NILESH N SHAH, MUMBAI V. ITO 17(2)(4), MUMBAI

ITA 2145/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9948 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 27-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: KUNAL PANDEY
• Keywords: Earning of tax free income
• Section: 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.2145/M/2017 ASSESSMENT YEAR: 2011-12 MR. NILESH N SHAH, 159, SWASTIK RUBBER, NAGDEVI STREET, MUMBAI-400 003 PAN: ANEPS0121R VS. ITO - 17(2)(4), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI KUNAL PANDEY, A.R. REVENUE BY : SMT. N. HEMALATHA, D.R. DATE OF HEARING : 07.08.2017 DATE OF PRONOUNCEMENT : 01.09.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 05.01.2017 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2011-12. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE FILED RETURN OF INCOME ON 27.07.2011 DECLARING TOTAL LOSS AT RS.11,32,996/-. HOWEVER, THE ASSESSING OFFICER (HE REINAFTER REFERRED TO AS THE AO) FOUND THAT IN THE PROFIT AND LOSS A/C. LTCG OF RS,11,05,521.42 WAS SHOWN BUT THE COMPUTATION OF TOTAL INCOME REFLECTED LTCG WAS OF RS.4.70 LAKHS ONLY. IT WAS ALSO NOTICED THAT EXCESS LTCG O F RS.20,29,574/- WAS NOT REFLECTED IN THE COMPUTATION OF TOTAL INCOME. THUS THE AO WAS SATISFIED THAT INCOME CHARGEABLE TO TAX FOR A.Y. 2011-12 TO THE EX TENT OF RS.6,35,521/- AND EXCESS EXEMPT INCOME OF RS.20,29,574/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147. ACCORDINGLY, THE ASSESSMENT WAS REOPENED BY ISSUE OF ITA NO.2145/M/2017 MR. NILESH N SHAH 2 NOTICE U/S 148 AFTER RECORDING THE REASONS. THE AO COMPLETED THE ASSESSMENT U/S.143(3) R.W.S. 147 OF THE ACT ASSESSING THE TOTA L INCOME AT RS.36,53,365/-. 3. DURING THE COURSE OF ASSESSMENT PROCEEDING, ASSE SSEE HAS CLAIMED LONG TERM CAPITAL GAIN OF RS.20,29,574/- REFLECTING IN P ROFIT & LOSS ACCOUNT AS EXEMPT. IN THIS RESPECT, ASSESSEE HAS STATED THAT LONG TERM CAPITAL GAIN ON SALE OF SHARES HAS BEEN PAID OFF. NO DOCUMENTARY EVIDEN CE AS TO THE LONG TERM CAPITAL GAIN BEING EXEMPT AND AS TO PAYMENT OF STT ON THE SAID LONG TERM CAPITAL GAIN HAS BEEN FURNISHED BY THE ASSESSEE. I N VIEW OF THIS, THE CLAIM OF EXEMPTION OF RS.20,29,574/- WAS DISALLOWED. 4. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT(A), BASED ON THE SAME REASON TAKEN BY THE AO, HAS DISMISSED THE APPEAL OF THE ASSESSEE. 5. DURING THE COURSE OF HEARING, THE LD. A.R. SUBMI TTED THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE IN RESPECT OF LONG TE RM CAPITAL GAIN BEFORE THE AO AND THE LD. CIT(A). SIMILARLY, ASSESSEE HAS NOT PRODUCED ANY EVIDENCE IN RESPECT OF LONG TERM CAPITAL GAIN OF RS.6,35,521/-. HE WANTED TO GO BACK TO AO ON THE REASON THAT ASSESSEE WANTED TO PRODUCE TH E EVIDENCE. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIRPLAY, I RESTORE THI S MATTER BACK TO THE FILE OF AO AND THE AO IS DIRECTED TO DECIDE THE MATTER ACCORDI NGLY. 6. LD. D.R. HAS NO OBJECTION TO IT. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 01.09.2017. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED: 01.09.2017. * KISHORE, SR. P.S. ITA NO.2145/M/2017 MR. NILESH N SHAH 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.