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Before: SHRI R. K. PANDA & MS SUCHITRA KAMBLE
PER SUCHITRA KAMBLE, JM
These two appeals are filed by the assessee against the order dated 27/11/2013 passed by CIT(A), Raipur (CG) for the A.Ys 2005-06 & 2006-07.
2 ITA No.37 & 153/RPR/2014
The grounds of appeal are as under:
I.T.A .No. 37/RPR/2014 (A.Y 2005-06) :
“1In the facts and circumstances of the case, Ld. CIT(A) erred in confirming the addition of Rs. 25,87,213 made by the A.O treating the long term capital gain disclosed by the assessee as income from undisclosed sources. The order of the Ld. CIT(A) confirming the addition is contrary to the evidences filed and is not justifies.”.
I.T.A. No. 153/RPR/2014 (A.Y. 2006-07)
Ld. CIT(A) erred in confirming disallowance of Rs. 6,91,255/- made by the A.O invoking the provisions of Sec. 40(a)(ia). The disallowance made by A.O is illegal and not justified.
In the facts and circumstances of the case, Ld. CIT(A) erred in confirming the addition of Rs. 13,04,371 made by the A.O treating the long term capital gain disclosed by the appellant as income from undisclosed sources. The order of the Ld.CIT(A) confirming the addition is contrary to the evidences filed and is not justified.
We are taking up the brief facts of A.Y. 2005-06 as issues in both the years are identical. The assessee is an individual and derives income from business of civil contract and transportation work. The return of income was filed on 31.03.2007 declaring income of Rs. 22,71,520/-. Subsequently, the assessment was completed u/s 143(3) of the IT Act 1961 on 22.12.2018, determining the total income at Rs. 46,86,680/-.
Being aggrieved by the order of the Assessing Officer, the assessee filed an appeal before the CIT(A), who partly allowed the appeal. Aggrieved by the CIT(A)’s order the assessee is in appeal before us.
The Ld. AR submitted that the issue contested in the present appeal is relating to the long term capital gains added by the Assessing Officer as income from undisclosed sources u/s 68 of the IT Act. The Ld. AR submitted that in the present case, the assessment order containing Annexure-A, wherein
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individual name such as Rakesh Kumar Saraogi and other names of Saraogi Group are appearing. The Ld. AR further submitted that the Assessing Officer relied upon one statement of Shri. P.K Agarwal which was also considered in cases relating to Rakesh Kumar Saraogi and sons as well as Rajesh Kumar Saraogi for the A.Y 2004-05 by this Tribunal and the issue is in favour of the assessee. Ld. AR, further submitted that the A.O has relied upon one statement of Mr. P.K. Agarwal, which were also taken in cases relating to Rakesh Saraogi and Sons as well as Rajesh Kumar Saraogi for the A.Y 2004-05 by the Tribunal and therefore the issue is held in favour of the assessee. Further Bombay High Court in the case of Sanjay Bimalchand Jain L/H Shantidevi Bimalchand Jain was also considered in the said case. The Tribunal vide order dated 16.04.2018 in ITA Nos. 93 to 99 also decided this issue. Thus, the Ld. AR submitted that the issue is covered in favour of assessee.
The Ld. DR submitted that the Assessing Officer rightly made the addition and relied upon the decision of the Tribunal in the case of Shri Sanjay Bimalchand Jain, L/H of Smt. Shantidevi Bimalchand Jain.
We have heard both the parties and perused the material available on record. It is pertinent to note that the issue contested here in is already decided by the Tribunal vide order dated 16.04.2018 in Saraogi Group case the Tribunal held as under:
“16. It is admitted fact that the brokers replied to the notice sent by the A.O and confirmed the impugned transactions. Moreover, Pravin Kumar Agarwal of P.K. Agarwal & Co. (brokers) in his affidavit dated 19.12.2006 exhibited at page 139 to 144 of the paper book has solemnly affirmed the transaction which are exhibited at pages 141 of the paper book. 24. The Ld. DR had relied upon the decision of the Hon’ble Bombay High Court in the case of Bimalchand Jain in Tax appeal No. 18 of 2017.
4 ITA No.37 & 153/RPR/2014
We have considered the judgment relied upon by the Ld. CR we find that the facts are totaling different from eh facts of the case in hand. Firstly, in that case, the purchases were made by the assessee in cash for acquisition of shares of companies and the purchases of shares of the companies was done through the broker and the address of the broker was incidentally the address of the company. The profit earned by the assessee was shown as capital gains which was not accepted by the A.O and the gains were treated as business profit of the assessee by treating the sales of the shares within the ambit of adventure of nature of trade. 26. Thus, it can be seen that in the decision relied upon by the Ld. DR. The dispute was whether profit earned on sale of shares was capital gains or business profit. The Ld. DR also tried to draw support from the decision of the CIT(A), Raiopur in Appal No. 528/07-08 in the case of Ganesh Prasad Khetan for the A.Y 2005-06 in order dated 27.11.2013. It is the say of the Ld. DR that the Ld. CIT(A) in this case had confirmed the addition whereas the Ld. CIT(A) in the case in had has deleted the addition. We do not find any merit in this reference made by the Ld. DR. 27. Considering the facts of the case in the hand in totality in the light of the judicial decisions discussed hereinabove, we do not find any merit in the appeal filed by the Revenue and therefore decline to interfere with the findings of the Ld. CIT(A). All the grounds of the Revenue taken together are dismissed.”
Thus, the Tribunal in Saraogi Group of cases has already taken cognizance of the statement/affidavit of Pravin Kumar Agarwal (P. K. Agarwal) and the issue contested herein is squarely covered in favour of the assessee. In fact, the Ld. DR could not point out any difference of facts nor could distinguish the order of the Tribunal. Since facts of the instant case are identical to the facts of the cases decided by the Tribunal in Saraogi Group cases, therefore, respectfully following the order of the Tribunal, the grounds of the appeals of the assessee are allowed. Hence, both the appeals of the assessee are allowed.
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In result, both the appeals of the assessee are allowed.
Order pronounced in the Open Court on 18th September, 2018. Sd/- Sd/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 18/09/2018 KRK/R.N Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
Private Secretary ITAT, Raipur
6 ITA No.37 & 153/RPR/2014
Date 1. Draft dictated on PS 2. Draft placed before author PS 3. Draft proposed & placed before the JM/AM second member 4. Draft discussed/approved by JM/AM Second Member. 5. Approved Draft comes to the PS/PS Sr.PS/PS 6. Kept for pronouncement on PS 7. File sent to the Bench Clerk PS 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk. 10. Date of dispatch of Order.