Anil Garg, Ghaziabad V. ITO, Ward- 1(1), Ghaziabad

ITA 1989/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2188 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 22-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S RAWAT SENIOR
• Assessee Lawyers: S KRISHNAN
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A-SMC : NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.1988/DEL./2018 (ASSESSMENT YEAR : 2014-15) SMT. ANJU GARG, VS. ITO, WARD 1 (1), SC 122, SHASTRI NAGAR, GHAZIABAD. GHAZIABAD 201 002. (PAN : ACGPG4879H) ITA NO.1989/DEL./2018 (ASSESSMENT YEAR : 2014-15) SHRI ANIL GARG, VS. ITO, WARD 1 (1), IIIB-17, NEHRU NAGAR, GHAZIABAD. GHAZIABAD 201 001. (PAN : ACGPG4878G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. KRISHNAN, ADVOCATE REVENUE BY : SHRI D.S. RAWAT, SENIOR DR DATE OF HEARING : 30.08.2018 DATE OF ORDER : 31.08.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS, LAW AND IDENTICAL GROUNDS HAVE BEEN RAISED IN THE AFORESAID APPEALS, THE SAME ARE BEING DISPOSED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DI SCUSSION. ITA NOS.1988 & 1989/DEL./2018 2 2. THE APPELLANTS, SMT. ANJU GARG AND SHRI ANIL GAR G (HEREINAFTER REFERRED TO AS THE ASSESSEES) BY FILING THE PRESE NT APPEALS, SOUGHT TO SET ASIDE THE IMPUGNED ORDERS DATED 29.01.2018 & 02.01 .2018 RESPECTIVELY PASSED BY LD. CIT (APPEALS), GHAZIABAD QUA THE ASSE SSMENT YEAR 2014- 15 ON THE IDENTICAL GROUNDS, EXCEPT THE DIFFERENCE IN AMOUNT, INTER ALIA THAT :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) ERRED IN PASSING THE IMPUGNED OR DER WITHOUT PROVIDING ANY PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN TREATIN G THE ASSESSEE'S CLAIM FOR LONG TERM CAPITAL GAIN U/S.115 -BBE AS A CASH CREDIT, WITHOUT ANY MATERIAL OR BASIS FOR LO OKING ASKANCE AT THE SAID TRANSACTION OR THE COMPANY INVO LVED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN PASSING COMPLETELY NON-SPEAKING AND MECHANICAL ORDERS WITHO UT EVEN ADVERTING TO THE EVIDENCE AS LED OR THE MERITS OF THE SPECIFIC TRANSACTIONS, AND SIMPLY COPY-PASTING VAGU E AND IRRELEVANT REPORTS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN HOLDING THE ASSESSEE'S CLAIM OF LONG TERM CAPITAL GAIN TO BE BO GUS, DESPITE THE FACT THAT THE COMPANY IN QUESTION HAS N OT BEEN HELD TO BE NON-OPERATIONAL OR DEFUNCT BY ANY COMPET ENT AUTHORITY, NOR HAS ITS SCRIP BEEN FLAGGED BY SEBI. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) ERRED IN REFERRING TO PURCHASE P RICE OF SHARES OF M/S.CCL INTERNATIONAL LTD. ALLEGEDLY MADE BY THE ASSESSEE, WHILE THE ASSESSEE HAD IN FACT PURCHASED SHARES OF M/S.AAR INFRASTRUCTURE (P) LTD. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE DISALLOW ANCE IN A ITA NOS.1988 & 1989/DEL./2018 3 SUM OF RS.5, 12,845/- OF THE ASSESSEE'S CLAIM U/S 1 15-BBE OF THE ACT. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND IN BOTH THE AFORESAID APPEALS A RE : THE ASSESSEES ARE SALARIED EMPLOYEES WHO HAVE SHOWN INCOME FROM SALAR Y, HOUSE PROPERTY, FROM CAPITAL GAIN AND FROM OTHER SOURCES WITHOUT MAINTAINING BOOKS OF ACCOUNT. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE, AO PROCEEDED TO CONCLUDE THAT THE ASSESSEES HAVE FAILE D TO PROVE THE GENUINENESS OF THE ALLEGED LONG TERM CAPITAL GAIN C LAIMED TO HAVE BEEN EARNED DURING THE YEAR UNDER ASSESSMENT ON SALE OF SHARES OF M/S. CCL INTERNATIONAL LTD. U/S 10(38) OF THE INCOME-TAX ACT , 1961 (FOR SHORT THE ACT) AND THEREBY MADE AN ADDITION OF RS.5,12,945 A ND RS.5,12,862/- AND ASSESSED THE INCOME AT RS.10,76,670/- AND RS.14 ,90,120/- IN CASE OF ANJU GARG AND ANIL GARG RESPECTIVELY. 4. ASSESSEES CARRIED THE MATTER BY WAY OF APPEALS B EFORE THE LD. CIT (A) WHO HAS DISMISSED THE APPEALS. FEELING AGGRIEV ED, THE ASSESSEES HAVE COME UP BEFORE THE TRIBUNAL BY WAY OF FILING T HE PRESENT APPEALS. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UP ON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE. 6. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY THE LD. ARS FOR THE PARTIES TO THE PRESENT APPEALS THAT THESE CASES HAVE BEEN DISMISSED IN LIMINE BY THE LD. CIT (A) WITHOUT PROVIDING ADEQUAT E OPPORTUNITY OF ITA NOS.1988 & 1989/DEL./2018 4 BEING HEARD. PERUSAL OF PARA 4.1 OF THE IMPUGNED O RDER SHOWS THAT ASSESSEES BY PUTTING IN APPEARANCE MOVED ADJOURNMEN T APPLICATION FOR 27.09.2017 AND 12.10.2017 WHICH WAS ALLOWED AND THE REAFTER CASE WAS DECIDED EX-PARTE ON 29.01.2018 WITHOUT BRINGING ON RECORD IF THE ASSESSEES HAVE FURTHER MOVED ANY APPLICATION FOR AD JOURNMENT OR THEY HAVE BEEN PROVIDED FURTHER OPPORTUNITY BY GIVING NO TICE. WHEN THE ASSESSEES HAVE FILED TWO ADJOURNMENT APPLICATIONS A ND ABRUPTLY DISAPPEARED ON THE THIRD DATE, IT IS THE DUTY OF TH E QUASI-JUDICIAL AUTHORITY TO FURTHER ISSUE THE NOTICE TO PROVIDE ADEQUATE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEES AND TO DECIDE THE ISSUE IN C ONTROVERSY ONCE FOR ALL. IN THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VI EW THAT BOTH THE APPEALS ARE REQUIRED TO BE REMANDED BACK TO LD. CIT (A) TO BE DECIDED AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEAR D TO THE ASSESSEES. CONSEQUENTLY, BOTH THE APPEALS FILED BY THE ASSESSE ES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF AUGUST, 2018. SD/- SD/- (N.K. BILLAIYA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 31 ST DAY OF AUGUST, 2018 TS ITA NOS.1988 & 1989/DEL./2018 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.