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TMI Blog2013 (7) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority whose order is in appeal before it. In favour of assessee for statistical purposes. - I.T.A. No. 2307/Del/2012, I.T.A. No. 3550/Del/2012, I.T.A. No. 3551/Del/2012 - - - Dated:- 14-6-2013 - Shri U. B. S. Bedi And Shri Shamim Yahya,JJ. For the Petitioner : Sh. Ashwani Taneja, Adv. For the Respondent : Sh. Gunjan Prasad, C.I.T.(D.R.) ORDER Per Shamim Yahya: AM. These appeals by the Assessee and Revenue emanate out of orders of the Ld. Commissioner of Income Tax (A) in case of separate assessees. Since the issues are connected, the appeal were heard together, hence, these are being consolidated and disposed of by this common order. I.T.A. NO. 3551 (A.Y. 2004-2004-05) - [ACIT VS. SEEMA TRIPATHI] 2. The issues raised in the Revenue's appeal read as under:- 1. The order of the Ld. Commissioner of Income Tax (A) is not correct and in law and facts. 2. On the fact and in the circumstances of the case, the Ld. Commissioner of Income Tax (A) has erred in deleting the addition of Rs. 48,70,250/- made by the Assessing Officer u/s. 68 of the I.T. Act, 1961 as unexplained cash credit on account of sale of shares of M/s M.P. Investment and Quest Financial Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income Tax (A) and ITAT, Agra. It was stated in the assessment order that the order of the ITAT had not been received hence he proceeded with the addition. I do not find any reason to uphold the additions when the matter is settled by the superior court. Therefore, an additions of Rs. 48,70,250/- on account of alleged bogus transaction of shares and an addition of Rs. 97,417/- on account of 2% brokerage allegedly paid for accommodation entries is hereby deleted." 6. Against the above order the Revenue is in appeal before us. 7. We have heard both the counsel and perused the records. Ld. Counsel of the assessee submitted that the issue stands covered by the order of the Tribunal mentioned above. Ld. Departmental Representative fairly submitted that the issue involved is covered by the order of the Tribunal referred hereinabove. We have considered the submissions and perused the records. We find that u/s. 143(3) in this case assessment was completed and addition of Rs. 48,70,250/- and Rs. 97417/- was made by the Assessing Officer. However, the addition was deleted by the Ld. Commissioner of Income Tax (A). This order of the Ld. Commissioner of Income Tax (A) was affir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in law and on facts in not quashing the impugned assessment order u/s. 153A read with 143(3) that too without assuming jurisdiction as per law and without recording requisite satisfaction as per law and without obtaining approval as per law and without complying with the other mandatory conditions as envisaged under the Act. 2. That having regard to the facts and circumstances of the case, the Ld. Commissioner of Income Tax (A) has erred in law and on facts in not quashing the impugned assessment which was framed by Assessing Officer in violation of principles of natural justice in as much as passing the impugned order by recording incorrect facts and findings and without providing adequate opportunity of hearing. 3. That having regard to the facts and circumstances of the case, Ld. Commissioner of Income Tax (A) has erred in law and on facts in not deleting the addition of RS. 1,49,48,490/- fully as made by the Assessing Officer on account of long term capital gain arising out of sale of shares and has further erred in sustaining the addition of Rs. 97,26,760/- received on account of sale of shares of M/s Nageshwar Investment Ltd. by treating it as accommodation entry and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed second appeal before ITAT, Agra Bench, Agra and the order of the Ld. Commissioner of Income Tax (A) was confirmed by the ITAT, Agra Bench, Agra as per their order dated 23.7.2010. However, since the above order of the ITAT has not been received so far in this office so far from the ITAT, Agra, through the office of Ld. Commissioner of Income Tax, Central-I, New Delhi, therefore, the above addition of Rs. 1,49,48,490/- and Rs. 2,98,670/- is being made again hereunder in the total income of the assessee in view of large tax effect involved, and the department may file appeal in the Hon'ble High Court of Delhi in this regard." 11. Upon assessee's appeal Ld. Commissioner of Income Tax (A) took a note of the Tribunal's order in the case of the assessee in proceedings in assessment framed u/s. 143(3) of the I.T. Act. He observed that in the absence of any contrary adverse material on record, the addition on account of sale and shares of M/s MP Investment Ltd. and M/s Quest Financial Services Ltd. cannot be sustained. In doing so the Ld. Commissioner of Income Tax (A) observed that the issue has been decided in favour of the assessee by the ITAT and no further adverse material has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings / enquiries the addition in respect of sale of shares of M/s Nagehswar Investment Ltd. is liable to be confirmed. 15. Ld. Commissioner of Income Tax (A) further observed that in the present case the identity of Nageshwar Investment Ltd. is not doubtful and the transaction have also been effected through the banking channel, however, the most vital element i.e. genuineness of transactions is not proved beyond reasonable doubt. The increase in price of shares sold reveals unusual variation particularly when there is no extraordinary activity in the company i.e. M/s Nageshwar Investment Ltd. which can lead to such kind of jump in its share prices. Ld. Commissioner of Income Tax (A) concluded as under:- "Thus, an addition of Rs. 97,26,760/- on sale of shares of M/s Nageshwar Investment Ltd. is hereby confirmed. Further a burden an accommodation entry commission @ 2% i.e., Rs. 194535/- is also confirmed. Additions of Rs. 22,40,730/- and Rs. 29.81,000/- on account of sale of shares of M/s MP Investment Ltd. and of Quest Financial Services respectively and expenditure on commission thereon for procuring accommodation on each is hereby deleted." 16. Against the above ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the fore in the case of the sale of shares of M/s Nageshwar Investment Ltd. and in view of the new materials that have emerged. Ld. Commissioner of Income Tax (A) has rightly sustained the addition in this regard. 22. We have carefully considered the submissions and perused the records. We find that there is no doubt that on the issue of addition on account of sale of shares M/s Nageshwar Investment Ltd., the tribunal in the proceeding emerging out of assessment u/s. 143(3) has deleted the addition. However, Ld. Commissioner of Income Tax (A) noted that some new facts have emerged out of search and post search enquiries which warrant the addition in this regard. Ld. Counsel of the assessee in this regard has submitted that Ld. Commissioner of Income Tax (A) has not spelt out all the materials that have been found. The said materials have also not been confronted to the assessee. It is also an admitted position that Assessing Officer has not mentioned about these materials / enquiries in the assessment order. It is also undisputed that these new materials were not confronted to the assessee. Hence, assessee had no opportunity of rebutting the same. 23. In our considered opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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