TaxTMI 
TaxTMI 
2015 (2) TMI 1212
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....ddition to the tune of Rs. 30,40,620/-. iv. That the Ld. Dy CIT-III/A.O. was wrong and against the facts of the case and wrongly made an addition reflected as Income from Short Term Capital gains and long term capital gains and wrongly treated the same as business income of the assessee. 3. Ground No. 1 is of general nature and does not require separate rectification. Ground No. 2 & 3 4. After hearing both the parties we find that during the assessment proceedings it was noticed that assessee deposited cash in the bank and therefore assessee was asked to justify the source of cash. Initially various adjournments were taken and after these adjournments ultimately assessee vide reply dated 24/12/2010 as under: "The assessee has deposited the cash into bank out of the receipt of cash from customers in the ordinary course of business. The detail of the customers giving the complete details of their name, address & PAN numbers is given in the ledger accounts attached herewith. Since the assessee has given the complete details of the cash received hence the provisions of Section 69 of the Income tax Act does not apply. The name of the pe....
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....oj Kumar have conducted business but may be they have not shown the same in their books that's why they have denied these transactions. AO further gave an opportunity to produce any evidence to show that cash was received from Shri. Chaman Lal and Shri. Manoj Kumar but no such evidence was produced. In this background the AO referred to various case laws which clearly shows that assessee was duty bound to explain the source of cash which assessee has failed to do and therefore AO added the sum of Rs. 30,40,620/- to the income of the assessee. 6. On appeal none appeared before the Ld. CIT(A) and therefore the Ld. CIT(A) confirmed the addition. 7. Before us assessee has filed an application for admission of additional evidence which reads as under : "1. That the above mentioned appeal was filed by the appellant and is pending for hearing before this Hon'ble Bench on 21.05.2014. 2. That the applicant/appellant vide this application humbly prays for taking on record various evidences which could not be produced before the authorities below because of unavoidable circumstances and because of the fact that there was shortage of time for finalizing the assessment p....
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....CIT(A) but that has not been done. Further assessee has not filed any evidence and only copy of ledger from the books of the assessee alongwith a copy of the Bank Statement has been filed which cannot be construed as evidence to show that assessee has really received cash from these persons. He also relied on the decision of Hon'ble Punjab & Haryana High Court in case of Shri. Sudhir Kumar Sharma (HUF) Vs. CITIII, in ITA No. 122 of 2014 wherein similar circumstances the Hon'ble Court refused to admit the additional evidence. 10. We have considered the rival submissions carefully and find no force in the submissions of Ld. Counsel for the assessee. The father of the assessee died on 23/02/2010 whereas the assessment proceeding initially started from 30/08/2010 i.e; after a gap of almost six months and therefore death of the father of the assesee cannot be an excuse for not filing the proper evidence. Further the son of the assesseee also remains not well only during the period from Jan to November whereas the assessment order was also finally passed on 31/12/2010. In any case the perusal of the medical report shows that maximum test reports relates to blood sugar level which is n....
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....e admitted. Therefore, considering the circumstances as well as the observations of the Hon'ble High Court in case of M/s Big Bull Commodities Pvt. Limited Vs. The CIT-III (Supra) we reject this application for admission of additional evidence. Since no further arguments were made in respect of these two grounds on merit we are constrained to confirm the addition made by lower authorities. Ground No. 4 11. After hearing both the parties we find that during the assessment proceedings AO noticed that assesee has declared income from trading of shares and which was treated as income of Business & Profession and normal tax was paid. Further assessee had also claimed income under the head of Capital Gain as short term capital gain as well as long term capital gain on some other transactions of dealing in shares. The assessee was called upon to show why the income shown as short term capital gain and long term capital gain should not be treated as business income. In response vide letter dt. 24/12/2010 and 28/12/2010 it was stated as under: "The has made investment in share during the year under consideration he has divided the income in two portfolios- One an investmen....
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....wn the shares as stock in trade which itself makes it clear that transactions were in the nature of trading transaction. 15. We have considered the rival submissions carefully. There cannot be any res-judicata in such matters because in every year it depends on the nature of transactions. The Hon'ble Supreme Court in case of New Jehangir Vakil Mills Co. Ltd. Vs. CIT, Bombay North, Kutch And Saurashtra which was held as under: "Held, that though the question which directly arose before the taxing authorities was whether the assessee was a dealer in shares in 1944, the question of the position of the assessee in 1943 also arose in determining how the profits made in 1944 should be computed. Therefore it was not correct to say that the position of the assessee in 1943 was completely outside the scope of the assessment proceedings for 1946-46. In determining or computing profits made by the sale in shares in 1944, the assessing authorities had to decide whether the assessee started its share-dealing activities on January 1, 1944, or at an earlier date. It was, therefore, open to the taxing authorities to consider the position of the assessee in 1943. The circumstances that ....