Appeal details
Counselvise Citation
[2018] 123 COUNSELVISE.COM (IT) 0767 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 18 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
05-10-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2015-2016
Appeal Filed On
17-07-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH (SMC) : B ENGALURU SHRI JASON P BOAZ , ACCOUNTANT MEMBER I TA NO. 2212 / BANG/2 0 1 8 (ASSESSMENT YEAR: 20 15 - 1 6 ) SHRI NARENDRA KUMAR JAIN, NO.408, M/S.MEENA TRADING CO., RAJATHAMAHAL MAHAL COMPLEX, NAGARATHPET MAIN ROAD, BENGALURU - 560002. PAN: ABOPJ8693D VS. APPELLANT INCOME - TAX OFFICER, WARD 5(2)(3), BENGALURU. RESPONDENT APPELLANT BY : SHRI PRASHANTH, G, CA . RESPONDENT BY : SMT. SOUMYA ACHAR, ADDL.CIT(DR) DATE OF HEARING : 17 /09/2018 D ATE OF PRONOUNCEMENT : 05 / 10 /2018 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 5, BENGALURU, DATED 25 /04/2018 FOR ASSESSMENT YEAR 20 15 - 16. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS UNDER: - 2.1 THE A SSESSEE, AN INDIVIDUAL, FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2015 - 16 ON 28/8/2015 DECLARING INCOME OF RS.2,45,650/ - FROM BUSINESS AND CAPITAL GAINS OF RS.12 , 21,260/ - CLAIMED AS EXEMPT U/S 10(38) OF THE INCOME - TAX ACT,1961 (IN SHORT THE ACT ). T HE CASE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSMENT WAS CONCLUDED U/S 143(3) OF THE ACT VIDE ORDER DATED 29/12/2017, WHERE IN THE ASSESSEE S INCOME WAS DETERMINED AT RS.15,24,600/ - IN VIEW OF THE CAPITAL GAINS OF RS.12,21,260/ - DECLARED BY THE ASSESSEE, AR ISING ON ACCOUNT OF SALE OF 500 0 SHARES OF M/S. MAHAVEER ADVANCED PHARMA LTD., BEING HELD TO BE UNEXPLAINED CASH CREDITS U/S 68. ON APPEAL, THE CIT(A) - 5, BENGALURU, DISMISSED THE ASSESSEE S APPEAL VIDE THE IMPUGNED ORDER DATED 25/4/2018. ITA NO. 2212 /BANG/20 18 PAGE 2 OF 5 3.1 AGGRIE VED BY THE ORDER OF THE CIT(A) - 5, BENGALURU, DATED 25/4/2018 FOR ASSESSMENT YEAR 2015 - 16, THE ASSESSEE HAS PREFERRED THIS APPEAL WHEREIN IT HAS RAISED THE FOLLOWING GROUNDS: - ITA NO. 2212 /BANG/20 18 PAGE 3 OF 5 3.2 DURING THE COURSE OF HEARING, THE LD.AR FOR THE ASSESSEE SUBMITTED THAT ON SIMILAR FACTS AND CIRCUMSTANCES, THE MATTER FOR CONSIDERATION IS SQUARELY COVERED BY THE DECISION OF THE ITAT, KOLKATA BENCH IN ITS ORDER IN ITA N O.2394/KOL/2017 IN THE CASE OF ITA NO. 2212 /BANG/20 18 PAGE 4 OF 5 PRAKASH CHAND BUTORI A . IT IS SUBMITTED THAT IN THE CITED CASE (SUPRA) ALSO, THE ASSESSEE, AN INDIVIDUAL, FILED HIS RETURN OF INCOME CLAIMING INCOME ON SALE OF SHARES AS EXEMPT U/S 10(38) OF THE ACT. THE ASSESSING OFFICER (AO) TREATED THE RECEIPT OF SALE CONSIDERATION AS UNACCOUNTED INCOME AND MADE AN ADDITION U/S 68 OF THE ACT. ON APPEAL THE CIT(A) UPHELD THE AO S ORDER. HOWEVER, ON FURTHER APPEAL, THE ITAT, KOLKATA BENCH ALLOWED THE ASSESSEE S APPEAL OBSERVING THAT THE ADDITION WAS UNSUSTAINABLE SINCE THE AO MADE THE ADDITION IN A ROUTINE AND MECHANIZED MANNER: MERELY ON SUSPICIONS BASED ON REPORT OF ENQUIRIES MADE BY THE I NVESTIGATION DIRECTORATE OF DIT, KOLKATA, WITHOUT BRINGING THE SAME ON RECORD OR CONFRONTING THE ASSESSEE WITH OR SUPPLYING THE ASSESSEE COPIES OF THE DOCUMENTS RELIED UPON FOR MAKING THE ADDITION AND PR OVIDING HIM OPPORTUNITIES FOR HIS REBUTTAL. IT IS PRAYED THAT IN VIEW OF THE ABOVE , THE ORDERS OF THE AUTHORITIES BELOW BE SET ASIDE AND THE ASSESSEE S APPEAL BE ALLOWED. 3.3 PER CONTRA, THE LD. DR FOR REVENUE SUBMITTED THAT ON SIMILAR FACTS AND CIRCUMSTANCES AS IN THE CASE ON HAND, ISSUE FOR CONSIDERATION IS COVERED BY THE DECISIONS OF THE BENGALURU ITAT IN THE CASES OF ARVIND KUMAR MOOLCHAND IN ITA NO.509/BANG/2017 AND PUKHRAJ HASMUKHLAL IN ITA NO.1927/BANG/2017 WHEREIN THE TRIBUNAL HAS RESTORE D THE ISSUE TO THE FILE OF THE AO HAVING OBSERVED THAT THE ADDITIONS WERE MADE BASED ON REPORTS OF THE KOLKATA INVESTIGATION DIRECTORATE OF DEPARTMENT AND STATEMENTS OF VARIOUS PERSONS WITHOUT CONFRONTING OR MAKING THEM AVAILABLE TO THE ASSESSEE FOR REBUTT AL. IN THOSE CASES, THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO CONFRONT THE ASSESSEE WITH THE REPORTS/DOCUMENTS/ STATEMENTS PROPOSED TO BE USED AGAINST THE ASSESSEE, ALLOW REBUTTAL THEREOF AND CROSS EXAMINATION OF PARTIES ON WHOSE TESTIMONY IS PROPOSED TO BE RELIED UPON AND THE MATTER BE ADJUDICATED AFRESH AFTER AFFORDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO ALSO FILE DETAILS/SUBMISSIONS IN THIS REGARD. ITA NO. 2212 /BANG/20 18 PAGE 5 OF 5 3.4 IN REJOINDER, THE LD.AR FOR THE ASSESSEE DID NOT DISPUTE THE PROPOSITION PUT FORTH BY THE LD. DR FOR RESTORING THIS ISSUE TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION. 3.5 I HAVE HEARD BOTH PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD INCLUDING THE JUDICIAL DECISIONS CITED AND THE ORDERS OF THE AUTHORITIES BELOW. TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE JUDICIAL DECISIONS CITED, I FIND THAT THE IMPUGNED ISSUE IS SQUARELY COVERED BY THE ORDERS OF THE BENGALURU ITAT IN THE CASES OF ARVIN D KUMAR MOOLCHAND (SUPRA) AND PUKHRAJ HASMUKHLAL (SUPRA) . F OLLOWING THE AFORESAID ORDERS (SUPRA) I SET ASIDE THE ORDERS OF THE AO AND RESTORE THE MATTER OF TREATMENT OF PROFIT DECLARED ON SALE OF SHARES CLAIMING EXEMPT U/S 10(38) OF THE ACT TO THE FILE OF THE AO TO RE - ADJUDICATE THE ISSUE AFRESH; AFTER MAKING AVAILABLE TO THE ASSESSEE FOR HIS REBUTTAL ALL DOCUMENTS RELIED UPON BY REVENUE FOR MAKING THE ADDITIONS/DISALLOWANCES AND PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE FOR CROSS - EXAMINATION OF PERSON S WHOSE STATEMENTS ARE BEING RELIED UPON. IT IS ACCORDINGLY ORDERED. 4. IN THE RESULT, THE ASSESSEE S APPEAL FOR ASSESSMENT YEAR 2015 - 16 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH OCTOBER , 2018 SD/ - ( JASON P BO AZ ) ACCOUNTANT MEMBER PLACE : BENGALURU. D A T E D : 05 / 10 /201 8 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE
