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TMI Blog2023 (9) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... red from own other bank account were added as income in assessment order - Whether these receipts should not be included in the income? - HELD THAT:- DR not contended to these averments on facts but at the same time ld. SR. DR submitted that so far these contentions were not raised or submitted before the lower authorities, needs verification on the part of the ld. AO. She further submitted that let these receipt be verified by the ld. AO and if found in accordance with the law AO may grant the relief to the assessee after verification of evidence based on these evidences contending that the receipt is not taxable. The bench noted that the contentions raised by the assessee cannot be brushed aside and he cannot be taxed on the receipt which is the maturity amount of the fixed deposit receipt with the bank and reimbursement of the expenditure received. But since the assessee has not raised this issue before the ld. AO we admit these additional evidences and direct the ld. AO to verify the contentions of the assessee and as agreed by AO will complete the assessment after verifying the required information from the assessee and grant the relief in accordance with the law with in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in his e-ITR and during assessment proceedings, it has transpired that the assessee has claimed dividend receipts of Rs.13,830/- exempted which hold during his business activities as trading of shares in cash segment on the basis of aggregating of the both margins viz. positive negative at Rs. 28,35,802 which has not declared in his ITR for the year under consideration. Thus, the assessee has neither disclosed his income in accordance to the provisions of section 44AD(1) of the Act nor got his accounts audited in terms of provisions of section 44AD(5) of the Act, so that he was being eligible to declare his income less than the prescribed rate of deemed income to be determined u/s 44AD(1) of the Act. For the same, the assessee has submitted his explanation which is reproduced as under- In reference to Turnover of equity shares Trading mentioned in reasons provided to us we wish to mention that. The above turnover was related to trading of shares and the net result of the same i.e. (49,320) showed in ITR of the assessee as capital gain. 2.1 After considering the contention of the assessee, it has noticed that the assessee has made trading activities in shares, but the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its income under section 44AD. There is capital loss in the shares and thus the addition of Rs. 2,26,864/- should be deleted. From the appellant submission and facts of the case it is clear that the appellant has indulged in the activities of shares transactions and has not revealed the same in the books of account. It is the onus of appellant to maintain the books of accounts and get them audited and the appellant failed to do so. The appellant also failed to explain the source of income and to provide the supportive evidence, Hence, the appeal on this ground is dismissed. Ground No.-3: The appellant claimed deduction of Life Insurance Premium u/s 80C of the Act of Rs. 1,35,000/- in his return of income but gross total income was only Rs. 71,133/- and deduction can not be claimed more than the gross total income. The Assessing Officer is directed to examine the facts of the case and allow the deduction claimed if appellant is eligible for full deduction as per the IT Act. Hence, the appeal on this ground is allowed. 6. In the result, the appeal is partly allowed. 5. As the assessee could not filed any major relief from the order of the ld. CIT(A), the assessee has prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of expenses and therefore, should be deleted. 9. The appellant received maturity amount of his fixed deposits made in Oriental Bank of Commerce in his SBI bank account no. 30469874280 as per below details: 17-06-2015 8,22,488/- 12-02-2016 4,46,168/- TOTAL 12,68,656/- The interest income of Rs. 45,665/- of the Fixed Deposits in OBC is duly shown in the Income Tax Return for the year. But the Ld. AO treated the whole amount of maturity receipt of Fixed Deposit as income and added to the appellant's income. These FDs were made in the erstwhile Oriental Bank of Commerce (OBC), Shivpuri Branch and now the bank is merged with Punjab National Bank (PNB). Certified Copies of Fixed Deposit Certificates are enclosed herewith. Statement of SBI bank account no. 30469874280 is attached herewith. These sums should also be deleted from income. 10. The total of addition made for receipts of reimbursement of expenses and fixed deposits maturity receipts are Rs. 16,06,387/- being (3,37,731 + 12,68,656) should be deleted. The Ld. CIT (Appeals) has erred in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards the contention of the assessee that the gain that he has received from the investing activity is the capital receipt/gain and shall be chargeable to tax as capital gain only. The bench noted that the assessee is employee of the World Health Organization and doing the investing activity and found that he regular income source is salary only. This fact is accepted by the revenue that the assessee is salaried employee and has offered the capital gain in his computation of income for an amount of Rs. 49,320/-. Merely the receipt of the activity is Rs. 28,35,802/- how the applicability of presumptive taxation will apply looking the facts of the case on hand. It is also not disputed by the revenue that the assessee has not disclosed the capital gain for an amount of Rs. 49,320/-. There is no observation of the ld. AO while estimating income at 8 % that why the income offered by the assessee for an amount of Rs. 49,320/- is not correct whether it is of the income from business or profession or from the investing activity. The ld. AO also not dealt with the fact how the provision of section 44AD will apply when apparently these transactions are related investing activity. At thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the income arising from transfer of such shares/securities would be treated as its business income, (b) In respect of listed shares and securities held for a period of more than 12 months immediately preceding the date of its transfer, if the assessee desires to treat the income arising from the transfer thereof as Capital Gain, the same shall not be put to dispute by the Assessing Officer. However, this stand, once taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent Assessment Years also and the taxpayers shall not be allowed to adopt a different/contrary stand in this regard in subsequent years; (c) In all other cases, the nature of transaction (i.e. whether the same is in the nature of capital gain or business income) shall continue to be decided keeping in view the aforesaid Circulars issued by the CBDT. 4. It is, however, clarified that the above shall not apply in respect of such transactions in shares/securities where the genuineness of the transaction itself is questionable, such as bogus claims of Long Term Capital Gain/Short Term Capital Loss or any other sham transactions. 5. It is reiterated that the above prin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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