Smt. Madhu Agarwalla, V. ACIT,

ITA 1/RAN/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76446 (ITAT-RANCHI)
• Duration Of Justice: 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 01-01-2014
• Court: TRIBUNAL
• Department Lawyers: CHOUDHURY ORA M JCITLD
• Assessee Lawyers: S K PODDAR; M K CHOUDHURY S LD ARS
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

INCOME TAX APPELLATE TRIBUNAL, CIRCUIT BENCH, RANCHI BEFORE HON'BLE SHRI H.L. KARWA, PRESIDENT , AND HON'BLE SHRI B.R. BASKARAN, ACCOUNTANT M EMBER ITA NO . 01 /RAN/201 4 A.Y 200 8 - 09 SMT. MADHU AGARWALLA, DHANBAD VS. AC IT, CIR - 2, DHANBAD PAN: A BUPA5433A ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT : S/ SH RI S.K PODDAR & M.K CHOUDHURY, ADVOCATES, LD.ARS FOR THE RESPONDENT : SHRI CHOUDHURY ORA M , JCIT/LD.DR DATE OF HEARING : 24 - 11 - 2014 DATE OF PRONOUNCEMENT: 24 - 11 - 201 4 ORDER SHRI B.R. BASKARAN, ACCOUNTANT M EMBER : THIS APPEAL FILED BY THE ASSESEE IS DIRECTED AGAINST THE ORDER DATED 3 1 - 1 0 - 201 3 PASSED BY LD. CIT(A) , DHANB A D (JHARKHAND) AND IT RELATES TO THE ASSESSMENT YEAR 200 8 - 09 . THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD.CIT(A) IN RESPECT OF HE FOLLOWING THREE ISSUES: - A ) DISALLOWANCE OF COMMISSION CLAIM OF RS. 4.62 LAKHS B ) D ISALLOWANCE OF SHORT TERM CAPITAL LOSS OF RS.9,20,816/ - AND ASSESSMENT OF INCOME FROM HOUSE PROPERT Y. C ) ENHANCEMENT OF CAPITAL GAIN OF RS.9,83,063/ - 2. THE FACTS RELATING TO THE ABOVE STATED ISSUES ARE STATED IN BRIEF. DURING THE YEAR UNDER CONSIDERATION THE A SSESSEE HAS SOLD HER PROPERTY LOCATED IN GENERAL J.B BHOSALE MARG, NEAR NARIMAN POINT, MUMB AI FOR A CONSIDERATION OF RS. 2.36 CRORES. THE ASSESSEE CLAIMED DEDUCTION OF COMMISSION EXPENSES OF RS. 4.62 LAKHS AGAINST THE ABOVE SALE CONSIDERATION. THE ASSESSEE ALSO ADJUSTED LONG TERM CAPITAL LOSS OF RS. 8.63 LAKHS ARISING ON SALE OF EQUITY SHARES OF M/S.BLA 2 ITA NO. 01/RAN/14 - AM - SMT. MADHU AGARWALLA,D BAD INTERNATIONAL. THE ASSESSING OFFICER NOTICED THAT THE COMMISSION AMOUNT WAS PAID TO M/S. BAL BINODE BAJORIA (HUF) AND SRI SHARAD BAJORIA. THE ASSESSING OFFICER TOOK THE VIEW THAT THE HUF CANNOT ACT ON ITS OWN CAPACITY IN RESPECT OF BROKERAGE DEA LING. FURTHER SRI SHARAD BAJORIA TO WHOM ALSO THE COMMISSION PAID WAS RESIDING IN KOLKATA. ACCORDINGLY, THE AO TOOK THE VIEW THAT SHRI SHARAD BAJORIA COULD NO T HAVE PROVIDED THE SERVICES TO THE ASSESSEE. ACCORDINGLY, THE ASSESSING OFFICER TOOK THE VI EW THAT COMMISSION PAYMENT WAS NOT PROVED BY THE ASSESSEE. ACCORDINGLY, HE DISALLOWED THE SAID CLAIM . 3. THE ASSESSEE HAS ALSO SOLD ANOTHER PROPERTY LOCATED IN DELHI AND CLAIMED SET OFF OF SHORT TERM CAPITAL GAIN ARISING OUT OF SALE OF EQUITY SHARES OF M/S. FFPL . THE ASSESSING OFFICER DISALLOWED THE CLAIM OF LOSS ARISING ON SALE OF SAID EQUITY SHARES OF M/S. FFPL ON THE GROUND THAT THE ASSESSEE HAS FAILED TO PROVE THE CLAIM OF PURCHASE OF SHARES. 4. IN THE APPELLATE PROCEEDINGS, THE LD.CIT(A) CONFIRMED THE DISALLOWANCE OF COMMISSION PAYMENT AND ALSO CONFIRMED DISALLOWANCE OF CLAIM OF SET OFF OF SHORT TERM CAPITAL LOSS ARISING ON SALE OF EQUITY SHARES OF M/S. FFPL. THE LD. CIT(A) NOTICED THAT THE ASSESSEE HAS CLAIMED LONG TERM CAPITAL LOSS ON SALE OF M/S . BLA INTERNATIONAL AND ADJUSTED THE SAME AGAINST THE GAIN ARISING ON SALE OF SAID MUMBAI PROPERTY . THE LD. CIT(A) TOOK THE VIEW THAT THE SAID CLAIM IS A BOGUS ONE. ACCORDINGLY, HE DISALLOWED THE SAID CLAIM EVEN THOUGH IT HAD BEEN ALLOWED BY THE ASSESSI NG OFFICER. IT IS ALSO PERTINENT TO NOTE THAT THE LD.CIT(A) HAS DIRECTED THE ASSESSING OFFICER TO ASSESS THE SUM OF RS. 1, 19,700/ - AS INCOME FROM HOUSE PROPERTY OUT OF THE AMOUNT RECEIVED ON SALE OF EQUITY SHARES OF M/S. BLA INTERNATIONAL. AGGRIEVED, THE A SSESSEE HAS FILED THIS APPEAL BEFORE US. 5 . WE HAVE HEARD THE PARTIES AND PERUSED THE RECORDS . THE FIRST ISSUE RELATES TO THE CLAIM OF COMMISSION OF RS.4.62 LAKHS MADE IN CONNECTION WITH SALE OF MUMBAI FLAT. THOUGH THE ASSESSEE HAS SUBMITTED THAT THE SA ID PAYMENT W A S PROVED BY SUP PORTING VOUCHERS, YET WE NOTICE THAT THE ASSESSEE COULD NOT PROVE AS TO HOW A PERSON RESIDING IN KOLKATA COULD PROVIDE SERVICES IN RESPECT OF THE 3 ITA NO. 01/RAN/14 - AM - SMT. MADHU AGARWALLA,D BAD PROPERTY LOCATED IN MUMBAI. THE ASSESSEE ALSO COULD NOT PROVE AS TO HOW AN HUF E NTITY COULD PROVIDE PERSONAL SERVICES OF IDENTIFYING A BUYER FOR THE ABOVE SAID PROPERTY. UNDER THE SE SET OF FACTS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) IN CONFIRMING THE DISALLOWANCE OF CLAIM OF COMMISSION PAYMENT. 5 .1 WITH REGARD TO THE OTHER ISSUES THE LD.AR HAS SUBMITTED THAT THE ASSESSEE COULD NOT PROPERLY FURNISH THE RELEVANT DETAILS TO THE ASSESSING OFFICER AS WELL AS TO THE LD.CIT(A). ACCORDINGLY, THE LD.AR PRAYED BEFORE US THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNI TY TO PROVE ITS CLAIM. THE LD.DR ALSO DID NOT SERI OUSLY OBJECT TO THE SAID PLEA PUT FORTH BY THE LD.AR . ACCORDINGLY, IN THE INTEREST OF NATURAL JUSTICE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) IN RESPECT OF REMAINING ISSUES AND RESTORE THEM TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE M AFRESH AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS P ARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 24 - 11 - 2014 SD/ - SD/ - [ H.L. KARWA ] [ B.R. BASKARAN ] PRESIDEN T ACCOUNTANT MEMBER DT. 24 - 11 - 2014 PLACE : RANCHI PP, SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT : SMT.MADHU AGARWALA,LAL BUNGLOW,BARWA RD., DHAIYA,P.ONAGNAGAR,DIST:DHANBAD 826004 2 THE RESPONDENT: CIT,AAYKAR BHAWAN, LUBY CIRCULAR RD., PO & DIST:DHANBAD 826001 3. .THE CIT, 4.THE CIT(A), 4 ITA NO. 01/RAN/14 - AM - SMT. MADHU AGARWALLA,D BAD 5.DR, ITAT CIRCUIT BENCH, RANCHI 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT. REGISTRAR 5 ITA NO. 01/RAN/14 - AM - SMT. MADHU AGARWALLA,D BAD 1. DATE OF DICTATION ............. 24 - 11 - 2014 ....................... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ........................OTHER MEMBER ....... 2 6 - 11 - 2014 ........................ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. ..................... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.................................. 24 - 11 - 2014 ................................................... 5. DATE ON WHICH THE FA IR ORDER COMES BACK TO THE SR. P.S./P.S ................ 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK ....................................... 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ......................................... 8. THE DATE ON WHI CH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................................................................................................. 9. DATE OF DESPATCH OF THE ORDER ...................................................... ........