Smt. Smiti Golyan, New Delhi V. ITO, New Delhi

ITA 1276/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1542 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 03-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R MANJANI
• Keywords: Business income; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT DR. B. R. R. KUMAR, ACCOUNTANT MEMBER ITA NO. 1276/DEL/2017 :ASSTT. YEAR : 20 11-12 SMT. SMITI GOLYAN NULON HOUSE, ISHWAR NAGAR, MATHURA ROAD, 10 TH MILESTONE NEW DELHI-110065 VS INCOME TAX OFFICER, WARD- 13(3) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAPLG4650K ASSESSEE BY : SH. K. R. MANJANI, ADV. REVENUE BY : SH. H. K. CHOUDHARY, CIT DR 8 DATE OF HEARING: 28.01.2020 DATE OF PRONOUNCEMENT: 20.04.2020 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDERS OF THE LD. CIT(A)-42, NEW DELHI DATED 16 .01.2017. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: 1. THE LEARNED CIT(A) HAS ERRED ON FACTS AS WELL A S IN LAW IN HOLDING THAT THE PROFIT OF RS. 10,26,926/ - IS SHORT TERM CAPITAL GAIN, EVEN THOUGH THE AMOUNT OF RS. 9,67,645/- IS LONG TERM CAPITAL GAIN AND EXEMPT , WHICH IS CLEAR FROM THE DETAILS OF PURCHASE OF SHAR ES AND BALANCE SHEETS OF THE APPELLANT. 2. THE LEARNED ASSESSING OFFICER. AS WELL AS CIT(A) HAVE ERRED ON FACTS AS WELL AS IN LAW IN TAKING THE AMOUNT OF RS.2,32,000/- RECEIVED FROM M.P. GOLYAN (HUF) AS INCOME THOUGH CONFIRMATION AND PAN FOR WHICH WERE DULY FILED. ITA NO.1276/DEL/2017 SMITI GOLYAN 2 3. IT IS PRAYED THAT THE ADDITION OF RS. 9,67,645/- ON ACCOUNT OF LONG TERM CAPITAL GAIN FROM SALES OF SHARES AND RS. 2,32,000/- RECEIVED FROM M.P. GOLYAN(HUF) MAY BE KINDLY BE DELETED. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DIRECTOR IN M/S NULON INDIA LIMITED AND M/S NULON IMPEX LIMITED . DURING THE YEAR, THE ASSESSEE HAS RECEIVED INCOME FROM DIR ECTORSHIP OF THE COMPANIES AND INVESTMENTS IN SHARES AND MUTUAL FUNDS. THE ASSESSEE IS NOT ENGAGED IN ANY BUSINESS ACTIVITY DU RING THE YEAR AS PER HER OWN SUBMISSION. ASSESSEE DECLARED LONG T ERM AND SHORT TERM CAPITAL GAIN ON SALE OF SHARES WHEREAS T HE A.O. HAS CONSIDERED IT AS BUSINESS INCOME IN THE HANDS OF TH E ASSESSEE. 4. BEFORE THE LD. CIT (A), THE ASSESSEE HAS FAILED TO SUBMIT ANY EVIDENCE IN RESPECT OF HOLDING OF SHARES FOR A PERIOD OF MORE THAN 12 MONTHS. ACCORDINGLY, THE CLAIM OF THE ASSESSEE TO TREAT THE INCOME UNDER LONG TERM CAPITAL GAINS HA S BEEN REJECTED BY THE LD. CIT (A). 5. BEFORE US DURING THE ARGUMENT, THE LD. AR FILED THE DETAILS OF SHARE HOLDING AS ON 31.03.2009 AND 31.03.2010 AL ONG WITH THE COPY OF THE BALANCE SHEET AND PLEADED THAT THE CASE MAY BE REFERRED BACK TO THE FILE OF THE AO FOR VERIFICATIO N. 6. REGARDING THE LOAN OF RS.2,32,000/- OF THE ASSES SEE, THE ADDITION HAS BEEN CONFIRMED BY THE LD. CIT (A) OWIN G TO NON- PRODUCTION OF CONFIRMATIONS AND OTHER DETAILS. THE LD. AR PLEADED THAT GIVEN AN OPPORTUNITY, THE ENTIRE DETAI LS WOULD BE SUBMITTED. ITA NO.1276/DEL/2017 SMITI GOLYAN 3 7. THE LD. DR FAIRLY ACCEPTED FOR THE PROPOSAL. SIN CE, THE REVENUE HAS NOT GOT THE BENEFIT OF EXAMINING THE DE TAILS, WE HEREBY REMAND THE MATTER BACK TO THE FILE OF THE AO WITH DIRECTIONS TO THE ASSESSEE TO REPRESENT THE CASE BE FORE THE AO WITHOUT SEEKING ANY UNNECESSARY ADJOURNMENTS. WE BE LIEVE THE ASSESSEE WOULD NOT MISUSE THE TRUST REPOSED IN COMP LYING TO THE DIRECTIONS OF THE REVENUE AUTHORITIES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20/04/2020. SD/- SD/- (SUSHMA CHOWLA) (DR. B. R. R. KUMAR) VICE PRESIDENT ACCO UNTANT MEMBER DATED: 20/04/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR