The ACIT, Circle-14, Ahmedabad V. Shri Bharatkumar Jivanlal Patel, Ahmedabad

ITA 1919/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6785 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 10-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROBIN RAVAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Opportunity of being heard
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND N. S. SAINI, AM) ITA NO.1919/AHD/2009 A. Y.: 2006-07 THE A. C. I. T., CIRCLE-14, 6 TH FLOOR NATURE VIEW BUILDING, NEAR H. K. HOUSE, ASHRAM ROAD, AHMEDABAD VS SHRI BHARATKUMAR JIVANLAL PATEL, 5-6, MANICHANDRA SOCIETY, PART-I, NEAR SURDHARA CIRCLE, THALTEJ, AHMEDABAD PA NO. ACOPP 9183 H (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ROBIN RAVAL, SR. DR RESPONDENT BY SHRI S. N. DIVETIA, AR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XX I, AHMEDABAD DATED 24-03-2009 FOR ASSESSMENT YEAR 2006-07, CHALL ENGING THE ORDER OF THE LEARNED CIT(A) IN ALLOWING EXEMPTION U /S 10(38) OF THE IT ACT. 2. IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT COPIES OF THE BILLS WERE FILED TO PROVE THAT STT HAS BEEN PROPERL Y LEVIED BY THE BROKER ON THE SALES MADE BY THE ASSESSEE AND NO SIN GLE INSTANCE HAS BEEN GIVEN TO SHOW THAT THE BILLS WERE NOT GENU INE. IT WAS SUBMITTED THAT THE NAME OF M/S. INDOTECH CAPITAL MA RKET LTD. WAS CHANGED TO NETVISION WEB TECHNOLOGIES LTD. FROM SEP TEMBER, 2001. EXEMPTION U/S 10 (38) OF THE IT ACT CANNOT BE DENIE D ON MISTAKE ITA NO.1919/AHD/2009 ACIT CIR-14, AHMEDABAD VS SHRI BHARATKUMAR JIVANLAL PATEL 2 COMMITTED BY THE BROKER. IT WAS SUBMITTED THAT THE BILLS WERE ISSUED BY ALLIANCE INTERMEDIATERIES & NETWORK PVT. LTD. IN WHICH IT WAS RECORDED THAT STT HAS BEEN PAID. IT WAS FURTHER SUB MITTED THAT COMPLETE DETAILS WERE FILED TO SHOW THAT SECURITY T RANSACTIONS TAX HAS BEEN PAID. THE ASSESSEE ALSO FURNISHED CERTIFICATE IN FORM NO.10 DB IN SUPPORT OF THE PAYMENT OF STT ON THE TRANSACTION ENTERED IN A RECOGNIZED STOCK EXCHANGE ISSUED BY THE BROKER. THE LEARNED CIT(A) VERIFYING THE DETAILS SUBMITTED BY THE ASSESSEE ACC EPTED THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE IS ENTITLED FOR EXEM PTION U/S 10 (38) OF THE IT ACT. THE LEARNED CIT(A) ALSO VERIFIED THE PAYMENT OF SECURITY TRANSACTION TAX FROM THE CERTIFICATE IN FORM NO.10 DB AND ALLOWED THE CLAIM OF THE ASSESSEE. 3. THE LEARNED DR SUBMITTED THAT FORM NO.10 DB WAS NOT FILED BEFORE THE AO; THEREFORE, THIS FACT MAY BE VERIFIED BY THE AO BEFORE DELETING THE ADDITION. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY STATED THAT FORM NO.10 DB WAS NOT FILED BEFORE THE AO BUT IT WAS FILED BEFORE THE LEARNED CIT(A), THEREFORE, HE HAS NO OBJ ECTION IF THE AFORESAID FORM IS VERIFIED BY THE AO BEFORE ALLOWIN G THE CLAIM OF THE ASSESSEE. 4. ON CONSIDERATION OF THE ABOVE FACTS AND SUBMISSI ONS OF THE PARTIES, WE ARE OF THE VIEW THE MATTER REQUIRES REC ONSIDERATION AT THE LEVEL OF THE AO. THE ASSESSEE FILED COPY OF FORM NO .10 DB DATED 05-05-2006 BEFORE US IN SUPPORT OF THE CONTENTION W HICH WAS AVAILABLE WITH THE ASSESSEE AT THE TIME OF PASSING OF THE ASSESSMENT ORDER. THOUGH THIS CERTIFICATE SHOWS THAT PAYMENT O F STT IS MADE ON ITA NO.1919/AHD/2009 ACIT CIR-14, AHMEDABAD VS SHRI BHARATKUMAR JIVANLAL PATEL 3 TRANSACTION ENTERED IN A RECOGNIZED STOCK EXCHANGE BUT THE SAME WAS NOT VERIFIED BY THE AO. IT IS ONE OF THE ESSENT IAL CONDITIONS OF SECTION 10 (38) OF THE IT ACT BEFORE GRANTING EXEMP TION TO THE ASSESSEE THAT SUCH TRANSACTIONS ARE CHARGEABLE TO S TT UNDER THAT CHAPTER. SINCE FORM NO.10 DB WAS NOT BEFORE THE AO AND THERE WAS NO OBJECTION FROM BOTH THE SIDES IF THE SAME CERTIF ICATE IS VERIFIED BY THE AO, WE ARE OF THE VIEW INTEREST OF JUSTICE REQU IRES THAT THE AFORESAID CERTIFICATE MAY BE VERIFIED BY THE AO BEF ORE GRANTING RELIEF TO THE ASSESSEE. WE MAY ALSO NOTE THAT THE AO IN PA RA 6 OF THE ASSESSMENT ORDER HAS GIVEN SOME OBSERVATIONS AGAINS T THE ASSESSEE AFTER VERIFYING THE COPIES OF THE CONTRACT-CUM-BILL S THAT THERE WERE DIFFERENCES IN THE NAMES AND THE AO ALSO NOTED THAT THE TRANSACTIONS APPEAR TO HAVE BEEN CONDUCTED THROUGH OFF MARKET. T HOUGH THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SE FACTS HAVE BEEN VERIFIED BY THE LEARNED CIT(A) BUT, NO SUCH CL ARIFICATION WAS ALSO THERE BEFORE THE AO. IT WOULD BE, THEREFORE, APPROP RIATE THAT APART FROM VERIFYING THE FORM NO.10 DB, THE AO MAY ALSO V ERIFY THE FACTS ON THE BASIS OF THE EXPLANATIONS FILED BY THE ASSES SEE. THE ASSESSEE WOULD BE AT LIBERTY TO RAISE ANY PLEA BEFORE THE AO IN SUPPORT OF ITS CONTENTIONS FOR ENTITLEMENT OF EXEMPTION U/S 10(38) OF THE IT ACT. THE ASSESSEE MAY ALSO FURNISH ADEQUATE EVIDENCE BEFORE THE AO IN THIS REGARD. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DIRECT THE AO TO VERIFY FORM NO.10 DB AND PASS REASONED ORDER. THE ASSESSEE IS DIRECTED TO FILE COPY OF THE SAME F ORM NO.10 DB BEFORE THE AO. THE AO SHALL GIVE REASONABLE SUFFICI ENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.1919/AHD/2009 ACIT CIR-14, AHMEDABAD VS SHRI BHARATKUMAR JIVANLAL PATEL 4 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21-04-2011 SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 21-04-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD