Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCHES “G” : DELHI
Before: SHRI ANIL CHATURVEDI & MS. ASTHA CHANDRA
ORDER PER ANIL CHATURVEDI, A.M.
The above appeals by Assessee are directed against the separate Orders of the Ld. CIT(A)-1, Noida, dated 28.09.2018 in Appeal No.610/e-file/2017-18/Noida relating to the A.Ys. 2010-11 and 2011-2012.
1.1. Since common issues are involved in both the appeals, the appeals were heard together and are being disposed of by this common consolidated order for the sake of brevity. The Learned Counsel for the Assessee submitted that the decision taken in ITA.No.1898/Del./2019 for the A.Y. 2011-12 may be applicable to the other ITA.No.1897/Del./2019 for the A.Y. 2010-11 also, to which, the Ld. D.R. has objection.
We, therefore, cull-out the relevant facts from ITA.No.1898/Del./2019 for the A.Y. 2011-12 as under :
2.1. Briefly stated facts of the case are that the Assessee is a HUF and had purchased one lakh shares of 3 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar. M/s. Chirawa Cements Ltd., on 17.09.2008 @ 2.50 per share through offline from M/s. Piyush Credits Ltd., During the assessment year under consideration the assessee has shown Long Term Capital Gains [“LTCG”] on sale of 64544 shares to various persons from 03.07.2010 to 26.08.2010 for a sale consideration of Rs.92,08,044/- @ Rs.142.66 per share and claimed long term capital gain under section 10(38) of the I.T. Act, 1961. The case of the assessee was selected for scrutiny and notices under section 142(1) along with questionnaires are issued, which remained uncomplied with. Therefore, the A.O. issued notice under section 271(1)(b). In response to the said notice, the assessee vide its reply dated 04.08.2017 filed computation of income statement at Rs.5,100/-. Thereafter, the A.O. issued various notices under sections 142(1)/ 271(1)(b) and 133(6) of the Act to the assessee as well as the persons who had purchased shares from the assessee. In compliance to the said notices, the assessee filed return under section 148 and submissions were filed on 26.12.2017.
4 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar. 2.2. During the course of assessment proceedings, the A.O. thread-bear examined the issue of purchase and sale of the shares. The A.O. noted that the assessee has introduced /credited capital of Rs.92,08,044/- during the year in the books, the source of which it explained as proceeds from these share sale transactions and those funds were utilized in construction of Hotel in Sector-62, Noida. Since the explanation offered by the assessee in respect of the source of this capital introduced being share sale transaction has been held to be not satisfactory by the A.O, he treated the sale transaction as ‘sham’ transaction and made addition under section 69 of the I.T. Act, 1961 and determined the total income of the assessee at Rs.92,13,144/- under section 147/143(3) of the I.T. Act, 1961 vide order dated 28.12.2017.
2.3. Aggrieved by the order of the A.O, the assessee carried the matter in appeal before the Ld. CIT(A), who confirmed the order of the A.O. While confirming the order of the A.O, the Ld. CIT(A) noted that the primary onus was 5 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar. on the assessee to prove that - the claim of transaction of purchase and sale of shares was a bonafide one, having taken place through an enlisted share broker and a recognized stock exchange and the money trail was clean and verifiable. Since, it was the assessee who had made the claim before the A.O, it has purchased the shares of a company and thereafter sold the same earning LTCG in the process, it was incumbent upon the assessee to corroborate its claim before the A.O. by discharging its primary onus and only then it could have claimed that the transaction as claimed by the assessee was genuine and bonafide. The Ld. CIT(A) further noted that if the share transactions are through Stock Exchange, then, it is easily verifiable. Since the assessee failed to prove the genuineness of the transaction in the matter, the Ld. CIT(A) confirmed the order of the A.O.
Aggrieved by the Order of the Ld. CIT(A), the assessee is in second appeal before the Tribunal, by raising the following grounds :
6 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar. S. Grounds of Appeal Tax Effect No.
1. Under the facts and circumstances of the case, the Ld. first appellate authority has grossly erred at law in Rs.50,96,347 dismissing the appeal of the assessee ex-parte, without giving appellant any proper opportunity of being heard, which is grossly injudicious, against the principles of nature justice and bad at law.
2. Under the facts and circumstances of the case, the addition of Rs.92,08,044/-for unexplained investments u/s 69 r.w.s. 115BBE of the Act made by the Id. A.O. and confirmed by Id. CIT(A) is grossly unwarranted, Rs.50,96,347 injudicious, against the facts, devoid of any merits, invalid and bad at law.
3. Under the facts and circumstances of the case, the addition u/s 69 r.w.s. 115BBE made merely based on the enquiries made/ statement recorded by Id. DDIT(lnv.), Kolkata, did not have any evidentiary value Rs.50,96,347 as the same were recorded in the absence of appellant, which were not confronted to the appellant, which is grossly injudicious, invalid and bad at law.
4. Under the facts and circumstances of the case, the addition u/s 69 of the Act made without affording any Rs. 50,96,347 opportunity to cross-examine the source of information based on which the case has been reopened for assessment u/s 147, is grossly injudicious, unwarranted, invalid and bad at law.
5. Under the facts and circumstances of the case, the addition u/s 69 of the Act made by the Id. A.O. and Rs.50,96,347 confirmed by Id. CIT(A) is grossly injudicious and unwarranted as the transactions for sale of shares is supported by corroborative documentary evidences submitted by the appellant, which have neither been controverted nor been disproved by the Id. A.O.
6. Under the facts and circumstances of the case, the Id. A.O. has grossly erred in making the addition in the case of appellant based on highly inappropriate allegations, failing to bring any corroborative evidence on record to Rs.50,96,347 prove that the appellant had routed his own unaccounted money in the garb of long term capital gains, which is 7 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar. grossly invalid, injudicious and bad at law.
7. Without prejudice to the above grounds and under the facts and circumstances of the case, the assessment order passed by the Id. ,A-0. is self-contradictory, as the entire explanations offered/ discussions made in the Rs.50,96,347 assessment order are with regards to sec 68 whereas the additions have been made in the last para u/s 69, which is grossly invalid.
8. Without prejudice to the above grounds and under the facts and circumstances of the case, reopening of Rs.50,96,347 assessment and the assessment framed in the case of appellant u/s 147 of the Act is grossly invalid, injudicious, against the facts of the case and bad at law.
Without prejudice to the aforesaid grounds of appeal
, the Tax effect based on the demand u/s 156 of the Act computed by the Id. A.O. for correct tax and interest is erroneous and is unsupported by any calculation to Income Tax Computation Form for the calculation of be submitted at alleged demand amount. the time of hearing.
10. All the aforesaid grounds of appeal are independent grounds and are without prejudice to each other. The appellant prays for leave to add, modify, alter, withdraw all or any of the grounds of appeal.
During the course of hearing, the Learned Counsel for the Assessee at the very outset submitted that due opportunity of hearing to the assessee was not provided by the Ld. CIT(A). She submitted that the authorities below have not considered the documentary evidences filed before them and the assessee has discharged its primary onus by furnishing all the relevant documentary evidences. Further,
8 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar. the Learned Counsel for the Assessee drew the attention of the Bench to the order of the Ld. CIT(A) dated 28.09.2018 wherein in the 1st page of the order itself at para-2, the Ld. CIT(A) stated that “Vide notice dated 04.09.2018 the date of hearing was fixed for 19.09.2018”. Since the assessee’s counsel was pre-occupied with audit finalization which due date was 30.09.2017, a letter was addressed the O/o. Ld. CIT(A) to that effect. However, the Ld. CIT(A) without considering the request of the assessee passed the impugned order dated on 28.09.2018 itself. She, therefore, submitted that principles of natural justice have been violated by the Ld. CIT(A) and, therefore, prayed that the matter be sent to the file of Ld. CIT(A) for fresh adjudication and she undertakes to cooperate with the authorities by filing promptly all the details called for by the authorities.
The Ld. D.R. did not seriously opposed the request of the Learned Counsel for the Assessee for remitting the matter in issue back to the file of Ld. CIT(A) for fresh adjudication.
9 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar.
We have heard the rival submissions and perused the material available on record. Before us, it is the contention of the assessee that the due to the audit finalization work due date being 30.09.2017, the Authorized Representative/Chartered Accountant could not appear before CIT(A) and the same fact was also brought to the notice of Ld. CIT(A) through letter from M/s. SRJB & Associates LLP and noted by the Ld. CIT(A) in it’s order. From the perusal of the order of the Ld. CIT(A), it is crystal clear that the notice was issued on 04.09.2018 fixing the appeal for hearing for 19.09.2018 and the Ld. CIT(A) passed the impugned order on 28.09.2018. Therefore, it is clear that the Ld. CIT(A) has not provided ample opportunity of hearing to the assessee. It is well settled law that principles of natural justice shall be followed by the Authorities while passing the orders. The authorities should provide sufficient opportunity of hearing to the parties and no parties should be condemned unheard. Since, in the instant case, the Ld. CIT(A) has not provided sufficient opportunity of bearing heard to the assessee, we set aside the order of the Ld.
10 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar. CIT(A) and remit the matter in issue back to the file of Ld. CIT(A) with a direction to pass order afresh, after providing sufficient opportunity of being heard to the assessee. Needless to say, assessee is also directed to promptly furnish the details called for by the Ld. CIT(A). In view of our decision to restore the issue to the file of Ld. CIT(A), we are not adjudicating on merits the grounds raised by the assessee. Thus the grounds of assessee are allowed for statistical purposes.
In the result, appeal of the assessee ITA.No.1898/Del./2019 for the A.Y. 2011-12 is allowed for statistical purposes.
ITA.No.1897/Del./2019 – A.Y. 2010-11 :
8. Since the facts are identical in this appeal, respectfully following the reasons for the decision in ITA.No.1898/Del./2019 for the A.Y. 2011-12 decided by us hereinabove, we restore the matter to the file of Ld. CIT(A) with a direction to decide the matter in issue afresh, after providing due opportunity of being heard to the assessee.
11 ITA.No.1898/Del./2019 Shri Saurabh Goyal HUF, GB Nagar. The assessee is also directed to promptly furnish the details called for by the Ld. CIT(A). In view of our decision to restore the issue to the file of Ld. CIT(A), we are not adjudicating on merits the grounds raised by the assessee. Thus the grounds of assessee are allowed for statistical purposes.
In the result, appeal of the assessee 7. ITA.No.1897/Del./2019 for the A.Y. 2010-11 is allowed for statistical purposes.
To sum-up, both the appeals of the Assessee are allowed for statistical purposes. [ Order pronounced in the open court at the time of hearing i.e., on 18.07.2022.