ITO, Ward-32(4), Kolkata, Kolkata V. Sri Viraj Kejriwal, Kolkata

ITA 1860/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1739 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 18-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIJUSH MUKHERJEE CIT DR RE
• Assessee Lawyers: MANISH TIWARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, A CCOUNTANT M EMBER ] I.T.A. NO. 1860 /KOL/201 7 ASSESSMENT YEAR: 20 14 - 15 INCOME TAX OFFICER WARD - 32(4), KOLKATA .. ... APPELLANT 10 - B, MIDDLETON ROW 2 ND FLOOR KOLKATA 700 071 SRI VIRAJ KEJRIWAL ........ .. RESPONDENT 2A, BANSIL HEIGHTS 3C, LOUDON STREET KOLKATA 700 017 [PAN : CJGPK 7739 Q ] APPEARANCES BY: SHRI MANISH TIWARI, ADVOCATE APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI PIJUSH MUKHERJEE , ADDL. CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 1 7 TH , 201 8 DATE OF PRONOUNCING THE ORDER : JANUARY 19 TH , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 9 , KOLKATA , (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 31 /0 5 /201 7 , FOR THE ASSESSMENT YEAR 20 14 - 15, ON THE FOLLOWING GROUNDS: - GROUND NO 1 . FOR THAT THE LD. CIT (A), ERRED IN DELETING THE ADDITION MADE BY THE A O WITHOUT APPRECIATING THE FACT UNEARTHED BY THE A O DURING THE COURSE ASSESSMENT PROCEEDINGS. GROUND NO.2. 'FOR THAT THE LD. CIT( A), WAS NOT JUSTIFIED BY DELETING THE ADDITION MADE BY THE A O OF RS. 37,78,819/ - U/S. 68 OF THE LT. ACT, ONLY RELYING UPON SOME JUDGEMENTS WHICH WERE NOT RELEVANT TO THE FACT AND SURROUNDING CIRCUMSTANCES OF THE CASE UNEARTHED BY TH E INVESTIGATION WING AND SEB I. 2 I.T.A. NO. 1860/KOL/2017 ASSESSMENT YEAR: 2014 - 15 SRI VIRAJ KEJRIWAL GROUND NO.3. 'FOR THAT THE LD. CIT (A) HAD FAILED TO OBSERVE THE MODUS OPERANDI OF THE TRANSACTION OF ASSESSEE TO GENERATE EXEMPTED LTCG, WHICH WAS MENTIONED BY THE A O IN HIS ORDER. GROUND NO.4. THAT THE APPELLANT CRAVES L EAVE TO SUBMIT ADDITIONAL GROUNDS OF APPEAL, IF ANY, AT OR BEFORE THE TIME OF HEARING AND/ OR ALTER, MODIFY, REFRAME ANY GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT A SIMILAR ORDER OF THE LD. CIT(A) IN THE CASE OF THE BROTHER OF THE ASSESSEE ON THE VERY SAME ISSUE WAS CHALLENGED BY THE REVENUE BEFORE THE ITAT SMC BENCH IN ITA NO. 1849/KOL/2017, ASSESSMENT YEAR 2014 - 15, ORDER DT. 20/12/2017, WHEREIN THE ORDER OF THE LD. CIT(A) WAS UPHELD AND THE APPEAL OF THE REVENUE WAS DISMISSED. HENCE HE SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE AND THE ORDER OF THE LD. CIT(A) HAS TO BE UPHELD. 2.1. THE LD. D/R, SUBMITTED THAT THE ISSUE HAS BEEN CONSIDERED BY A NUMBER OF DECISIONS OF THE HO NBLE HIGH COURTS AND THE TRIBUNALS AND HENCE THE BENCH SHOULD CONSIDER THESE DECISIONS AND NOT FOLLOW ITS ORDER UNDER IDENTICAL CIRCUMSTANCES IN THE CASE OF THE BROTHER OF THE ASSESSEE. HE CITED THE FOLLOWING CASE - LAW: - THE NAGPUR BENCH OF THE HONBLE BOM BAY HIGH COURT IN THE CASE OF SANJAY BIMALCHAND JAIN L/H SHANTIDEVI BIMALCHAND JAIN VS. THE PR. CIT, IN INCOME TAX APPEAL NO. 18/2017, JUDGEMENT DT. 10/04/201 7, CONFIRMING THE ORDER OF THE NAGPUR SMC BENCH OF THE ITAT, IN ITA NO. 61/NAG/2013, ORDER DT. 1 8/07/2016. JUDGEMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SOM NATH MAINI VS. COMMISSIONER OF INCOME TAX, (2008) 306 ITR 414 (P&H), WHEREIN THE ORDER OF THE ITAT CHANDIGARH BENCH, IN RESPECT OF THE SAME ASSESSEE, REPORTED IN (2006) 100 TTJ CHD 917, WAS CONFIRMED. ON A QUERY FROM THE BENCH, THE LD. D/R SUBMITTED THAT THE FACTS OF BOTH THE CASES ARE IDENTICAL. 2.1. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FACTS IN THE CASE OF SANJAY BIMALCHAND JAIN (SUPRA) AND IN THE CASE OF SOM NATH MAINI (SUPRA), AND THE FACTS IN THE CASE OF THE ASSESSEE ARE ENTIRELY DIFFERENT AND CANNOT BE APPLIED. HE 3 I.T.A. NO. 1860/KOL/2017 ASSESSMENT YEAR: 2014 - 15 SRI VIRAJ KEJRIWAL PRAYED THAT THE ORDER OF THE TRIBUNAL UNDER IDENTICAL CIRCUMSTANCES ON THE VERY SAME FACTS FOR THE VERY SAME ASSESSMENT YEAR SHOULD BE FOL LOWED. 3. AFTER HEARING RIVAL CONTENTIONS, KEEPING IN MIND THE JUDICIAL PROPRIETARY, I FOLLOW THE ORDER OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF KUMARI TANVI KEJRIWAL, IN ITA NO. 1849/KOL/2017, FOR THE VERY SAME ASSESSMENT YEAR 2014 - 15 AS A DMITTEDLY THE FACTS OF BOTH THE CASES ARE IDENTICAL AND UPHOLD THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND DISMISS THE APPEAL OF THE REVENUE. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 19 TH DAY OF JANUARY , 201 8 . SD/ - [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 19 . 01 .201 8 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. INCOME TAX OFFICER WARD - 32(4), KOLKATA 10 - B, MIDDLETON ROW 2 ND FLOOR KOLKATA 700 071 2. SRI VIRAJ KEJRIWAL 2A, BANSIL HEIGHTS 3C, LOUDON STREET KOLKATA 700 017 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES