Shri.Mukesh Kumar Solanki, Bangalore V. Income Tax Officer, Bangalore

ITA 2168/BANG/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8426 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 09-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: H NAGIN KHINCHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH, BANGALORE BEFORE SHRI AK GARODIA, ACCOUNTANT MEMBER & ITA NO.2168/BA NG/2016 (ASST. YEARS 2008-09) SHRI MUKESH KUMAR SOLANKI, NO.37, M.M LANE, GANIGARPET, AVENUE ROAD, BENGALURU. . APPELLANT PAN NO. BCDPS2341Q. VS. THE INCOME-TAX OFFICER, WARD-3(2) (2), BANGALORE. RESPONDENT APPELLANT BY : SHRI H NAGIN KHINCHA, C.A RESPONDENT BY : SHRI A.R.V SREENIVASAN, JCIT DATE OF HEARING : 13-3-2017 DATE OF PRONOUNCEMENT : 17-3-2017 O R D E R PER SHRI AK GARODIA, ACCOUNTANT MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIRE CTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) 5, BANGALORE DATED 26/9/2016 FOR ASSESSMENT YEAR 2008 -09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : ITA NO.2168/B/16 2 ITA NO.2168/B/16 3 3. IT WAS SUBMITTED BY THE LD AR OF THE ASSESSEE TH AT IN GROUND NOS.1, 2 AND 3, THE ASSESSEE HAS DISPUTED THE VALID ITY OF REASSESSMENT ORDER PASSED BY THE AO WHICH HAS UPHELD BY THE LD C IT(A). IN THIS REGARD, HE HAS DRAWN OUR ATTENTION TO REASONS REC ORDED BY THE AO FOR REOPENING WHICH ARE AVAILABLE ON PAGE 10 OF THE PAP ER BOOK. HE POINTED OUT THAT AS PER THE REASONS RECORDED BY THE AO AS AVAILABLE AT PAGE 10 OF THE PAPER BOOK, THE MAIN BASIS STATED IS THE STATEMENT OF MR. MUKESH CHOKSHI DIRECTOR OF M/S MAHASAGAR SECURITIES LTD., IN WHICH, IT IS ALLEGED THAT HE HAS STATED THAT HIS BUSINESS ACTIVITIES IS TO PROVIDE ACCOMMODATIVE ENTRIES FOR LONG TERM AND SHORT TERM CAPITAL GAINS, PURCHASE AND SALES OF SHARES ETC. AND HE HAS ALSO PROVIDED LIST OF BENEFICIARIES WHICH INCLUDE THE NAME OF THE ASSESSE E ALSO. HE SUBMITTED THAT NEITHER THE COPY OF THE STATEMENT OF MR. MUKESH CHOKSHI NOR THE LIST OF BENEFICIARIES HAVE BEEN MADE AVAIL ABLE TO THE ASSESSEE. HE SUBMITTED THAT UNDER THESE FACTS, JUDGMENTS OF H ONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF CHANDRA DEVI KOT HARI IN WRIT PETITION NO.39370/2014 DATED 2 ND OF FEB, 2015 COPY AVAILABLE AT PAGES 63 TO 69 OF THE CASE LAW COMPILATION IS SQUARELY AP PLICABLE. HE PARTICULARLY DRAWN MY ATTENTION TO PARA NO.8 OF THI S JUDGMENT OF HONBLE KARNATAKA HIGH COURT, AS PER WHICH, IT WAS HELD THAT SINCE THE PETITIONER HAS BEEN DENIED AN OPPORTUNITY OF FAIR HEARING BY PROVIDING COPY OF THE STATEMENT AND RELATED DETAILS, THE MATT ER IS REQUIRED TO BE RECONSIDERED BY THE AO BY PROVIDING FAIR AND REASON ABLE OPPORTUNITY OF ITA NO.2168/B/16 4 HEARING TO THE ASSESSEE AFTER FURNISHING DETAILS/CO PY OF THE STATEMENT BASED ON WHICH THE IMPUGNED ASSESSMENT ORDER HAS BE EN PASSED. HE SUBMITTED THAT IN THE LIGHT OF THE FACTS OF THE PRE SENT CASE AND AS PER THIS JUDGMENT OF HONBLE KARNATAKA HIGH COURT, IN THE PR ESENT CASE ALSO, THE ENTIRE MATTER SHOULD BE RESTORED BACK TO THE FI LE OF THE AO FOR FRESH DECISION WITH SAME DIRECTIONS. 4. THE LD DR SUPPORTED THE ORDERS OF THE LOWER AUTH ORITIES. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FIRS T OF ALL, I REPRODUCE PARA NO.8 OF THE JUDGMENT OF HONBLE KARN ATAKA HIGH COURT RENDERED IN THE CASE OF M/S CHANDRA DEVI KOTHARI (S UPRA) AND THIS IS AS UNDER:- 6. FROM THE ABOVE PARA FROM THE JUDGMENT OF HONBLE KARNATAKA HIGH COURT, IT IS SEEN THAT MATTER WAS RESTORED BAC K TO THE FILE OF THE AO FOR FRESH DECISION AFTER PROVIDING COPY OF THE STAT EMENT OF SHRI MUKESH CHOKSI. AS PER THE FACTS NOTED BY THE HIGH COURT I N THE EARLIER PARAS OF JUDGMENT AND AS PER THE FACTS OF THE PRESENT CASE, I FIND THAT THE FACTS ARE SIMILAR AND LD DR OF THE REVENUE ALSO COULD NOT POI NT OUT ANY ITA NO.2168/B/16 5 DIFFERENCE IN FACTS AND HENCE, BY RESPECTFULLY FOLL OWING THIS JUDGMENT OF KARNATAKA HIGH COURT, I SET ASIDE THE ORDER OF LD C IT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO FOR FRESH DECISION WIT H THE SAME DIRECTIONS AS WERE GIVEN BY THE HONBLE KARNATAKA HIGH COURT I N THE CASE AS PER PARA NO.8 OF THE JUDGMENT REPRODUCED ABOVE. IN VIE W OF THIS DECISION, NO ADJUDICATION IS CALLED FOR AT THIS STAGE REGARDI NG THE MERIT OF THE ADDITION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH, 2017. SD/- (AK GARO DIA) ACCOUNTANT ME MBER VMS. BANGALORE DATED : 17/03/2017 COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER ASST. REGISTRAR, IT AT, BANGALORE.