TMI Blog2019 (1) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... : Sh. Kapil Goel, Adv. For The Revenue : Sh. S.L. Anuragi, Sr. DR. ORDER These three appeals filed by the separate Assessees are directed against the respective Orders of the Ld. CIT(A)-10, New Delhi relevant to assessment year 2014-15. Since the issues involved in these appeals are common and identical, hence, the appeals were heard together and are being disposed of by this common order for the sake of convenience, by dealing with ITA No. 7309/Del/2018 (AY 2014-15) Nitin Agarwal (HUF) vs. ITO. In all the three appeals assessee has raised as many as 11 grounds, but argued the only one common ground no. 8 in all the appeals, except the difference in figure. Therefore, I am reproducing the common ground no. 8 as under:- .. 8. That on the facts and in the circumstances of the case and in law Ld. CIT(A) erred in sustaining the action of AO in making addition of ₹ 22,13,779/- without appreciating that section 68 is not applicable to sale of shares as mentioned in the impugned assessment order. 2. I will first take up the appeal in the case of Nitin Agarwal (HUF) vs. ITO being ITA No. 7309/Del/2018 (AY 2014-15) and my finding given therein will app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e receipt of ₹ 21,49,300/- as income of the assessee and added back to his hand u/s. 68 of the Act read with section 115BBE of the Act and also made addition being commission @3% amounting to ₹ 64,479/- paid by the assessee from undisclosed sources vide order dated 26.12.2016 passed u/s. 143(3) of the Act. Against the said assessment, assessee appealed before the Ld.CIT(A), who vide his impugned order dated 17.9.2018 has dismissed the appeal of the assessee. Aggrieved with the impugned order, the assessee is in appeal before the Tribunal. 4. At the time of hearing, Ld. counsel for the assessee has only argued the ground no. 8 by stating that exactly the similar issue to the ground no. 8 in the present appeal has been recently adjudicated and decided by the ITAT, Delhi B Bench order dated 05.12.2018 in ITA No. 1931/Del/2016 (AY 2010-11) in the case of Inder Singh vs. ITO, Ward 43(3), New Delhi. He further stated that Section 68 is not applicable to the sale of shares as mentioned in the impugned order. He draw my attention towards para no. 6 of the order wherein it was stated that AO has invoked the section 68 of the Act, on cash deposit found in bank accounts and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted long term capital gains and paper work has been got up and done merely to give a colour of authenticity to the transaction and by creating a facade of legitimate transactions. Hence, AO denied the exemption claimed u/s. 10(38) of the Act and treated the entire receipt of ₹ 21,49,300/- as income of the assessee and added back to his hand u/s. 68 of the Act read with section 115BBE of the Act and also made addition being commission @3% amounting to ₹ 64,479/- paid by the assessee from undisclosed sources, which does not need any interference on my part. 6. I have heard both the parties and perused the records and the case laws cited by the Ld. counsel for the assessee. I find that in this case return of income was filed on 30.7.2014 declaring an income of ₹ 5,72,720/-. The AO completed the assessment at ₹ 27,86,500/- against the returned income of ₹ 5,72,720/- and made the additions. In appeal, Ld.CIT(A) has dismissed the appeal of the assessee. We find that in this case also AO has invoked the Section 68 of the Act on cash deposits found in the bank accounts. It is correct that since no books of account are maintained in the ordinary course of bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to following decisions of this Tribunal, in support of his argument: S.No Particulars/Title of Decision Bench etc. (Citation/Reference No./Order date) Held (Gist in brief) Relevant Para 1. Babbal Bhatia A Bench Delhi ITAT ITA 5430 5432/Del/2011 (08/06/2018) Para 19 (Para 14 to 26) 2. Zaheer Abdulhamid Mulani SMC Pune Bench (Before Ms. Sushma Chowla and Shri Anil Chaturvedi) ITA 862/Pun/2017 (31.08.2018) Para 13 3. Latif Ebrahim Patel Mumbai A Bench ITA 7097/Mum/2013 (23.03.2018)Para 7 Para 8 (Mumbai ITAT decisions in 164 ITD 296 160 ITD 605 followed) 4. Shamsher Singh Gill Delhi SMC Bench in ITA 2987/Del/2015 (28/02/2017) Para 4 to 7 5. Danveer Singh Delhi SMC Bench in ITA 4036/Del/2017 (14/12/2017) Para 5 6. Om Prakash Delhi E Bench in ITA 1325/Del/2011 (11/08/2016) Para 5 to 8 7. Kamal Kumar Mishra Lucknow ITAT 143 ITD 686 Para 7 8. Sunil Vaid Delhi ITAT SMC Bench in ITA 2414/Del/2016 (30/12/2016)Para 7 9. On contrary, Ld. Sr. DR referring to definition of books, books of account as defined under section 2(12A) of the Act, submitted that, it is not an inclusive definition in order to restrict meaning of what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. It is unfortunate that Assessing Officers blindly apply provisions, which can be fatal to the interest of Revenue. However as a Tribunal, we are not competent to make addition u/s 69A of the Act, by virtue of the decision of Hon ble Allahabad High Court in case of Smt. Sarika Jain vs. CIT reported in 407 ITR 254. Hon ble High Court observed as under. 18. In view of the above, when the said income cannot be added u/s 68 of the Act and the Tribunal was not competent to make the said addition under section 69A of the Act, the entire order of the Tribunal stand vitiated in law. Respectfully following the above observation by Hon ble Allahabad High Court, we allow additional ground raised by assessee, only because addition u/s 68 is not sustainable in present facts of case. Accordingly the additional ground raised by assessee stands allowed. 16. As we have allowed additional ground, addition made by Ld.AO under section 68 stands deleted and, therefore, we do not find it necessary to decide other grounds raised as they become infructuous. Accordingly the other grounds raised in the ground of appeal stands dismissed as infructuous. In the result appeal file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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