sons Steels Pvt Ltd, M/s Om Sons Enterprises Pvt Ltd Radhika Traders and Rohit Traders the applicants have claimed that the additional income offered to tax in these cases has been utilized for certain investment/expenditure by other entries. We refrain from making any comment in respire of such claim of utilization in the hands of entities who have not filed application u/s 245D(1) of the Act and not covered in this order.". Thus, the contention of the appellant that no amount can be added to income when source has already been taxed with regard to undisclosed income M/s Radhika Traders cannot be accepted in view of the Hon'ble ITSC's order discussed above. Further, the cognizance of revised return filed declaring LTG as its income and payment of taxes cannot be ignored. There is no provision of the Act which prohibits the AO from doing so. The second proviso to section 153A(l]of the Act only prohibits the AO to pass any assessment after search with respect to pending assessment and the AO is empowered to issue notice u/s 153A to assess or reassess the total income of six assessment year in which such search was conducted or requisition was made. Further, reliance is placed on the case of CIT vs Sun Engg Works Ltd 198 ITR 297(SC), wherein the Hon'ble Apex Court has held that the proceedings u/s 147 are for the benefit of the revenue and not for benefit of the assessee. Applying the same principle, proceedings u/s 153A cannot be construed to be for the benefit of assessee, so as to file a return on reduced income, by excluding income which has already been shown in the return filed suo moto and taxes paid on the said income, as in the case of the appellant.

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 10 of 18

The surrender offered on behalf of the appellant has in fact been incorporated in the return filed by the appellant after recording of statement. With regard to addition on account of bogus entries with regard to LTCG on penny stocks, the AO has discussed the issue in detail in the assessment order and hence not reiterated. In view of the above discussion, addition of Rs. 21,93,371/- on account of LTCG in the case of appellant is confirmed. As similar, issue is involved in the case of appellant for AY 2015-16 and Smt. Anjula Goel for AY 2015-16, the addition made in these cases is also confirmed. 13. We have heard both the parties. We have also perused

the documents referred to before us. The contention of the

Ld.Counsel for the assessee is that the impugned capital

gains had already been surrendered in the hands of M/s

Rohit Traders, a partnership firm of the assessee, before the

Settlement Commission which stood accepted. That therefore

there was no question of taxing it again in the hands of the

assessee.

filed before the Settlement Commission in the case of M/s

Rohit Traders and find merit in the contention of the

Ld.Counsel for the assessee. Undoubtedly the impugned long

term capital gain of the assessee of Rs.17,89,989/-

alongwith the facilitation charges thereon, stand

categorically surrendered as undisclosed income of M/s

Rohit Traders ,before the Settlement Commission. The

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Revenue has not controverted the said fact. The impugned

income having been categorically taxed as undisclosed

income of the assessees firm, we fail to understand why it

should be taxed in the hands of the assessee also, which

would only result in taxing the same income twice.

on which the Revenue has relied for dismissing assessees

claim, that they refrain from making any comment in respect

of claim of utilization of additional income of M/s Rohit

Traders in the hands of partners, in our view, only serves

the limited purpose of the Commission refraining from

commenting on assessees which were not there before them.

This observation, we find, does not negate the admitted and

undisputed fact of surrender of the impugned capital gains

of the assessee in the hands of M/s Rohit Traders.

made on account of Long Term Capital Gains and

expenditure incurred on account of the same in the hands of

the assessee amounting to Rs.17,19,989/- and

Rs.1,34,027/- respectively. Ground of appeal Nos.1 and 5

raised by the assessee, therefore, stand allowed.

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 12 of 18

relate to claim of deduction on account of interest paid on

housing loan u/s 24 of the Act of Rs.2,00,000/-, and

repayment of the principal amount of housing loan of

Rs.1,50,000/- & deduction on account of interest earned on

saving bank account of Rs.10,000/- u/s 80C & 80TTA

respectively. The same, we find, were denied to the assessee

for the reason that the necessary documentary evidences

were not filed.

deduction claimed of interest paid on housing loan u/s 24

of the Act and repayment of housing loan u/s 80C of the

Act, both the authorities below had failed to appreciate the

assessee’s contention that the house was jointly owned by

the assessee with her husband and the loan also had been

jointly taken, but the interest certificate had been issued by

the bank in the name of the first owner, i.e the husband of

the assessee . He contended that it had also been pointed

out that the loan installments and interest were also being

paid by the assessee. That all these facts had been

consistently ignored by the authorities below and deduction

denied merely because as per interest certificate loan was

sanctioned to the husband of the assessee. He further

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 13 of 18

contended that even a certificate from the concerned bank,

i.e SBI had been filed, clarifying that the lease was in the

joint name of the assessee and her husband.

that all the necessary evidences had been filed both before

the AO and even the appellate authorities. He drew our

attention to the following documents filed in the Paper Book

as under:

had, therefore, been wrongly denied to the assessee.

Ld.CIT(A).

denied deduction u/s 24 and section 80C of the Act, of the

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 14 of 18

interest paid on housing loan & repayment of housing loan,

for the reason that the interest certificate mentions the loan

sanctioned to the husband of the assessee.

against which the said deductions were claimed was

H.NO.1063, Sector-4 Panchkula. This is evident from the

computation of income for the impugned year filed before us

and the said fact finds mention in the assessment order

also. A perusal of the copy of the sale deed of the said

property, placed before us at P.B 42-47, shows that it was

purchased in the joint name of the assessee and her

husband. The ledger accounts of the housing loan and the

assessees capital account in the firm, M/s Rohit Traders,at

P.B 39-41 show that loan was being repaid by her, including

interest. All these documents were there before the lower

authorities and no infirmity has been pointed out in them.

Even before us the Ld.DR was unable to point out any

discrepancy in the said documents. What emerges therefore

as fact is that the assessee was co-owner of property on

which housing loan taken was being repaid by her. This fact

is corroborated by the bank certificate placed before us at

P.B 38, certifying home loan to be in the name of the

assessee alongwith her husband.

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 15 of 18

that the assessee had failed to establish its claim of

deduction on account of repayment of housing loan and

interest thereon, merits no consideration. The voluminous

evidences filed by the assessee, as stated above, clearly

evidence her claim. And all the above documents were there

before the lower authorities, who we find have conveniently

ignored the same, placing entire thrust on the interest

certificate issued by the bank for rejecting the assessees

claim.

alongwith the evidences filed, we hold that the assessees

had duly evidenced its claim for deduction u/s 24 of interest

on housing loan of Rs.2,00,000/- and u/s 80Cof repayment

of housing loan of Rs.1,50,000/- . The AO is accordingly

directed to allow the aforesaid claims to the assessee.

relating to interest earned on saving, the same was also

denied for lack of evidence. But the Ld.Counsel for the

assessee pointed out that while the interest earned on

savings bank returned by the assessee stands accepted as

such,( reflected in the computation of income at P.B 35-37)

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 16 of 18

the deduction claimed on account of the same has been

denied.

the assessee. Undoubtedly the assessee has claimed

deduction of savings bank interest which has been shown as

income of the assessee. This income returned is not

disputed by the Revenue, therefore, we fail to understand

the logic for denial of deduction of the same income.

deduction u/s 80TTA of the Act of interest earned on

savings bank account.

claim of the assessee u/s 24 of Rs. 2,00,000/-, u/s 80C of

Rs. 1,50,000/- and u/s 80TTA of the Act of Rs. 10,000/-.

Ground No.6 and 7 stand allowed accordingly.

therefore, needs to adjudication.

The appeal of the assessee therefore stands partly

allowed.

ITA Nos.1174 & 1175/Chd/2019 A.Ys. 2015-16 & 2016-17 Page 17 of 18

We now take up the appeal of the assessee for

assessment year 2016-17 in ITA No. 1175/Chd/2019.

The grounds raised by the assessee read as under:-

“1. That of the Ld.CIT(A) is against the facts of the case & is bad in law as no incriminating material related to the additions made was found during the course of search. 2. That on the facts & circumstances of the case, the Ld. CIT{A) was not justified in confirming the disallowance of Rs. 2,00,000/- claimed u/s 24 of the Income Tax Act, 1961. 3. That on the facts & circumstances of the case, the Ld. CIT(A) has erred in confirming the disallowance of Rs.152756/- on account of deduction u/s. 80C for Rs.1,50,000/- and Rs.2756/- u/s 80TTA of the Income Tax Act ,1961. 4. That the appellant craves leave to add, amend or delete any of the grounds of appeal before the same is heard & disposed off.” 31. Ground No.1 raised by the assessee in this appeal was

not pressed and is therefore dismissed as not pressed.

general in nature and hence, needs no adjudication.

in this appeal, it was common ground between the parties

that the issues in this ground is similar to the issues in

ground Nos.6 & 7 raised by the assessee in its appeal in

ITA No. 1174/Chd/2019 dealt with by us above. The

findings given therein at paras 17 to 29 of our order

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above shall apply to these grounds also mutatis mutandis. Ground Nos. 2 & 3 raised by the assessee, therefore, stand allowed.

The appeal of the assessee is therefore partly allowed.

Order pronounced on 12.03.2021.

Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) �या�यक सद�य/ Judicial Member लेखा सद�य/ Accountant Member Dated: 12th March, 2021 *रती* आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar