Smt. Jyoti Jain, Chandigarh V. ACIT, C-4(1), Chandigarh

ITA 1075/CHANDI/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7442 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-07-2021
• Assessment Year: 2014-2015
• Appeal Filed On: 31-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEENAKSHI VOHRA AD DL
• Assessee Lawyers: PANKAJ BHALLA
• Keywords: Question of law; Initiation of penalty proceedings; Revised return; Capital Gains
• Section: 271(1)(c); 133A; 274; 9(1); 9(1); 9(1); 13; 2

Judgement Text

, ,A, IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A CHANDIGARH BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER, AND SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 1074/CHD/2019 / ASSESSMENT YEAR: 2014-15 SHRI LALIT JAIN S.C.O. 371-372, 2 ND FLOOR, SECTOR-35B, CHANDIGARH THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-4(1), CHANDIGARH ./PAN NO : AAUPJ 0091Q /APPELLANT /RESPONDENT ./ ITA NO. 1075/CHD/2019 / ASSESSMENT YEAR: 2014-15 SMT. JYOTI JAIN S.C.O. 371-372, 2 ND FLOOR, SECTOR-35B, CHANDIGARH THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-4(1), CHANDIGARH ./PAN NO : AAJPJ 1703A /APPELLANT /RESPONDENT /ASSESSEE BY : SHRI NIKHIL GOYAL, ADV., SHRI ASHOK GOYAL, CA & SHRI PANKAJ BHALLA, CA ! / REVENUE BY : SMT. MEENAKSHI VOHRA, AD DL. CIT ' #$ /DATE OF HEARING : 28.07.2021 %&'($ /DATE OF PRONOUNCEMENT : 25.08.2021 ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 2 (THROUGH VIRTUAL HEARING) /ORDER PER ANNAPURNA GUPTA, A.M. : THE PRESENT APPEALS RELATE TO DIFFERENT ASSESSEES A ND HAVE BEEN FILED AGAINST THE SEPARATE ORDERS PASSED BY THE COM MISSIONER OF INCOME TAX (APPEALS)-2, CHANDIGARH [IN SHORT REFERR ED TO AS CIT(A)] BOTH DATED 30-05-2019 U/S 250(6) OF THE I NCOME TAX ACT,196 (HEREINAFTER REFERRED TO AS ACT). 2. AT THE OUTSET ITSELF, LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE ISSUE IN BOTH THE APPEALS WAS IDENTICAL AN D AROSE IN THE BACKDROP OF IDENTICAL FACTS AND CIRCUMSTANCES. HE P OINTED OUT THAT THE ISSUE RELATED TO LONG TERM CAPITAL GAINS ON THE SALE OF SHARES OF THE SAME SCRIP, I.E., M/S KAILASH AUTO ,WHICH TH E ASSESSEES HAD ORIGINALLY CLAIMED AS EXEMPT U/S 10(38) OF THE ACT, BUT ON SURVEY CONDUCTED ON BOTH OF THEM ON 03.09.2015 U/S 133A OF THE ACT ,WHERE CERTAIN EVIDENCES RELATING TO THE CLAIM OF L ONG TERM CAPITAL GAINS ALLEGEDLY BEING BOGUS WERE UNEARTHED ,THE AS SESSEE SURRENDERED THE LONG TERM CAPITAL GAINS AS ITS INCO ME BY WAY OF FILING A REVISED RETURN DECLARING AN AMOUNT OF RS. 71,91,150/- IN THE CASE OF SHRI. LALIT JAIN AND 56,58,000/- IN THE CAS E OF SMT. JYOTI JAIN. THAT THE REVISED RETURN FILED BY THE ASSESSEE WAS ASSESSED AS ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 3 SUCH IN BOTH CASES AND PENALTY PROCEEDINGS U/S 271( 1)(C) WERE INITIATED. THAT AGAINST THE ASSESSMENT ORDER SO FR AMED, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) AND DURING PENDE NCY OF THE APPEAL RAISED ADDITIONAL GROUNDS CHALLENGING THE A SSESSMENT OF THE SURRENDERED INCOME ON ACCOUNT OF ALLEGED BOGUS LONG TERM CAPITAL GAIN TRANSACTIONS. THE SAID ADDITIONAL GROUND WAS N OT ADMITTED BY THE LD. CIT(A) FOR ADJUDICATION, WHO THEREAFTER DI SPOSED OF THE APPEALS DISMISSING THE SAME SINCE THE ONLY OTHER I SSUE REMAINING RELATED TO INITIATION OF PENALTY PROCEEDINGS. THE LD. DR AGREED TO THE COMMONALITY OF THE AFORES TATED FACTS IN BOTH THE PRESENT APPEALS. IN VIEW OF THE SAME CONSIDERING THAT THE ISSUE INVO LVED IN BOTH THE APPEALS WAS IDENTICAL THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON CONSOLIDATED ORDER. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN BOTH THE APPEALS, WE ARE THEREFORE DEALING WITH THE GROUNDS RAISED IN ITA NO. 1074/CHD/2019 AND OUR DECISION RENDERED THEREIN WILL APPLY MUTATIS MUTANDIS TO THE OTHER APPEAL ALSO. TAKING UP GROUND NO. 1 AND 2 WHICH READ AS UNDER: 1. THAT THE LD. CIT(A)-2, CHANDIGARH HAS WRONGLY P ASSED THE ORDER U/S 250(6) OF THE INCOME TAX ACT, 1961 AGAINST LAW & FA CTS OF THE CASE. ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 4 2. THAT THE LD. CIT(A)-2, CHANDIGARH ERRED IN LAW & FACTS IN NOT ADMITTING ADDITIONAL GROUND OF APPEAL WITHOUT ANY B ASE & REASONS THEREOF LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ACT OF THE LD. CIT(A) IN NOT ADMITTING THE ADDITIONAL GROUNDS OF A PPEAL WAS WHOLLY UNJUSTIFIED. DRAWING OUR ATTENTION TO THE OR DER OF THE LD. CIT(A) DISMISSING THE ADMISSION OF THE ADDITIONAL G ROUNDS AT PARA 6 TO 6.1.1 OF HIS ORDER, LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE REASON FOR NOT ADMITTING THE ADDITIONAL GROUND S WAS PRIMARILY THAT IT WAS RAISED AFTER LAPSE OF NEARLY ONE AND H ALF YEARS AFTER THE APPEAL WAS FILED AND THERE WAS NO SUBSTANTIAL REASO N FOR THE SAME. LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE FA CTS WERE IN FACT TO THE CONTRARY AND THERE WERE VALID REASONS FOR RA ISING THE ADDITIONAL GROUNDS BEFORE THE LD. CIT(A) WHICH COUL D NOT HAVE BEEN RAISED EARLIER. LD. COUNSEL FOR THE ASSESSEE P OINTED OUT THAT AFTER THE SURRENDER MADE BY THE ASSESSEE OF ALLEGED BOGUS LONG TERM CAPITAL GAIN BY WAY OF FILING A REVISED RETURN , IT SO TRANSPIRED THAT THE FINAL ORDER OF SEBI IN THE CASE OF THE SCR IP TRANSACTED IN BY THE ASSESSEE, I.E., M/S KAILASH AUTO, WAS PASSED IN WHICH IT WAS CONCLUDED THAT THERE WAS NO MANIPULATION IN THE SCR IP. HE CONTENDED THEREFORE THAT ALL THE EARLIER ORDERS WER E LIABLE TO BE QUASHED. WITH THIS FACT THE SURRENDER MADE BY THE A SSESSEE WAS SOUGHT TO BE REVOKED AND THEREFORE ADDITIONAL GROUN DS WERE RAISED ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 5 BEFORE LD. CIT(A). LD. COUNSEL FOR THE ASSESSEE CON TENDED THAT ON ACCOUNT OF THE SUBSEQUENT EVENT AFTER THE PASSING O F THE ASSESSMENT ORDER, THEREFORE THE SAID GROUND WAS RAISED AS ADDI TIONAL GROUND IN APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). HE CON TENDED THAT IT IS SETTLED POSITION OF LAW THAT THE ASSESSEE IS WELL W ITHIN HIS RIGHT TO MAKE A CLAIM FOR DEDUCTION BEFORE AN APPELLATE AUTH ORITY FOR THE FIRST TIME. 3. A BRIEF SUBMISSION IN THIS REGARD WAS FILED BEFORE US AS UNDER: 2.1. SUBMISSIONS WITH RESPECT TO GROUND NO. 1 AND 2 1. THAT THE LD. CIT(A)-2, CHANDIGARH HAS WRONGLY PA SSED THE ORDER U/S 250(6) OF THE INCOME TAX ACT, 1961 AGAINST LAW & FACTS OF THE CASE. 2. THAT THE LD. CIT(A)-2, CHANDIGARH ERRED IN LAW & FA CTS IN NOT ADMITTING ADDITIONAL GROUND OF APPEAL WITHOUT ANY BASE & REAS ONS THEREOF. 2.1.1. THE LD. CIT HAS ERRED IN LAW AND FACTS IN NO T ADMITTING ADDITIONAL GROUND OF APPEAL WITHOUT ANY BASE AND REASON AND BY JUST QUOT ING THAT THE ASSESSEE HAS FILED ADDITIONAL GROUNDS OF APPEAL AFTER A LAPSE OF NEARLY ONE AND HALF YEARS AND THERE WAS NO SUBSTANTIAL REASON FOR THE SAME. T HUS, ADMISSIBILITY OF ADDITIONAL GROUND IS REJECTED OUTRIGHTLY. 2.1.2. THE SEQUENCE OF EVENTS ARE EXPLAINED IN BRIEF FOR EXPLAINING THE REASON THAT WHY THE ASSESSEE FILED ADDITIONAL GROUNDS OF APPEAL AFTER A LAPSE OF NEARLY ONE AND HALF YEARS. ASSESSEE FILED HIS ORIGINAL RETURN UNDER SECTION 13 9(1) FOR THE YEAR UNDER CONSIDERATION VIDE ACKNOWLEDGEMENT NO. 300443260310 714. SURVEY WAS CONDUCTED AT ASSESSEE PREMISES AND CERTA IN EVIDENCES RELATING TO BOGUS LONG TERM CAPITAL GAIN RELATING TO SHARE TRAN SACTIONS IN SCRIP NAME KAILASH AUTO TAKEN BV THE ASSESSEE WERE SHOWN TO HI M. NO INCRIMINATING ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 6 DOCUMENT WAS FOUND AT THE PREMISES OF THE ASSESSEE. SOME OTHER EVIDIENCES SHOWN TO ASSESSEE WITH WHICH HE HAD NO CORRELATION IN VIEW OF THE EVIDENCES, AND TO BUY PEACE OF MIND THE ASSESSEE MADE CONDITIONAL SURRENDER SUBJECT TO NO PENAL ACTION AT INCOME OF RS.71,91,150/- FOR THE FY 2013-14 AND RS.9,60,450/- FOR THE FY 2014-15 ON ACCOUNT OF SO CALLED BOGUS EXEMPT LONG TERM CAPITAL GAINS. SUBSEQUENTLY, THE ASSESSES FILLED A REVISED RETURN ON 23.10.2015. THEREAFTER, ASSESSMENT ORDER WAS PASSED AND THE INC OME OF THE ASSESSEE AS PER REVISED RETURN AND PENALTY PROCEEDINGS U/S 274 R.W.S. 271(1)(C) WAS INITIATED SEPARATELY. APPEAL AGAINST THE PENALTY ORDER WAS FILED ON 23.12 .2016 BEFORE COMMISSIONER OF INCOME TAX AGAINST PENALTY WRONGLY INITIATED BY THE LD. AO U/S 271(1) (C). IN THE MEANWHILE. FINAL ORDER OF SEBI IN CASE OF M/ S KAILASH AUTO WAS PASSED AND IT WAS CONCLUDED THAT THERE IS NO MANIPU LATION IN THE SCRIP OF M/S KAILASH AUTO. THUS, ALL THE EARLIER ORDER ARE L IABLE TO BE QUASHED. IN VIEW OF THE SEBI ORDER, IT WAS VERY OBVIOUS THAT DOCUMENTS SHOWN TO THE ASSESSEE WERE NOT SHOWING THE TRUE SCENARIO AND IT WAS HALF VERIFIED INFORMATION. THUS, AFTER TAKING ALL THE _THINGS_INTO__CONSIDERAT ION AND AFTER DUE YERIFICATION_OF AL ALL THE DOCUMENTS LD. COUNSEL OF THE ASSESSEE RAISED THE ADDITIONAL GROUND BEFORE THE LD. CIT ON THE BASIS O F FACTS. THUS, IT IS VERY CLEAR FROM THE ABOVE SEQUENCE OF E VENTS THAT THE ASSESSEE COULDN'T HAVE RAISED THE ADDITIONAL GROUNDS EARLIER AS IT WAS PROVED LATER THAT THERE WAS NO MANIPULATION IN THE SCRIP. THUS, LTCG EARNED BY ASSESSEE IS CORRECT AND LEGALLY EXEMPT U/S 10(38) S. NO PARTICULARS DATE 1 ITR FILING 31.07.2014 2 SURVEY U/S 133A 03.09.2015 3 REVISED ITR 23.10.2015 4 SEBI INTERIM ORDER 29.03.2015 5 ASSESSMENT ORDER 30.11.2016 6 APPEAL 23.12.2016 ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 7 7 PENALTY ORDER 17.03.2017 8 SEBI FINAL ORDER 21.09.2017 9 ADDITIONAL GROUNDS OF APPEAL 24.04.2018 2.1.3. THERE IS A SETTLED LAW AND VARIOUS JUDGMENTS WHICH EXPLAINS THAT A FURTHER CLAIM OF DEDUCTION U/S 10(38) CAN BE MADE BEFORE TH E WORTHY CIT(A) WHEN IT HAS NOT BEEN MADE AT THE ASSESSMENT STAGE OR WHILE FILING THE RETURN, IT IS WELL WITHIN THE RIGHT OF APPELLANT TO MAKE A CLAIM FOR D EDUCTION BEFORE ANY APPELLATE AUTHORITY FOR THE FIRST TIME. THIS ISSUE HAS BEEN DECIDED IN NUMBER OF JUDICIAL PRONOUNCEMENTS A) REFERENCE IS PLACED ON THE BINDING JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION REPO RTED IN 229 ITR 383(SC) UNDOUBTEDLY, THE TRIBUNAL WILL HAVE THE DISCRETION TO ALLOW OR NOT ALLOW A NEW GROUND TO BE RAISED. BUT WHERE THE TRIBUNAL IS ONLY REQUIRED TO CONSIDER A QUESTION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS, WE FAIL TO SEE WHY SUCH A Q UESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSID ER THAT QUESTION IN ORDER TO CORRECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. (PARA 7) B) REFERENCE IS ALSO PLACED ON HON'BLE HIGH COURT IN THE CASE OF BOMBAY COMMISSIONER OF INCOME TAX VS. PRUTHVI BROKERS & SH AREHOLDERS REPORTED IN [2012] 23 TAXMANN.COM 23 (BOM.), THE FINDINGS WE RE THAT IF THE GROUND SO RAISED COULD NOT HAVE BEEN RAISED AT THAT PARTICULA R STAGE WHEN THE RETURN WAS FILED OR WHEN THE ASSESSMENT ORDER WAS MADE.... ' OR 'THAT THE GROUND BECAME AVAILABLE ON ACCOUNT OF CHANGE OF CIRCUMSTAN CES OR LAW, ' DOES NOT CURTAIL THE AMBIT OF THE JURISDICTION OF THE APPELL ATE AUTHORITIES STIPULATED EARLIER. THEY DO NOT RESTRICT THE NEW/ADDITIONAL GR OUNDS THAT MAY BE TAKEN BY THE ASSESSEE BEFORE THE APPELLATE AUTHORITIES TO TH OSE THAT WERE NOT AVAILABLE WHEN THE RETURN WAS FILED OR EVEN WHEN THE ASSESSME NT ORDER WAS MADE. THE UNDERLINED OBSERVATIONS IN THE ABOVE PASSAGE DO NOT CURTAIL THE AMBIT OF THE JURISDICTION OF THE APPELLATE AUTHORITIES STIPU LATED EARLIER. THEY DO NOT RESTRICT THE NEW/ADDITIONAL GROUNDS THAT MAY BE TAK EN BY THE ASSESSEE BEFORE THE APPELLATE AUTHORITIES TO THOSE THAT WERE NOT AV AILABLE WHEN THE RETURN WAS ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 8 FILED OR EVEN WHEN THE ASSESSMENT ORDER WAS MADE. T HE SENTENCE READ AS A WHOLE ENTITLES AN ASSESSEE TO RAISE NEW GROUNDS/MAK E ADDITIONAL CLAIMS :- 'IF_THE AROUND SO RAISED COULD NOT HAVE BEEN RAISED AT THAT PARTICULAR STAGE WHEN THE RETURN WAS FILED OR WHEN THE ASSESSMENT ORDER WAS MADE....' IF 'THE AROUND BECAME AVAILABLE ON ACCOUNT OF CHANG E OF CIRCUMSTANCES OR LAW' THE APPELLATE AUTHORITIES, THEREFORE, HAVE JURISDIC TION TO DEAL NOT MERELY WITH ADDITIONAL GROUNDS, WHICH BECAME AVAILABLE ON ACCOU NT OF CHANGE OF CIRCUMSTANCES OR LAW, BUT WITH ADDITIONAL GROUNDS W HICH WERE AVAILABLE WHEN THE RETURN WAS FILED. THE FIRST PART VIZ. 'IF THE GROUND SO RAISED COULD NOT HAVE BEEN RAISED AT THAT PARTICULAR STAGE WHEN THE RETURN WAS FILED OR WHEN THE ASSESSMENT ORDER WAS MADE...' CLEARLY RELA TE TO CASES WHERE THE GROUND WAS AVAILABLE WHEN THE RETURN WAS FILED AND THE ASSESSMENT ORDER WAS MADE BUT 'COULD NOT HAVE BEEN RAISED' AT THAT S TAGE. THE WORDS ARE 'COULD NOT HAVE BEEN RAISED' AND NOT 'WERE NOT IN E XISTENCE'. GROUNDS WHICH WERE NOT IN EXISTENCE WHEN THE RETURN WAS FILED OR WHEN THE ASSESSMENT ORDER WAS MADE FALL WITHIN THE SECOND CATEGORY VIZ. WHERE 'THE GROUND BECAME AVAILABLE ON ACCOUNT OF CHANGE OF CIRCUMSTANCES OR LAW.'(PARA 13) C) REFERENCE IS ALSO PLACED ON HON'BLE SUPREME COURT IN THE CASE OF JUTE CORPN. OF INDIA LTD VS. COMMISSIONER OF INCOME-TAX REPORTED IN [1990] 53 TAXMANN 85 (SC), THE FINDINGS WERE THAT THE ABOVE OBSERVATIONS ARE SQUARELY APPLICABLE TO T HE INTERPRETATION OF SECTION 251(1)(A). THE DECLARATION OF LAW IS CLEAR THAT THE POWER OF THE AAC IS CO-TERMINOUS WITH THAT OF THE ITO, IF THAT BE SO, THERE APPEARS TO BE NO REASON AS TO WHY THE APPELLATE AUTHORITY CANNOT MODIFY THE ASSESSMENT ORDER ON AN ADDITIONAL GROUND EVEN IF NOT RAISED BEFORE THE ITO . NO EXCEPTION COULD BE TAKEN TO THIS VIEW AS THE ACT DOES NOT PLACE ANY RE STRICTION OR LIMITATION ON THE EXERCISE OF APPELLATE POWER. EVEN OTHERWISE AN APPELLATE AUTHORITY WHILE HEARING APPEAL AGAINST THE ORDER OF A SUBORDINATE A UTHORITY HAS ALL THE POWERS WHICH THE ORIGINAL AUTHORITY MAY HAVE IN DEC IDING THE QUESTION BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATION S, IF ANY, PRESCRIBED BY THE ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 9 STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTO RY PROVISION THE APPELLATE AUTHORITY IS VESTED WITH ALL THE PLENARY POWERS WHI CH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. THERE APPEARS TO BE NO GOOD REASON AND NONE WAS PLACED BEFORE US TO JUSTIFY CURTAILMENT OF THE POWER OF THE AAC IN ENTERTAINING AN ADDITIONAL GROUND RAISED BY THE ASS ESSEE IN SEEKING MODIFICATION OF THE ORDER OF ASSESSMENT PASSED BY T HE ITO.(PARA 5) D) SIMILAR POSITION IN LAW IS AFFIRMED IN FOLLOWING JUDGEMENTS CIT VS. MAHALAXMI SUGAR MILLS CO. [1986] 160 ITR 920 (SC) ATLAS CYCLE INDUSTRIES LTD. VS. CIT [1981] 5 TAXMAN 310 (P&H HC) DCM BENETTON INDIA LTD. US. CIT [2008] 173 T AXMAN 283 (DELHI HC) AMIT P. PANDYA VS. ACIT [2014] 50 TAXMANN. CO M 276 (MUMBAI TRIB.) CIT VS. ABHINITHA FOUNDATION (P) LTD. [2017] 83 TAXMANN.COM 100 (MADRAS HC) CIT VS. GANGAPPA CABLES LTD. REPORTED IN [1979 ] 116 ITR 778 (ANDHRA HC) 4. LD. DR ON THE OTHER HAND SUPPORTED THE ORDER OF TH E LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES. WE FIND MERIT IN T HE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE BEFORE LD. CIT(A) WE RE WRONGLY REFUSED TO BE ADMITTED BY HIM. THE ASSESSEE, WE FIN D, HAS SUITABLY DEMONSTRATED BEFORE US THE REASON FOR REVOKING THE SURRENDER ORIGINALLY MADE BEFORE THE ASSESSING OFFICER OF LON G TERM CAPITAL GAIN AS BEING ON ACCOUNT OF THE SCRIP TRANSACTED IN BY THE ASSESSEE HAVING SUBSEQUENTLY BEEN FOUND TO BE GENUINE BY THE ORDER OF THE SEBI. THE SURRENDER NO DOUBT WAS MADE ON ACCOUNT OF CERTAIN ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 10 EVIDENCES COLLECTED DURING SURVEY AT THE ASSESSEES PREMISES TO THE EFFECT THAT THE CLAIM OF LONG TERM CAPITAL GAINS ON THE SALES OF M/S KAILASH AUTO AS EXEMPT WAS BOGUS. NOW THE SUBSEQUEN T EVENT OF THE SEBI ORDER HOLDING THE TRANSACTION IN THE SAID SCRIP TO BE GENUINE WAS SUFFICIENT ENOUGH FOR THE ASSESSEE TO R AISE A LEGITIMATE GROUND BEFORE THE LD. CIT(A) FOR CLAIMING THE LONG TERM CAPITAL GAINS EARNED AS EXEMPT. AS RIGHTLY POINTED OUT BY T HE LD. COUNSEL FOR THE ASSESSEE IT IS SETTLED LAW THAT THE ASSESSE E IS ENTITLED TO MAKE A CLAIM BEFORE THE WORTHY CIT(A), FOR THE FIRST TIM E. THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF JUTE CORPORAT ION OF INDIA V. CIT (SUPRA) AND THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. PRUTHVI BROKERS & SHAREHOLDERS S ETTLES THE SAID ISSUE IN FAVOUR OF THE ASSESSEE. IN VIEW OF THE ABOVE, WE DIRECT THE LD. CIT(A) TO A DMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AND THEREA FTER ADJUDICATE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING DUE OP PORTUNITY OF HEARING TO THE ASSESSEE. GROUND NO. 1 AND 2 ARE ALL OWED. THE REMAINING GROUNDS RELATING TO THE MERITS OF THE ISSUE ARE RESTORED TO THE LD. CIT(A). THE APPEAL OF THE ASSESSEE IS THEREFORE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 1074&1075/CHD/2019 LALIT JAIN & JYOTI JAIN V. ACIT, CHANDIGARH 11 6. IN EFFECT, BOTH THE APPEALS OF THE ASSESSEES ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON .08.2021. SD/- SD/- (SATBEER SINGH GODARA) (ANNAPURN A GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 25.08.2021 GP/SR.PS &) *+,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' - / CIT 4. ' - ( )/ THE CIT(A) 5. +./ 0 , $0 , 123/4 / DR, ITAT, CHANDIGARH 6. /35# / GUARD FILE &) ' / BY ORDER, / ASSISTANT REGISTRAR