Ankush Jitendra Patni, Aurangabad V. Income-tax Officer, Ward - 2(3), Aurangabad

ITA 1850/PUN/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9223 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-09-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 04-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Keywords: Opportunity of being heard; Principle of natural justice; Earning of tax free income; Additional evidence; Capital Gains
• Section: 68

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.1850/PUN/2018 / ASSESSMENT YEAR : 2014-15 ANKUSH JITENDRA PATNI, B-11, SHIVSAKTI COLONY, JALNA ROAD, AURANGABAD-431001. PAN : BTWPP5841C . /APPELLANT VS. ITO, WARD-2(3), AURANGABAD. . / RESPONDENT / APPELLANT BY : SHRI RAJIV THAKKAR, AR / RESPONDENT BY : SHRI SANJEEV GHEI, DR / DATE OF HEARING : 26.09.2019 / DATE OF PRONOUNCEMENT: 01.10.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-2, AURANGABAD DATED 18.09.2018 FOR THE ASSESSMENT YEAR 2014-15. 2. THE EFFECTIVE GROUND RAISED BY THE ASSESSEE IS AS UNDER :- 1. THE LEARNED TAXING AUTHORITIES BELLOW AND ERRED IN CONSIDERING RS.2772750/- AS INCOME U/S 68 BEING TERM CAPITAL GAIN INSTEAD OF LONG TERM CAPITAL GAIN ON SALE OF EQUITY SHARES EXEMPT U/S 10(38) OF THE IT ACT CLAIMED BY THE APPELLANT CONSIDERING THE FACTS OF CASE AND PROVISIONS OF LAW, THE ADDITION OF RS.27,72,750/- MAY BE DELETED AND THE SAME BE TREATED AS EXEMPT INCOME. JUST AND PROPER RELIEF MAY BE GRANTED TO THE APPELLANT. 3. BEFORE ME, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FILED A LETTER DATED 26.09.2019 REQUESTING FOR REMANDING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. IN THIS REGARD, LD. COUNSEL BROUGHT MY ATTENTION TO THE FACT AND SUBMITTED THAT THIS IS A CASE WHERE THE ITA NO.1850/PUN/2018 - 2 - ASSESSEE EARNED CAPITAL GAINS AND CLAIMED EXEMPTION U/S 10(38) OF THE ACT. REFERRING TO THE SCRIP OF RADFORD GLOBAL LIMITED, WHICH IS SUBJECT MATTER OF EARNING CAPITAL GAINS, LD. COUNSEL SUBMITTED THAT THE SCRIP WAS CONSIDERED AS PENNY STOCK BY THE ASSESSING OFFICER AS THERE WAS AN ADVERSE DECISION OF THE SEBI RELATING TO THE SAID SCRIP AND THE BROKER. IN THIS REGARD, LD. AR BROUGHT MY ATTENTION TO THE SAID ORDER OF THE SEBI. FURTHER, LD. COUNSEL SUBMITTED THAT THE SAID ORDER OF THE SEBI NOW STANDS REVERSED WHICH MAKES THE TRANSACTIONS GENUINE AND THE ALLEGATION OF PENNY STOCK IS CLEARED. THE LD. COUNSEL ALSO MENTIONED THAT SUBSEQUENT REVERSAL ORDER OF THE SEBI WAS NOT AVAILABLE TO THE FILE OF THE LOWER AUTHORITIES. THEREFORE, LD. COUNSEL NOW REQUESTS FOR REMANDING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 4. THE RELEVANT CONTENTS OF THE SAID LETTER DATED 26.09.2019 FILED BY THE ASSESSEE IS EXTRACTED HEREUNDER :- . ADDITIONAL EVIDENCE: SECURITIES AND EXCHANGE BOARD OF INDIA (SEBI) CONDUCTED A PRELIMINARY EXAMINATION INTO THE DEALINGS IN THE SCRIPT OF RADFORD GLOBAL LIMITED (RADFORD) DURING THE PERIOD FROM JANUARY 28, 2013 TO MARCH 24, 2014. ACCORDINGLY, SEBI PASSED INTERIM EX-PARTE ORDER ON DECEMBER 19, 2014 AND NOVEMBER 9, 2015 RESTRICTING THE BUYING, SELLING OR DEALING IN RADFORD TILL FURTHER DIRECTIONS. HOWEVER, THE SEBI VIDE ORDER DATED SEPTEMBER 20, 2017 HAVING REFERENCE NUMBER SEBI/WTM/MPB/EFD-1-DRA-III/30/2017 HAS PASSED THE FINAL ORDER WHICH IS PLACED IN PAGE 219 TO 229 OF THE PAPER BOOK. ACCORDINGLY, IN PARA 9 OF PAGE NUMBER 225 AND PARA 10 OF PAGE NO.228 OF THE PAPER BOOK THE SEBI REVOKED THE ABOVE SAID INTERIM ORDER AND DECIDED THAT THERE IS NO MANIPULATION OF THE RECORD. IN VIEW OF THE ABOVE, WE REQUEST YOUR HONOUR MAY BE REMANDED BACK TO THE LOWER AUTHORITY. 5. ON HEARING BOTH THE SIDES ON THIS LIMITED PRAYER OF REMANDING THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, I AM OF ITA NO.1850/PUN/2018 - 3 - THE OPINION, THE SAID REQUEST OF THE ASSESSEE IS FAIR AND REASONABLE. ACCORDINGLY, WITHOUT GOING TO THE MERITS OF THE ISSUE AND KEEPING ALL THE ISSUE WERE OPEN, THE MATTER IS REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE AFTER CONSIDERING THE REVERSAL ORDER OF THE SEBI ALONG WITH OTHER ASPECTS/EVIDENCES. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER SET PRINCIPLE OF NATURAL JUSTICE. ACCORDINGLY, THE ALTERNATE PRAYER OF THE ASSESSEE IS ACCEPTED AND THE EFFECTIVE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 01 ST DAY OF OCTOBER, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 01 ST OCTOBER, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-2, AURANGABAD; 4. THE CCIT, NASHIK; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE