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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI AMARJIT SINGH
Per Amarjit Singh (AM): The present appeal filed by the assesse is directed against the order passed by the NFAC, Delhi dated 14.12.2022 for A.Y. 2009-10. The assesse has raised the following grounds before us:
“1. The Ld. CIT (Appeals) has erred in confirming the addition made by AO of Rs.20,93,590/- u/s 68 of the Act without appreciating that the Appellant has neither earned any alleged Long Term Capital Gains (LTCG) from sale of shares nor received any amount as alleged accommodation entry during the year under consideration and thus, the provisions of sec.68 of the Act are not applicable in the facts of the case and hence, the addition made of Rs.20,93,590/- u/s 68 of the Act is without any justification and liable to be deleted.
Without prejudice to the above and without admitting and accepting, the Ld. CIT (Appeals) failed to appreciate that the AO has not brought any evidence on record and/or any details to show any such alleged LTCG accommodation entry taken by Appellant during the year and further,
P a g e | 2 Sushila Sunil Bhutoria Vs. ITO-31(3)(4) not furnished copy of any statement recorded of any personnel including opportunity to cross- examine and thus, the addition made of Rs.20,93,590/- u/s.68 of the Act is unjustified and liable to be deleted.
The Appellant craves leave to add, amend, alter or delete all or any of the aforesaid grounds of appeal.”
Fact in brief is that return of income declaring total income of Rs.1,16,490/- was filed on 24.04.2010. The return of income was processed u/s 143(1) of the Act. Subsequently, the case was reopened by issuing of notice u/s 148 of the Act. On 30.03.2016 on the basis of information received from DIT(Inv) that some companies listed on Calcutta Stock Exchange have availed accommodation entries of bogus long term capital gain. During the course of assessment the A.O stated that as per the information received from the investigation wing Calcutta the assesse was one of the beneficiary who had obtained accommodation entries of bogus long term capital gain from sale of the following script: Sr. No. Name & address of beneficiary PAN Scrip Name Trade Value/Sale Amount
Smt. Sushila Sunil Bhutoria ACEPB1032D M/s BSR Finance 2093590 224, Yug Dharma, Link Road, & Construction Opp, Inorbit, Malad West, Ltd. Mumbai
The assessee has filed copy of statement of income, copy of intimation u/s143(1) and copy of Axis Bank statement showing that assesse had drawn income from salary, house property and other sources. The A.O stated that there was no response to notice u/s 133(6) dated 21.11.2016 issued to M/s BSR Financial and Construction Ltd. The AO further stated that onus is lied on the assessee to disprove that she has not obtained long term capital gain with supporting documents. The A.O has also mentioned that assessment was getting time barred by limitation on 31.12.2016, therefore, bogus long term capital gain
P a g e | 3 Sushila Sunil Bhutoria Vs. ITO-31(3)(4) amounting to Rs.20,93,590/- was treated as income from undisclosed sources.
The assesse filed the appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee.
During the course of appellate proceedings before us the ld. Counsel filed paper book comprising copies of document and submission filed before the lower authorities. The ld. Counsel vehemently contended that during the year under consideration there was no such transaction pertaining to long term capital gain amounting to Rs.20,93,590/- referred by the A.O in the assessment order was carried out by the assessee. The ld. Counsel also submitted that during the course of assessment proceedings the assessee has also filed the copy of her bank statement of Axis Bank, copy of computation of income and nowhere assesse has claimed any such long term capital gain. The ld. Counsel further submitted that A.O has not brought any material on record to support his finding that assesse has introduced unaccounted money. On the other hand, the ld. D.R supported the order of lower authorities.
Heard both the sides and perused the material on record. The assessment in the case of the assessee was reopened on the basis of information received from Pr. DIT(Inv)-2, Mumbai that some companies listed in Kolkata Stock Exchange have availed accommodation entries of bogus long term capital gain and the assesse was one of the beneficiary of such capital gain entries. Accordingly, the A.O has treated the amount of Rs.20,93,590/- as undisclosed income of the assesse u/s 68 of the Act. During the course of assessment vide submission dated 27.06.2006 the assesse has submitted that she was not indulged in any bogus accommodation entries. Further vide submission dated
P a g e | 4 Sushila Sunil Bhutoria Vs. ITO-31(3)(4) 18.10.2016, it was submitted before the A.O that during the period no transaction pertaing to Rs.20,93,590/- in the scrip of M/s BSR Finance or Construction Limited was carried out by the assessee. In support of her contention the assessee has submitted copies of bank statement, copies of return of income filed and copies of computation of income etc. Neither the A.O has controverted the submission of the assessee nor proved that assessee has taken long term capital gain entries. This is undisputed fact that neither such transaction of Rs.20,93,590/- was reflected in the bank statement of the assesse nor the same was claimed as long term capital gain income in the return of income filed by the assessee. In the light of the above facts and circumstances it is established that the A.O has not brought on record any clinching evidences to corroborate that assesse has earned the impugned LTCG during the year under consideration. Therefore, I don’t find any justification in the decision of ld. CIT(A). Accordingly the appeal of the assesse is allowed.
In the result, the appeal of the assesse is allowed. Order pronounced in the open court on 12.04.2023 (Amarjit Singh) Accountant Member Place: Mumbai Date 12.04.2023 Rohit: PS
P a g e | 5 Sushila Sunil Bhutoria Vs. ITO-31(3)(4)
आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file.
सत्यावपि प्रवि //// आदेशानुसार/ BY ORDER,
उि/सहायक िंजीकार (Dy./Asstt.