SHIYAL VIMAL KUMAR, CHENNAI V. ITO NON CORPORATE WARD 6(4), CHENNAI

ITA 1492/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2692 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 13-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G.D. JAYANTHI ANGAYARKANNI
• Keywords: Set aside; Capital Gains

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI . . . , , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A.NO.1492/CHNY/2019 ( [ [ / ASSESSMENT YEAR: 2015-16) SHRI SHIYAL VIMAL KUMAR, NO.1/504, SOUTH AVENUE ROAD, KODUNGAIYUR, MUTHAMIZ NAGAR, CHENNAI 600 118. VS THE INCOME TAX OFFICER, NON-CORPORATE CIRCLE 6(4), CHENNAI. PAN: CTNPS 7792B ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI M. KARUNAKARAN, ADVOCATE / RESPONDENT BY : SMT. G.D. JAYANTHI ANGAYARKANNI, JCIT /DATE OF HEARING : 19.08.2019 /DATE OF PRONOUNCEMENT : 28.08.2019 / O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER: THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI IN ITA NO.299/CIT(A)-5/2017-18 DATED 26.11.2018 FOR THE ASSESSMENT YEAR 2015-16. 2. THE ASSESSEES APPEAL IS DELAYED BY 78 DAYS. THE ASSESSEE HAS FILED A CONDONATION PETITION STATING THAT THE APPEAL PAPERS WERE 2 ITA NO.1492/CHNY/2019 MISPLACED IN THE OFFICE OF THE AUDITOR DUE TO WHICH THE DELAY HAD OCCURRED. HENCE, IT WAS PLEADED THAT THE DELAY OF 78 DAYS IN FILING THE APPEAL MAY BE CONDONED. THE LD. DR STRONGLY OBJECTED TO THE SUBMISSION OF THE LD. AR. AFTER HEARING BOTH SIDES, THOUGH WE DO NOT APPRECIATE THE LAPSE ON THE PART OF THE ASSESSEE, HOWEVER, IN THE INTERESTS OF JUSTICE, WE HEREBY CONDONE THE DELAY OF 78 DAYS IN FILING THE APPEAL AND PROCEED TO HEAR THE CASE ON MERITS. 3. SHRI M. KARUNAKARAN, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE PURCHASED 25000 SHARES OF KAILASH AUTO FINANCE LTD. ON SALE OF SAID SHARES, ACCORDING TO THE LD. AR, THE ASSESSEE CLAIMED LONG TERM CAPITAL GAINS OF RS.10,11,579/-. THE ASSESSEE HAS ALSO CLAIMED EXEMPTION UNDER SECTION 10(38) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). HOWEVER, ACCORDING TO THE LD.AR, THE ASSESSING OFFICER ON THE BASIS OF INFORMATION SAID TO BE RECEIVED FROM THE DIRECTORATE OF INVESTIGATION AT KOLKATA, FOUND THAT KAILASH AUTO FINANCE LTD. IS A PENNY STOCK COMPANY, HENCE, THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION UNDER SECTION 10(38) OF THE ACT. PLACING RELIANCE ON THE ORDER OF THIS TRIBUNAL IN THE ASSESSEES CASE IN I.T.A. NO.2317/CHNY/2018 DATED 02.01.2019, THE LD.AR 3 ITA NO.1492/CHNY/2019 SUBMITTED THAT ON IDENTICAL CIRCUMSTANCE, THIS TRIBUNAL REMITTED BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER. PER CONTRA, THE LD.DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 4. WE HEARD THE RIVAL SUBMISSIONS. THE RELEVANT PORTION OF THE ORDER OF THE CO-ORDINATE BENCH IN THE ASSESSEES CASE, SUPRA, IS EXTRACTED AS UNDER:- 3. WE HEARD SHRI V.M. MAHIDAR, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. IT IS NOT IN DISPUTE THAT THE INVESTIGATION REPORT OF THE DIRECTORATE OF INVESTIGATION AT KOLKATA WAS RELIED UPON BY THE ASSESSING OFFICER AND THE CIT(APPEALS) TO DENY EXEMPTION UNDER SECTION 10(38) OF THE ACT. THE SAID INVESTIGATION REPORT WAS NOT FURNISHED TO THE ASSESSEE. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER AFTER FURNISHING ALL THE DOCUMENTS RELIED UPON BY THE ASSESSING OFFICER AND THE CIT(APPEALS). ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER IN THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE. THE ASSESSING OFFICER SHALL ALSO FURNISH ALL THE COPIES OF THE MATERIAL INCLUDING THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM THE DIRECTORATE OF INVESTIGATION, KOLKATA AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 4.1 SINCE THE CO-ORDINATE BENCH IN THE ASSESSEES CASE DECIDED SUPRA, RESPECTFULLY FOLLOWING IT, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE LD.AO FOR A FRESH CONSIDERATION, ON THE ABOVE LINES, IN ACCORDANCE WITH LAW. 4 ITA NO.1492/CHNY/2019 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON THE 28 TH AUGUST, 2019 AT CHENNAI . SD/- SD/- /CHENNAI, /DATED 28 TH AUGUST, 2019 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( ) /CIT(A) 4. /CIT 5. /DR 6. [ /GF ( . . . ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER