Mohan Kumar Agarwal, CHENNAI V. ITO NCW 9(2), CHENNAI

ITA 1666/CHNY/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 6812 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 15-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R ANITA J
• Keywords: Share purchase agreement; Principle of natural justice; Earning of tax free income; Wrong claim; Set aside; Capital Gains

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI , , $ BEFORE SHRI GEORGE MATHAN , JUDICIAL MEMBER AND SHRI S.JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.3142/CHNY/2018 /ASSESSMENT YEAR: 2013-14 SMT.ANKITA , DOOR NO.1089,B-1201, SANKHESHWARA SERENITY, POONAMALLE HIGH ROAD,VEPERY, CHENNAI. VS. INCOME TAX OFFICER, NON CORPORATE WARD-10(1), ROOM NO.619,NEW BLOCK, CHENNAI 600 034. [ PAN: ALSPA 9931 D ] ( & /APPELLANT) ( '(& /RESPONDENT) & ) / APPELLANT BY : MR.I.DINESH,ADVOCATE, ' (& ) /RESPONDENT BY : MS.R.ANITA, J.C.I.T, D.R ./ ITA NO.1666/CHNY/2018 /ASSESSMENT YEAR:2014-15 SRI MOHAN KUMAR AGARWAL , NO.3,MENOD STREET, PURSAWALKKAM,CHENNAI 600 007. VS. INCOME TAX OFFICER, NON CORPORATE WARD-9(2), ROOM NO.216,WANAPARTHY BLOCK,CHENNAI 600 034. [ PAN: ACYPA 6971 A ] ( & /APPELLANT) ( '(& /RESPONDENT) & ) / APPELLANT BY : MR.D.ANAND,ADVOCATE '(& ) /RESPONDENT BY : MS.R.ANITA, J.C.I.T, D.R ) /DATE OF HEARING : 03.12.2019 ) /DATE OF PRONOUNCEMENT : 16.12.2019 ITA NOS.3142 & 1666 /CHNY/2018 :- 2 -: / O R D E R PER BENCH : THE ABOVE ASSESSEES HAVE FILED THE ABOVE APPEALS A GAINST THE SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPE ALS)-12, CHENNAI, IN ITA NO.74//CIT(A)-12/2017-18 DATED 31.7.2018 FO R THE ASSESSMENT YEAR 2013-14 AND OF COMMISSIONER OF INCOME TAX (APP EALS)-10, CHENNAI, IN ITA NO.143/16-17/CIT(A)-10 DATED 15.2.2 018 FOR THE ASSESSMENT YEAR 2014-15 RESPECTIVELY. SINCE COMMON ISSUES ARE INVOLVED IN THESE APPEALS, THEY ARE HEARD TOGETHER AND BEING DISPOSED OF TOGETHER, FOR CONVENIENCE SAKE. 2. THE ABOVE ASSESSEES PURCHASED SHARES OFF-MARKET AND CLAIMED LONG TERM CAPITAL GAINS BEING PROFIT ON SALE OF THO SE SHARES AND CLAIMED THEM AS EXEMPT INCOME U/S.10(38). BASED ON THE INFORMATION RECEIVED FROM THE DIRECTORATE OF INVESTIGATION, KOLKATA, THE CASES WERE REOPENED/ SELECTED FOR SCRUTINY, AS THE CASE MAY BE. THE AO C ONCERNED REQUIRED THE ASSESSEE TO EXPLAIN THE TRANSACTION AND FURNISH THE REQUIRED MATERIAL ETC. