Income Tax Appellate Tribunal - Pune
Baldevsingh Wahi, L/H. Of Late Smt. G B ... vs Additional Commissiner Of ... on 30 June, 2017
आयकर अपीलीय अिधकरण,
अिधकरण पुणे यायपीठ "ए
ए" पुणे म
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "A", PUNE
ी डी.
डी. क णाकरा राव , लेखा सद य
एवं ी िवकास अव थी,
अव थी याियक सद य के सम
BEFORE SHRI D.KARUNAKARA RAO, AM
AND SHRI VIKAS AWASTHY, JM
आयकर अपील सं. / ITA No. 1212/PUN/2014
िनधा रण वष / Assessment Year : 2008-09
ITO, Ward-2, .......... अपीलाथ /
Ahmednagar Appellant
बनाम v/s
Shri Baldevsingh Wahi,
Legal Heir of Smt. Gurucharan Wahi, .......... यथ /
Raj Chambers, Near Kothala Road, Respondent
Ahmednagar.
PAN : AAMPW0454E
आयकर अपील सं. / ITA No. 333/PUN/2014
िनधा रण वष / Assessment Year : 2008-09
Shri Baldevsingh Wahi, .......... अपीलाथ /
Legal Heir of Late Smt. Gurucharan Wahi, Appellant
B-34, Raj Chambers, Near Kothala Road,
Ahmednagar.
PAN : AAMPW0454E
बनाम v/s
Addl.CIT, Ahmednagar Range,
Ahmednagar .......... यथ /
Respondent
C.O. No. 21/PUN/2015
िनधा रण वष / Assessment Year : 2008-09
Shri Baldevsingh Wahi, .......... अपीलाथ /
Legal Heir of Late Smt. Gurucharan Wahi, Appellant
B-34, Raj Chambers, Near Kothala Road,
Ahmednagar.
PAN : AAMPW0454E
बनाम v/s
ITO, Ward-2,
Ahmednagar .......... यथ /
Respondent
Assessee by : Shri S.N. Puranik
Revenue by : Shri Achal Sharma
2
ITA Nos.1212 & 333/PUN/2014
C.O. No.21/PUN/2015
सुनवाई क तारीख / घोषणा क तारीख /
Date of Hearing :28.06.2017 Date of Pronouncement: 30.06.2017
आदेश / ORDER
PER D. KARUNAKARA RAO, AM :
There are three appeals under consideration against the orders of CIT(A)-IT/TP, Pune dated 11-12-2013 relating to Assessment Year 2008-09. The cross appeals by the Assessee and the Revenue and the Cross objection filed by the Assessee were heard together and are being decided by this composite order.
ITA No.1212/PUN/2014 (By Revenue) :
2. We shall take up the Revenue's appeal first being ITA No.1212/PUN/2014. Before taking up the grounds raised by the Revenue in the appeal, we find need of culling at certain facts. The brief facts of this case include that the assessee is an individual doing multiple business activities including truck plying, dealing in shares, etc. Appropriate Head of income for taxing of the gains arose from the sale of shares was the subject matter of dispute during the assessment proceedings. AO treated the gains earned on sale of shares as business income against the assessee's claim of short term capital gains. CIT(A) allowed the claim of the assessee and directed the AO to treat the same as short term capital gains as per the discussion given in Para No.5 of his order. It is evident from the said paragraph that the CIT(A) relied heavily on the order of the ITAT in assessee's own case vide ITA Nos.80 and 1331/PN/2011, ITA Nos. 82 & 1332/PN/2011 and ITA Nos.81/PN/2011 order dated 22-03-2013. The Tribunal passed the common order commonly disposing the ground of 3 ITA Nos.1212 & 333/PUN/2014 C.O. No.21/PUN/2015 appeals by Shri in the cases of Baldevsingh Satsingh Wahi (HUF), Gurucharankaur B.Wahi & Baldevsingh Satsingh Wahi, the assessee.
3. Aggrieved with the above finding of the CIT(A) the Revenue filed the present appeal raising 7 grounds of appeal.
4. Before us, both the counsels submitted that all the grounds in question revolves around proper head of income for taxing the gains in the assessee's case.
5. Bringing our attention to the claim of the assessee in A.Y.2005-06 onwards it is submitted that the assessee is consistent in offering similar gains in the past under the head "Short Term Capital Gains". The claim is normally accepted by the Revenue with exception of few assessment years, wherever, AO disturbed the claim of the assessee. Assessee preferred an appeal and eventually, the Tribunal was granting the relief in favour of the assessee.
6. On hearing both the parties and perusing the orders of the Revenue on one side and the paper book filed before us, we find it is relevant to extract the contents of Para No.5 of the order of CIT(A) and the same reads as under :
"5. The Appellant before me, submitted that the ITAT vide order bearing ITA No.80 and 1331/PN/2011 dated 22-03-2013 in the common order in the cases of Baldev Singh Wahi (HUF), Gurucharan Kaur Wahi and Baldev Singh Wahi has reversed the orders of the learned AO and the CIT(A) on the above ground and thus prayed to treat the gain as short term capital gain and not business income."
7. Thus, it is evident from the above that the CIT(A) has complied with the directions of the Tribunal following the principles of judicial discipline and allowed the appeal of the assessee. The Revenue has not made out 4 ITA Nos.1212 & 333/PUN/2014 C.O. No.21/PUN/2015 any case that the said decision of the Tribunal requires any alteration. Therefore, we are of the opinion that we should affirm the order of the CIT(A) and dismiss the appeal of the Revenue. Accordingly, all the grounds raised by the Revenue are dismissed.
8. In the result, the appeal of the Revenue is dismissed. ITA No.333/PUN/2014 (By Assessee) :
9. Now, we proceed to take the Assessee's appeal being ITA No.333/PUN/2014. The grounds raised by the assessee in its appeal read as under :
"1. Honourable CIT(A) has erred in not adjudicating the issue of surplus on sale of shares within the period of One Year as Short Term Capital Gain. Appellant prays for decision that it is Assessable as Short Term Capital Gain and not Business Income.
2. Lower Authorities have erred both on Facts and in law in making addition of Rs.49,05,459/- u/s.68 of the Act. Same may please be deleted.
3. Appellant Prays for Just and equitable relief.
4. Appellant denies Liability of Interest u/s.234B, 234C etc. Same may please be deleted.
5. Appellant prays to add, alter, amend and/or withdraw the Ground/s during the proceedings."
10. Referring to Ground No.1, Ld. Counsel for the assessee submitted that the said ground is linked to the issue raised by the Revenue in their appeal. He fairly mentioned that in case Revenue's appeal is dismissed for any reason this ground is also required to be dismissed. As discussed above in ITA No.1212/PUN/2014, we have dismissed the Revenue's appeal. Consequently, the ground No.1 of the assessee is also dismissed. 5
ITA Nos.1212 & 333/PUN/2014 C.O. No.21/PUN/2015
11. Referring to Grounds of appeal No. 3 to 5, Ld. Counsel for the assessee submitted that these grounds are either consequential or general in nature. Accordingly, the said grounds are dismissed as such.
12. That leaves Ground No.2 and the facts relevant for this ground include that the assessee brought in additional capital amounting to Rs.49,05,459/-. There was an enquiry about the source of these funds during the assessment proceedings. Except the information on the said sources, assessee submitted various other documents and details with which the AO is not satisfied regarding the sources of the said capital. Eventually, the AO made addition of Rs.49,05,459/- by giving the following reasoning. The reasoning reads as under :
"29. . . . . . . . . But the working given by the assessee is not clear and does not explain the amount of addition to the capital. The assessee was asked to give a further clarification which has not been submitted so far. Therefore, sum of Rs. Rs.49,05,459/- is added to the total income of the assessee as unexplained cash credit u/s.68 of the I.T. Act, 1961. . . . . . . ."
13. During the First Appeal proceedings, assessee filed some more details which were remanded by the CIT(A) to the file of the AO vide letter dated 21-06-2013. AO was asked to examine the sources of huge cash deposits in AMA Bank Account No.59/61 along with many other directions. AO submitted a remand report vide letter dated 30-08-2013. AO has not given any discussion about the source of the funds in his report. This is the stand of the assessee that there are no cash deposits in the bank but there are only cash withdrawals. Therefore, the statement of the AO in his remand report is erroneous.
14. After hearing the assessee and perusing the said remand report the CIT(A) came to the conclusion that the assessee failed to evidence the source of funds. Eventually, the CIT(A) confirmed the addition of 6 ITA Nos.1212 & 333/PUN/2014 C.O. No.21/PUN/2015 Rs.49,05,459/- and dismissed the appeal of the assessee on this issue. The contents of Para No.2.2.9 of the order of CIT(A) is relevant.
15. In this regard, Ld. Counsel for the assessee submitted that there are many apparent mistakes in the orders of the AO and the CIT(A) with regard to the cash deposits qua the cash withdrawals. There is mess in the mind of the AO regarding these facts. According to the Ld Authorised Representative for the assessee, Officers has not understood the contents of the capital account of the assessee and also the written submissions of the Assessee. In the remand report also, the AO failed to give categorical finding with regard to the sources of funds. In fact, remand report is silent on the direction of the CIT(A) on this issue relating to sources of deposits in the capital account. Therefore, adjudication of this issue by the CIT(A) without seeking further clarification from the AO on this issue of addition u/s.68 of the Act is premature. Therefore, the Ld. Counsel for the assessee asked for remanding the issue once again to the file of CIT(A) for fresh adjudication after getting clarifications, if any, from the AO and the assessee.
16. Per Contra, Ld. Departmental Representative for the Revenue heavily relied on the orders of the AO and the CIT(A) dutifully.
17. On hearing both the parties, we find there is contradiction of facts qua the cash deposits/withdrawals out of the bank accounts. The remand report of the AO is deficient to the extent of absence of categorical clarification on the sources of funds that found the way into the capital account of the assessee. As requested by the Ld. Counsel for the assessee, it is necessary for want of facts that this issue should be remanded to the file of CIT(A) for fresh adjudication. CIT(A) is directed to peruse the capital 7 ITA Nos.1212 & 333/PUN/2014 C.O. No.21/PUN/2015 account of the assessee thoroughly and peruse bank accounts of the assessee qua the deposits of the cash into the account. CIT(A) shall do fresh adjudication on this issue after granting reasonable opportunity of hearing to the assessee. Accordingly, Ground No.2 raised by the assessee is allowed for statistical purposes.
18. In the result, the appeal of the assessee is partly allowed for statistical purposes.
C.O. No.21/PUN/2015 (By Assessee) :
19. We now take up the Cross Objections in C.O. No.21/PUN/2015 filed by the assessee. The assessee filed the cross objections touching on the issue of head of income of taxing the gains earned on sale of shares.
20. Before us, Ld. Counsel for the assessee submitted that the said issue has already been adjudicated by the Tribunal in favour of the assessee in earlier assessment years. CIT(A) heavily relied on the said order of the Tribunal while granting relief to the assessee. Thus, the cross objections are raised only to support the findings of the CIT(A). Further, he submitted that, in case Revenue's appeal is dismissed for any reason, there is no need for adjudicating the cross objections raised by the assessee.
21. Considering the relief granted by us while adjudicating ITA No.1212/PUN/2014 filed by the Revenue, adjudication of these grounds become an academic exercise and hence these cross objections are dismissed as academic.
22. In the result, the cross objections filed by the assessee are dismissed.
8
ITA Nos.1212 & 333/PUN/2014 C.O. No.21/PUN/2015
23. To sum up, ITA No.1212/PUN/2014 filed by the Revenue and the Cross Objection No.21/PUN/2015 filed by the assessee are dismissed and ITA No.333/PUN/2014 filed by the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on this 30th day of June, 2017.
Sd/- Sd/-
(VIKAS AWASTHY) (D. KARUNAKARA RAO)
JUDICIAL MEMBER ACCOUNTANT MEMBER
पुणे Pune; दनांक Dated : 30th June, 2017.
सतीश
आदेश क ितिलिप अ िे षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent
3. The CIT(A)-IT/TP, Pune
4. The CIT-IT/TP, Pune
5. DR, ITAT, "A Bench" Pune;
6. गाड फाईल / Guard file.
आदेशानुसार/ BY ORDER,स
//True Copy //
//True Copy//
सहायक रिज ार/Assistant
Registrar
आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune