Tarun Kanti China, Howrah V. I.T.O.,Ward-46(3), Kolkata

ITA 1635/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0676 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 08-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANUA
• Keywords: Assessment record; Capital Gains
• Section: 80G

Judgement Text

1 ITA NO. 1635/KOL/2019 TARUN KANTI CHINA, AY- 2015-1 6 , A(SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL A(SMC) BENCH : KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] ITA NO.1635/KOL/2019 ASSESSMENT YEAR: 2015-16 TARUN KANTI CHINA (PAN: ACPPC2337P) VS. INCOME-TAX OFFICER, WD-46(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 25.11.2019 DATE OF PRONOUNCEMENT 20.12.2019 FOR THE APPELLANT SHRI SUJOY SEN, ADVOCATE FOR THE RESPONDENT SHRI JAYANTA KHANUA, JCIT, SR. D R ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-14, KOLKATA DATED 26-03-2019 FOR THE ASSESSMENT YEAR 2015-16. 2. GROUND NO. 1 IS NOT PRESSED SO IT IS DISMISSED A S NOT PRESSED. 3. GROUND NO. 2 IS AGAINST THE ACTION OF THE LD. CI T(A) IN NOT ALLOWING CREDIT OF SECURITY TRANSACTION TAX (IN SHORT STT) PAID WHILE COMPUTING SHORT TERM CAPITAL GAINS (IN SHORT STCG) OF RS.81,265/-. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE DI D NOT DISCLOSE ANY INCOME FROM STCG. BASED ON THE INFORMATION GATHERED FROM THE BROKER M /S. VENUS SECURITIES LTD. THAT THE ASSESSEE HAS EARNED STCG OF RS.7,69,599/- THE AO CO NFRONTED THIS FACT WITH THE ASSESSEE. PURSUANT TO THE NOTICE THE ASSESSEE SUBMITTED THAT THE STCG CALCULATED BY AO IS NOT CORRECT AND SUBMITTED A COMPUTATION OF RS.3,05,533/-. HOWE VER, THAT WAS REJECTED BY THE AO AND HE MADE COMPUTATION OF STCG AT RS.6,21,349/- WHICH HAS BEEN ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE LD. CIT(A), WHO GAVE PARTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER: 4.3. I HAVE GONE THROUGH AND PERUSED THE RELEVANT ASSESSMENT RECORDS. THE AO IN ASSESSMENT ORDER HAD COMPUTED SHORT TERM CAPITAL GA IN FROM SHARE TRANSACTIONS OF THE 2 ITA NO. 1635/KOL/2019 TARUN KANTI CHINA, AY- 2015-1 6 APPELLANT AT RS.6,21,349/-. HOWEVER, THE BASIS OF THIS COMPUTATION HAS NOT BEEN GIVEN IN THE ASSESSMENT ORDER. DURING THE APPEAL PROCEEDINGS, TH E A/R OF THE APPELLANT HAD SUBMITTED DETAILS OF SHARE TRANSACTION AND ALSO COMPUTED SHOR T TERM CAPITAL GAIN ON SALE OF SHARES AS PER THE CALCULATION SUBMITTED BY THE APPELLANT. HE HAD EARNED SHORT TERM CAPITAL GAINS AMOUNTING TO RS.4,32,288/-. THIS COMPUTATION IS BASED ON DE TAILED CALCULATION OF TRADED SHARES SUBMITTED BY THE APPELLANT. THEREFORE, THE DISALLOW ANCE OF RS.6,21,349/- IS RESTRICTED TO RS.4,32,288/-. THIS GROUND OF APPEAL PARTLY SUCCEE DS AND IS THEREFORE PARTLY ALLOWED. 