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSES SEES AND TAKING INTO ACCOUNT OF THE INFORMATION, AND THE MATERIAL RECEIV ED FROM THE DIRECTORATE OF INVESTIGATION, KOLKATA, THE AO OBSERVED THAT THE PURCHASE AND SALE OF ITA NOS.3142 & 1666 /CHNY/2018 :- 3 -: SHARES ARE PENNY STOCK. AFTER ANALYZING THESE RESPE CTIVE TRANSACTIONS OF ASSESSEES, THE AO CONCERNED, DENIED THE ASSESSEES CLAIM HOLDING THAT THE ASSESSEE CONCERNED WAS NOT ABLE TO PROVE THAT THE IMPUGNED TRANSACTIONS WAS GENUINE. IN VIEW OF THAT, THE ASSE SSING OFFICER CONCERNED ADDED THE ENTIRE SALE PROCEEDS OF SHARES RELATING TO RESPECTIVE ASSESSEES TO THE RETURNED INCOME. AGGRI EVED AGAINST THAT ORDER OF THE AO CONCERNED, THE ABOVE ASSESSEES FIL ED SEPARATE APPEAL BEFORE THE LD.CIT(A) CONCERNED. THE LD. CIT(A) CON CERNED DISMISSED THE APPEALS OF THE RESPECTIVE ASSESSEES. AGGRIEVED AGAINST THAT ORDER OF THE LD.CIT(A) CONCERNED, THE ABOVE ASSESSEES FILED THE SEPARATE APPEAL BEFORE THE TRIBUNAL. 3. IT WAS SUBMITTED BY LD. ARS THAT THE ISSUE RAISED I N THE ABOVE APPEALS WAS AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION MADE BY THE LD. ASSESSING OFFICER CONCERNED IN TREA TING THE PURCHASE AND SALE OF SHARES BY THE RESPECTIVE ASSESSEES, AS PENN Y STOCK TRANSACTIONS. THE LD.ARS SUBMITTED ON THE LINES OF GROUNDS OF APP EAL AND RELIED ON THE ORDER OF THIS TRIBUNAL IN THE CASE MR SUNIL KUMAR LALWANI VS ITO & OTHERS, NON CORPORATE CIRCLE 9(4), CHENNAI IN ITA NO 659 & 660/ CHNY/2018 DT. 09.01.2019. PER CONTRA, THE LD DR SUBMITTED THAT THE ABOVE ASSESSEES HAVE CLAIMED DEDUCTION U/S 10(38) B UT THEY HAVE NOT PROVED THE GENUINENESS, THEREFORE, REITERATING THE FACTS AND CIRCUMSTANCES ITA NOS.3142 & 1666 /CHNY/2018 :- 4 -: OF THE ABOVE ASSESSEES CASE FROM THE ORDERS OF THE LOWER AUTHORITIES, THE LD. DR SUPPORTED THOSE ORDERS AND INVITED OUR ATTEN TION TO THIS TRIBUNAL DECISION IN THE CASE OF SHRI HEERACHAND KANUNGA, FO R ASSESSMENT YEARS 2010-11 & 2011-12 IN ITA NOS. 2786 & 2787/MDS/2017 DATED 03.05.2018 AND PLEADED THAT THESE APPEALS BE DECIDE D ACCORDINGLY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF RES PECTIVE COUNSELS OF THE ASSESSEES AND DEPARTMENTAL REPRESENTATIVE. IT I S NOTICED THE ABOVE ASSESSEES HAVE NOT BEEN GIVEN A FAIR OPPORTUNITY TO PROVE THE GENUINENESS BUT THE ASSESSMENT HAS BEEN MADE PRIMARILY, BASED O N THE EVIDENCES COLLECTED BY THE REVENUE IN THE COURSE OF THE INVES TIGATION CONDUCTED BY THEM ON THE BROKERS / SHARE BROKING ENTITIES ETC. T HIS IS NOT PERMISSIBLE. THIS BEING SO, IN THE INTERESTS OF NATURAL JUSTICE, THE ISSUE OF THE GENUINENESS OF THE TRANSACTIONS REQUIRE RE-ADJUDICA TION. SINCE, THE RIGHT TO EXEMPTION MUST BE ESTABLISHED BY THOSE WHO SEEK IT, THE ONUS THEREFORE LIES ON THE ASSESSEE. IN ORDER TO CLAIM THE EXEMPT ION FROM PAYMENT OF INCOME TAX, THE ASSESSEE HAD TO PUT BEFORE THE INCO ME TAX AUTHORITIES PROPER MATERIALS WHICH WOULD ENABLE THEM TO COME TO A CONCLUSION. (35 ITR 312 (SC)).THUS, THE AO CONCERNED MUST KEEP IN MIND THAT THE ONUS OF PROVING THE EXEMPTION RESTS ON THE ASSESSEE. IF TH E AO DOES HAVE ANY EVIDENCE TO THE CONTRARY, IT IS TO BE PUT TO THE AB OVE ASSESSEES FOR HIS ITA NOS.3142 & 1666 /CHNY/2018 :- 5 -: REBUTTAL. THE INTERNAL COMMUNICATIONS OF THE REVENU E ARE EVIDENCES FOR DRAWING AN OPINION ON POSSIBLE WRONG CLAIMS BUT THE Y ARE NOT THE FINAL EVIDENCE. THE RELEVANT PORTION OF THE ORDER OF THIS TRIBUNAL IN THE CASE OF MR. SUNIL KUMAR LALWANI VS ITO & OTHERS, NON CORP ORATE CIRCLE 9(4), CHENNAI IN ITA NO 659 & 660/ CHNY/2018 DT. 09.01.2 019 IS EXTRACTED AS UNDER: 5. PER CONTRA, ID. A.R SUBMITTED THAT THE HON 'BLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS. M/S.LAXMAN INDUSTRIAL RESOUR CES LTD., IN ITA N'O.169/2017, C.M.APPL.7385/2017 VIDE ORDER DATED 1 4.03.2017 HAS HELD THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ID. A.R AL SO PLACED BEFORE US THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI ARAVIND NANDLAL. KHATRI VS. INCOME TAX OFFICER, IN ITA NO.2035/CHNY/2038 FOR ASSESSMENT YEAR 2011-12 VIDE ORDER DATED 03.12.2018 WHEREIN THE CO-ORDINATE BENCH OF THIS TR IBUNAL HAS HELD AS FOLLOWS:- '5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE A.O RECEIVED INFORMATION FROM INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA WITH REGARD TO INVESTMENT OF THE ASSESSEE I N PENNY STOCK COMPANY, NAMELY, M/S. CONCRETE CREDIT LIMITED. THE ASSESSEE ALSO ADMITTEDLY SOLD THE SAID SHARES AND CLAIMED EXEMPTI ON UNDER SECTION 10(38) OF THE ACT DURING THE YEAR WIDER CONSIDERATI ON. THEREFORE,, THE ASSESSING OFFICER HAS NOT DISPUTED THE SOURCE FOR I NVESTMENT. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF EXEMPTION ON THE GROUND THAT THE INVESTMENT WAS IN A PENNY STOCK COMPANY. FROM T HE MATERIAL AVAILABLE ON RECORD IT APPEARS THAT A COPY OF INFOR MATION SAID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTM ENT AT KOLKATA WAS NOT FURNISHED TO THE ASSESSEE. IT IS NOT BROUGHT ON RECORD THE RELATIONSHIP OF THE ASSESSEE WITH THE PROMOTERS OF M/S CONCRETE CREDIT LIMITED. IT IS ALSO NOT BROUGHT ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE COMPANY, NAMELY, M/S CONCRETE CREDIT LIMITED, ISSUE OF PUBLIC SHARES, INFLATION OF PRICE OF SHARES, ETC. I N THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE- EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSU E IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE A.O SHALL BR ING ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE COMPANY AND RELATI ONSHIP OF THE ASSESSEE WITH OTHER PROMOTERS, ROLE OF THE ASSESSEE IN INFLATING THE PRICE OF SHARES, ETC.. THE ASSESSING OFFICER SHALL ALSO F URNISH A COPY OF THE REPORT SAID TO BE RECEIVED FROM THE INVESTIGATION W ING OF THE DEPARTMENT ITA NOS.3142 & 1666 /CHNY/2018 :- 6 -: AT KOLKATA TO THE ASSESSEE AND THEREAFTER DECIDE TH E ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPO RTUNITY TO THE ASSESSEE.' 5. FURTHER, PERUSAL OF THE ABOVE ASSESSEES CASE S SHOW THAT THEY ARE SIMILAR TO THE FACTS IN THE CASE OF SHRI HEERACHAND KANUNGA, A DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBU NAL MADE FOR ASSESSMENT YEARS 2010-11 & 2011-12 IN ITA NOS. 2786 & 2787/MDS/2017 DATED 03.05.2018 . THE RELEVANT PORTI ONS FROM THAT ORDER IS EXTRACTED AS UNDER :- 9. A PERUSAL OF THE FACTS IN THE PRESENT CASE ADMI TTEDLY GIVEN ROOM FOR SUSPICION. HOWEVER, ASSESSMENTS ARE NOT TO BE DONE ON THE BASIS OF MERE SUSPICION. IT HAS TO BE SUPPORTED BY FACTS AND THE FACTS ARE UNFORTUNATELY NOT FORTHCOMING IN THE ASSESSMENT ORDER, IN THE ORDER O F THE LD.CIT(A) NOR FROM THE SIDE OF THE ASSESSEE. THE MAIN FOUNDATION OF T HE ASSESSMENT IN THE PRESENT CASE IS THE STATEMENT OF ONE SHRI ASHOK KUM AR KAYAN WHO HAS ADMITTED TO HAVE PROVIDED BOGUS LONG TERM CAPITAL G AINS TO HIS CLIENTS. THE SAID SHRI ASHOK KUMAR KAYAN ALSO ALLEGEDLY SEEM S TO HAVE PROVIDED THE ASSESSEES NAME AND PAN AS ONE OF THE BENEFICIA RIES. HOWEVER, THIS STATEMENT GIVEN BY SHRI ASHOK KUMAR KAYAN CANNOT BE THE FOUNDATION FOR THE PURPOSE OF ASSESSMENT IN SO FAR AS SHRI ASHOK K UMAR KAYAN HAS NOT BEEN PROVIDED TO THE ASSESSEE FOR CROSS-EXAMINATION . IN THE ABSENCE OF OPPORTUNITY OF CROSS-EXAMINATION, THE STATEMENT REM AINS MERE INFORMATION AND SUCH INFORMATION CANNOT BE FOUNDATION FOR ASSES SMENT. 10. ADMITTEDLY, THE ASSESSEE HAS CLAIMED TO HAVE PU RCHASED 15000 SHARES FROM M/S.BPL @ RS.20/- PER SHARE TOTALING IN TO RS.3,00,000/-. THE ASSESSEE CLAIMS TO HAVE PAID CASH FOR THE PURCHASE OF THESE SHARES. THE PRIMARY QUESTION WOULD BE AS TO WHERE THE PURCHASE WAS DONE? IF THE PURCHASE HAS BEEN DONE IN KOLKATA, HOW WAS THE CASH TRANSFERRED? WHEN DID THE ASSESSEE RECEIVED THE SHARE CERTIFICATES AN D THE SHARE TRANSFER FORMS? HOW DID THE ASSESSEE OVERCOME THE PROVISION S OF SEC.40A(3)? WAS THERE ADEQUATE CASH AVAILABILITY IN THE BOOKS O F THE ASSESSEE ON 24.04.2008? DID THE ASSESSEE TRAVELLED TO KOLKATA? HOW WAS THE TRANSACTION DONE? WHO APPLIED FOR THE DEMATING OF THE SHARES? WHEN WERE THEY DEMATED? WHEN WERE THE SHARES TRANSFERRE D TO THE DEMAT ACCOUNT OF THE ASSESSEE? TO WHOM WERE THE SHARES SO LD DURING THE ASSESSMENT YEARS 2010-11 & 2011-12? WHEN WERE THE CHEQUES RECEIVED BY THE ASSESSEE? FROM WHOM DID THE ASSESSEE RECEIV ED THE CHEQUES? ITA NOS.3142 & 1666 /CHNY/2018 :- 7 -: WAS THERE ANY CASH DEPOSIT IMMEDIATELY PRIOR TO THE ISSUING OF THE CHEQUE FROM THE BANK ACCOUNT OF THE PURCHASER OF THE SHARE S OF THE ASSESSEE? 11. A PERUSAL OF THE ASSESSMENT ORDER AT PARA NO.7. 1 SHOWS THAT IN THE WRITTEN SUBMISSIONS, THE ASSESSEE STATES THAT HE HA S PURCHASED 15000 SHARES OF M/S.BPL FROM M/S.ABPL, KOLKATA. HOWEVER, IN PARA NO.8.3, IT IS MENTIONED THAT THE ASSESSEE IN GOOD FAITH HAS PURCH ASED THE SHARES OF M/S.BPL FROM A SUB-BROKER IN HIS FRIENDS CIRCLE. W HAT IS THE TRUE NATURE OF THE TRANSACTION? FROM WHOM DID THE ASSESSEE ACTUALL Y PURCHASE THE SHARES? DID THE ASSESSEE TAKE POSSESSION OF THE SH ARES IN ITS PHYSICAL FORM? IN PARA NO.8.1 OF THE ASSESSMENT ORDER, IT I S MENTIONED THAT THE ASSESSEE IS AN INVESTOR AND HAS BEEN REGULARLY TRAD ING IN SHARES. IF THIS IS SO, DOES THE DEMAT ACCOUNT SHOW SUCH TRANSACTIONS B EING DONE BY THE ASSESSEE OR IS THIS THE ONLY ONE OF TRANSACTION. T HUS, CLEARLY THE FACTS REQUIRED FOR ADJUDICATING THE APPEALS ARE NOT FORTH COMING. THERE IS NO EVIDENCE WHATSOEVER TO SHOW THAT THE ASSESSEE HAS H ELD THE SHARES FOR MORE THAN 12 MONTHS. THIS IS BECAUSE ASSUMING THAT THE DEMAT HAS BEEN DONE AND THE SHARES OF M/S.BPL HAS COME INTO THE AS SESSEES DEMAT ACCOUNT AND HAS IMMEDIATELY FLOWN OUT. THEN THE FA CTUM OF THE POSSESSION OF THE SHARES FOR MORE THAN 12 MONTHS HAVE TO BE PR OVED BY THE ASSESSEE. THIS IS ALSO NOT FORTHCOMING. IN REPLY TO A SPECIF IC QUERY, AS THE DATE OF THE DEMAT OF SHARES, IT WAS SUBMITTED BY THE LD.AR THAT THE DEMAT WAS DONE ON VARIOUS DATES. THEN THE QUESTION RISES AS TO WHY T HERE IS SO MUCH OF DIFFERENCE IN THE DATES OF DEMATING WHEN 15000 SHAR ES HAVE BEEN PURCHASED TOGETHER ON 24.04.2008. NO DETAILS IN RE SPECT OF M/S.BPL COMPANY IS KNOWN, WHAT IS THE PRODUCT OF THE COMPAN Y WHICH HAD LEAD TO THE SHARE VALUE OF THE COMPANY TO GO UP FROM RS.20/ - TO RS.352/- IN A PERIOD OF TWO YEARS. THIS WOULD CLEARLY BE A CASE WHERE TH E SHARE VALUE OF THE COMPANY WAS HITTING THE CIRCUIT BREAKER OF THE STOC K EXCHANGE ON A DAILY BASIS AND OBVIOUSLY IT WOULD HAVE DRAWN ATTENTION. THIS BEING SO, AS THE FACTS ARE NOT COMING OUT OF THE ASSESSMENT ORDER NO R THE ORDER OF THE LD.CIT(A) NOR FROM THE SIDE OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ISSUES IN THIS APPEAL MUST BE RESTORED TO THE FILE OF THE AO FOR RE- ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE O PPORTUNITY TO SUBSTANTIATE ITS CASE AND WE DO SO. 12. THE STATEMENT RECORDED BY THE REVENUE FROM SHRI ASHOK KUMAR KAYAN CANNOT BE USED AS AN EVIDENCE AGAINST THE ASS ESSEE IN SO FAR AS THE STATEMENT HAS NOT BEEN GIVEN TO THE ASSESSEE NOR HA S SHRI ASHOK KUMAR KAYAN BEEN PROVIDED TO THE ASSESSEE FOR CROSS-EXAMI NATION. HOWEVER, THE ASSESSEE SHALL PROVE THE TRANSACTION OF THE LONG TE RM CAPITAL GAINS IN RESPECT OF WHICH THE ASSESSEE HAS CLAIMED THE EXEMP TION U/S.10(38) BY PROVIDING ALL SUCH EVIDENCES AS REQUIRED BY THE AO TO SUBSTANTIATE THE CLAIM AS ALSO BY PRODUCING THE PERSONS THROUGH WHOM THE A SSESSEE HAS UNDERTAKEN THE TRANSACTION OF THE PURCHASE AND SALE OF THE SHARES WHICH WOULD INCLUDE THE SUB-BROKER, FRIEND AND THE BROKER THROUGH WHOM THE TRANSACTION HAS BEEN DONE, BEFORE THE AO FOR EXAMIN ATION. ITA NOS.3142 & 1666 /CHNY/2018 :- 8 -: 13. IN THE RESULT, THE APPEALS FILED BY THE ASSESS EE IN ITA NOS.2786 & 2787/CHNY/2017 ARE PARTLY ALLOWED FOR STATISTICAL P URPOSES. 6. RESPECTFULLY FOLLOWING THE ABOVE ORDERS, ON THE FACTS AND CIRCUMSTANCES OF THESE CASES, WE DEEM IT FIT TO REM IT THE ISSUE OF EXEMPTION IN THESE APPEALS BACK TO THE FILE OF THE ASSESSING OFFICER CONCERNED FOR RE-ADJUDICATION ON THE LINES INDICATE D ABOVE. THEREFORE, THE ASSESSING OFFICER CONCERNED SHALL REQUIRE THE A SSESSEE; TO ESTABLISH WHO, WITH WHOM, HOW AND IN WHAT CIRCUMSTANCES THE I MPUGNED TRANSACTIONS WERE CARRIED OUT ETC., TO PROVE THAT T HE IMPUGNED TRANSACTIONS ARE ACTUAL, GENUINE ETC. THE ABOVE ASS ESSEES SHALL COMPLY WITH THE RESPECTIVE ASSESSING OFFICERS REQUIREMENT S AS PER LAW. THE ASSESSING OFFICER CONCERNED IS ALSO FREE TO CONDUCT APPROPRIATE ENQUIRY AS DEEMED FIT. THE ASSESSING OFFICER CONCERNED SHAL L ALSO BRING ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE CO MPANY AND RELATIONSHIP OF THE ASSESSEE WITH OTHER PROMOTERS, ROLE OF THE ASSESSEE IN INFLATING THE PRICE OF SHARES, ETC. AS HAD BEEN HELD BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF KANHAIYALAL & SONS (HUF) V. ITO IN I.T.A. NO.1849/CHNY/2018, DATED 06.02.2019 REFERRED TO SUPRA. THE ASSESSING OFFICER CONCERNED SHALL FURNISH ADEQUATE OPPORTUNITY TO THE ABOVE ASSESSEES ON THE MATERIAL ETC TO BE USED AGAI NST THE ABOVE ASSESSEES AND ON APPRECIATION OF ALL THE ASPECTS, T HE ASSESSING OFFICER CONCERNED WOULD DECIDE THE MATTER IN ACCORDANCE WIT H LAW. THUS, THE ITA NOS.3142 & 1666 /CHNY/2018 :- 9 -: ISSUE OF EXEMPTION CLAIM U/S. 10(38) IS RESTORED TO THE FILE OF THE ASSESSING OFFICER CONCERNED FOR RE-ADJUDICATION ON THE LINES INDICATED ABOVE. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEES IN THE CASE OF SMT.ANKITA FOR ASSESSMENT YEAR 2013-14, AND SRI MO HAN KUMAR AGARWAL FOR THE ASSESSMENT YEAR 2014-15 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 16 TH DECEMBER, 2019 IN CHENNAI. SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER /CHENNAI, 0 /DATED: 16 TH DECEMBER, 2019. K S SUNDARAM ) ' 12 32 /COPY TO: 1. & /APPELLANT 4. 4 /CIT 2. '(& /RESPONDENT 5. 2 ' /DR 3. 4 ( ) /CIT(A) 6. /GF