SIBGHAT ULLAH KHAN, SATISH CHANDRA, J. - (1.) BOTH the appeals have been filed by the department under Section 260 -A of the Income Tax Act, against the judgment and orders dated 26.09.2008 passed by the Income Tax Appellate Tribunal, Lucknow in I.T.Nos.1067/Luc/2006; and 289/Luc/2008 pertaining to the penalty under Section 271 (1)(c). Thus, both appeals are pertaining to the quantum and penalty respectively.
(2.) ON 23.03.2009, a co -ordinate Bench of this Court has admitted the quantum appeal on the following substantial questions of law: - I. Whether the learned Income Tax Appellate Tribunal has erred in law in setting aside the issue of bogus capital gains to the file of the Assessing Officer even though the entire material required for deciding the same was available on record. II. Whether the learned Income Tax Appellate Tribunal has erred in law in admitting additional evidence on the basis of a bald statement that the said evidence goes to the root of the issue under consideration. III. Whether the learned Income Tax Appellate Tribunal has erred in law in admitting additional evidence without considering the plea of the department that the additional evidence did not in any manner advance the case of the assessee. Similarly, on 27.03.2009, the penalty appeal was also admitted. The brief facts of both the cases are that the assessee is a wholesale dealer in Kirana (grossery) items. The assessee declared Long Term Capital Gains of Rs.58,52,266.00 on sale of shares of 'Suma Financial Investment Ltd.'. The Assessing Officer pointed out several discrepancies in the share transactions and he, therefore, concluded that the share transactions are bogus and represented assessee's undisclosed income from undisclosed sources. Accordingly, Rs.61,24,622.00 received on sale of shares was added to the assessee's total income. The Commissioner of Income Tax (Appeals) confirmed the action of the Assessing Officer and directed the Assessing Officer to make an addition on Rs.58,65,652/ - by recomputing the compensation. However, in appeal preferred by the appellant, the Income Tax Appellate Tribunal admitted the additional evidence filed by the petitioner and remanded the issue back to the file of the Assessing Officer for fresh adjudication after examining the additional evidence. Thus, the issue pertaining to deleting the addition and cancellation of the penalty were referred back to the A.O. for fresh adjudication.
(3.) WITH this background, we have heard Sri D.D.Chopra, learned counsel for the department and Sri K.R.Rastogi holding brief of Sri S.K.Garg, learned counsel for the assessee and gone through the material available on record. From the record, it appears that in the year 2008, the Tribunal has remanded the matter back to the A.O., as the fresh evidence was admitted by the Tribunal.;