5. STILL NOT SATISFIED BY THE DECISION OF THE LD. C IT(A) (SUPRA), THE ASSESSEE IS BEFORE US AND HAS LIMITED GRIEVANCE THAT SINCE THE ASSESSEE H AD PAID STT ON THE GAIN (STCG), THE TAX RATE APPLICABLE IS ONLY @ 15% AND NOT 30%. IN ORDE R TO SUPPORT HIS CONTENTION, THE LD. AR DREW OUR ATTENTION TO THE FACT THAT THE LD. CIT(A) HAS MADE A FACTUAL FINDING THAT THE ASSESSEE HAD ACTUALLY EARNED STCG OF RS.4,32,288/- WHICH HAS NOW BECOME FINAL SINCE THE DEPARTMENT HAS NOT PREFERRED ANY CROSS-APPEAL OR CO AGAINST THIS FINDING OF LD. CIT(A). HAVING SAID SO, ACCORDING TO LD. AR SINCE THE ASSES SEE HAD MADE PAYMENT OF STT TO THE TUNE OF RS.81,265/- WHICH IS EVIDENT FROM PAGES 2 A ND 3 OF THE PAPER BOOK WHEREIN IT IS NOTED THAT TOTAL STT COLLECTED WAS (RS.43,344 + RS. 37,845 + RS.5 + RS.71) WHICH IS THE CERTIFICATE GIVEN BY THE BROKER M/S. GUINESS SECURI TIES LTD. FOR THE TRANSACTION IN QUESTION. SINCE THE STCG CLAIM OF RS.4,32,288/- HAS SUFFERED STT TO THE TUNE OF RS.81,265/- TAX APPLICABLE IS ONLY @ 15% AND THE AO IS DIRECTED TO RE-COMPUTE THE TAX ON STCG AT 15% OF RS.4,32,288/-. THIS GROUND OF APPEAL OF ASSESSEE I S ALLOWED AS DISCUSSED. 6. GROUND NO. 3 IS AGAINST THE ACTION OF THE LD. CI T(A) IN CONFIRMING THE DISALLOWANCE OF CLAIM FOR DEDUCTION U/S. 80G OF THE INCOME-TAX A CT, 1961(HEREINAFTER REFERRED TO AS THE ACT) IN RESPECT OF DONATION OF RS.16,666/-. 7. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA D GIVEN DONATION TO MANASHA TAMPLE, HARIDWAR AND SHRI JAGANNATH TEMPLE, PURI TO THE TUN E OF RS.5,555/- AND RS.11,111/- RESPECTIVELY (PAGE 7 AND 8 OF PAPER BOOK). HOWEVER , THE AO DID NOT ALLOW THE SECTION 80G DEDUCTION AND ACCORDING TO LD. AR, EVEN THOUGH THE LD. CIT(A) DIRECTED THE AO TO VERIFY THE DONATION CLAIMED BY ASSESSEE FOR DEDUCTION U/S. 80G OF THE ACT HAS NOT DONE SO BY GIVING ANY OPPORTUNITY TO THE ASSESSEE AND HAS DISA LLOWED THE SAME. 8. ON THIS ISSUE, MY ATTENTION WAS DRAWN TO PAGES 7 AND 8 OF PAPER BOOK WHICH SHOWS THAT THE ASSESSEE HAS GIVEN DONATION TO BOTH THE TE MPLES STATED ABOVE. SINCE THE LD. DR 3 ITA NO. 1635/KOL/2019 TARUN KANTI CHINA, AY- 2015-1 6 COULD NOT CONTROVERT THAT THESE TWO TEMPLES DO NOT ENJOY EXEMPTION APPROVED U/S. 80G OF THE ACT AS CLAIMED BY THE ASSESSEE AND AS EVIDENT F ROM PERUSAL OF PAGE 7&8 OF PB, I AM INCLINED TO ALLOW THE CLAIM OF THE ASSESSEE THAT DO NATIONS TO THESE TEMPLES ARE ELIGIBLE FOR DEDUCTION U/S. 80G OF THE ACT IN ACCORDANCE TO LAW. THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 20TH DECEM BER, 2019. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED :20TH DECEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI TARUN KANTI CHINA, 33/6/3, LAKS HMI NARAYN CHAKRABORTY LANE, HOWRAH-711101. 2 RESPONDENT ITO, WARD-46(3) , KOLKATA. 3. 4. 5. CIT(A)-14, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR