Nirmal Kumar Neethu, CHENNAI V. ITO Non Corporate Ward 5(2), CHENNAI

ITA 1044/CHNY/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6910 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 27-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR M SRINIVASA RAO
• Assessee Lawyers: D ANAND
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , . !', $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.1044/CHNY/2018 ' (' / ASSESSMENT YEAR : 2014-15 MRS. NIRMAL KUMAR NEETHU, NO.65/66, 1 ST FLOOR, M.S. KOIL STREET, ROYAPURAM, CHENNAI - 600 013. PAN : AGIPN 1399 K V. THE INCOME TAX OFFICER, NON CORPORATE WARD - 5(2), CHENNAI - 600 006. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI D. ANAND, ADVOCATE ,-*+ . / / RESPONDENT BY : DR. M. SRINIVASA RAO, CIT 0 . 1$ / DATE OF HEARING : 06.02.2019 23( . 1$ / DATE OF PRONOUNCEMENT : 01.03.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI, DA TED 19.02.2018 AND PERTAINS TO ASSESSMENT YEAR 2014-15. 2 I.T.A. NO.1044/CHNY/18 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS REJEC TION OF CLAIM OF THE ASSESSEE UNDER SECTION 10(38) OF THE INCOME-TAX ACT , 1961 (IN SHORT 'THE ACT'). 3. SHRI D. ANAND, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE A SSESSEE UNDER SECTION 10(38) OF THE ACT ON THE BASIS OF THE INFORMATION S AID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA . ACCORDING TO THE LD. COUNSEL, THE COPIES OF THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM KOLKATA AND OTHER ENQUIRIES SAID TO BE CONDUCT ED BY THE ASSESSING OFFICER WERE NOT FURNISHED TO THE ASSESSEE. IT IS NOT KNOWN HOW THE COMPANY IN WHICH THE ASSESSEE INVESTED IS CONSIDERE D TO BE PENNY STOCK COMPANY? THEREFORE, THE LD.COUNSEL SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FURNISH A COPY OF THE INVESTIGATION REPORT SAID TO BE RECEI VED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA AND TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. THE LD.COUNSEL HAS ALSO PLACED HIS RELIANCE ON THE ORDER OF THIS TRIBUNAL IN SHRI ARAV IND NANDLAL KHATRI IN I.T.A. NO.2035/CHNY/2018 DATED 03.12.2018. 4. WE HEARD DR. M. SRINIVASA RAO, THE LD. DEPARTMEN TAL REPRESENTATIVE ALSO. ADMITTEDLY, THE ASSESSING OFF ICER DISALLOWED THE CLAIM OF THE ASSESSEE ON THE BASIS OF THE INFORMATI ON SAID TO BE RECEIVED 3 I.T.A. NO.1044/CHNY/18 FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KO LKATA WITH REGARD TO INVESTMENT MADE BY THE ASSESSEE IN THE PENNY STOCK COMPANY. IT IS NOT IN DISPUTE THAT A COPY OF THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM KOLKATA WAS NOT FURNISHED TO THE ASSESSEE. MOREOVE R, DETAILS OF THE ENQUIRIES SAID TO BE MADE BY THE ASSESSING OFFICER WERE ALSO NOT FURNISHED TO THE ASSESSEE. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS T O RECONSIDER THE ISSUE AFRESH AFTER FURNISHING THE MATERIAL RELIED UPON BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BEL OW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF TH E ASSESSING OFFICER. THE ASSESSING OFFICER SHALL BRING ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE COMPANY AND THE RELATIONSHIP OF THE A SSESSEE, IF ANY WITH THE PROMOTERS, ROLE OF THE ASSESSEE IN INFLATING TH E PRICE OF SHARES, ETC. THE ASSESSING OFFICER SHALL ALSO FURNISH A COPY OF THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA AND OTHER MATERIALS IF ANYTHING IN HIS POSS ESSION AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFT ER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4 I.T.A. NO.1044/CHNY/18 ORDER PRONOUNCED IN THE COURT ON 1 ST MARCH, 2019 AT CHENNAI. SD/- SD/- (. !') ( . . . ) (S. JAYARAMAN) (N.R.S. GANES AN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 1 ST MARCH, 2019. KRI. . ,167 87(1 /COPY TO: 1. *+/ APPELLANT 2. ,-*+/ RESPONDENT 3. 0 91 () /CIT(A)-5, CHENNAI-34 4. PRINCIPAL CIT- 9, CHENNAI 5. 7: ,1 /DR 6. ' ; /GF.