Kaushalya Devi (Deseased), Panipat V. ITO, Panipat

ITA 2514/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82186 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-12-2014
• Assessment Year: 1998-1999
• Appeal Filed On: 29-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV DUDEJA
• Section: 54F

Judgement Text

ITA NO. 2514/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S.K. YADAV, J UDICIAL MEMBER I.T.A. N O. 2514 /DEL/20 13 A.Y. : 1998 - 99 KAUSHALYA DEVI (DECEASED), THROUGH LEGAL HEIR JAI PARKASH GULYANI, 8, LAJPAT NAGAR, BEHIND UCO BANK, PANIPAT (PAN: ABBPD3954E) VS. INCOME TAX OFFICER, WARD - I, PANIPAT (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. GURJEET SINGH, ADV. DEPARTMENT BY : SH. GAURAV DUDEJA, SR. D.R. DATE OF HEARING : 2 3 - 12 - 2014 DATE OF ORDER : 26 - 12 - 2014 ORDER PER S.K. YADAV : J M TH IS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. CIT(A), KARNAL ON A SOLITARY GROUND THAT LD. CIT(A) HAS ERRED IN NOT FOLLOWING THE DIRECTION OF ITAT IN THE ASSESSEE S APPEAL TO ALLOW OPPORTUNITY TO THE ASSESEE OF CROSS EXAMINATION OF THE WITNESS ON WHOSE STATEMENT THE PROCEEDINGS WERE INITIATED U/S. 147/148. TH EREFORE, THE ADDITIONS MADE BY THE AO U/S. 147/148 BE DELETED. 2. DURING THE COURSE OF HEARING OF APPEAL THE LD. COUNSEL OF THE ASSESSEE INVITED OUR ATTENTION THAT IN FACT THIS A THIRD ROUND OF LITIGATION. IN THE FIRST ROUND OF LITIGATION, THE MATTE R WAS RESTORED TO ITA NO. 2514/DEL/2013 2 CIT(A) FOR ADJUDICATION OF CERTAIN ISSUES THEREAFTER IN SECOND ROUND O F LITIGATION THE MATTER WAS RESTORED TO THE AO WITH THE DIRECTI ONS TO AFFORD THE OPPORTUNITY FOR CROSS EXAMINATION OF MR. SS MEHTA , WH OSE STATEMENT WAS RELIED ON BY THE AO TO REOPEN THE ASSESSMENT AND ON THE BASIS OF THE SAME ADDITION WAS MADE , V IDE ORDER DATED 17.2.2010 IN ITA NO. 2512/DEL/2008 . C OPY OF THE ORDER IS PLACED ON RECORD. DESPITE THE DIRECTIONS OF THE TRIBUNAL THE ASSESSEE WAS NOT AFFO RDED AN OPPORTUNITY TO CROSS EXAMINE MR. SS MEHTA IN ORDER TO ASCERTAIN THE VERACITY OF HIS STATEMENT. THESE FACTS WERE BROUGHT TO THE NOTICE OF THE LD. CIT(A), BUT HE WAS NOT CONVINCED WITH THE EXPLANATION OF THE ASSESSEE AND CONFIRMED THE ADDITIONS MA DE BY THE AO AFTER TREATING THE SALE OF SHARES AS BOGUS. IT WAS FURTHER CONTENDED THAT THE ASSESSEE HAS CLAIMED THE BENEFIT OF PROVISIONS OF SECTION 54F FOR THE CAPITAL GAIN RECEIVED ON SALE OF SHARES. SINCE THE AO HAS NOT MADE THE COMPLIANCE OF THE DIRECTIONS OF THE TRIBUNAL, THE ADDITIONS MADE ON THE BASIS OF THE STATEMENT OF SH. SS MEHTA CANNOT BE SUSTAINED. 3. LD. DR PLACED A RELIANCE O N THE ORDER OF THE LD. CIT(A). HE HOWEVER, SUBMITTED THAT ASSESSEE WAS GIVEN AN OPPORTUNITY TO PRODUCE SH. SS M EHTA FOR CROSS EXAMINATION. ONCE HE FAILED TO DO SO, THE AO HAS NO OPTION BUT TO MAKE THE ADDITIONS ON THE BASIS OF THE EARLIER STATEMENT RECORDED. THEREFORE, THE ORDER OF THE LOWER AUTHORITIES IS CONFIRMED. 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE LOWER AUTHORITIES, WE FIND THAT UNDISPUTEDLY THE TRIBUNAL VIDE ITS ORDER DATED 17.2.2010 CATEGORICALLY DIRECTED THE AO TO AFFORD AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE SH. SS MEHTA WHOSE STATEMENT WAS MAD E AS A SOLE GROUND FOR TREATING THE SALE TRANSACTION OF SHARES TO BE BOGUS. BUT DESPITE THE DIRECTIONS , OPPORTUNITY FOR CROSS EXAMINATION OF SH. SS MEHTA WAS NOT AFFORDED TO THE ASSESSEE. ITA NO. 2514/DEL/2013 3 THOUGH THE REVENUE HAS TAKEN A PLEA THAT SH. SS MEHTA WAS NOT AVAILABLE AT THE GIVEN ADDRES S , BUT IT IS THE WITNESS OF THE REVENUE AND THE ONUS IS SQUARELY UPON THE REVENUE TO ALLOW THE ASSESSE TO CROSS EXAMINE THE WITNESS. IN THE ABSENCE OF THE CROSS EXAMINATION OF SH. SS MEHTA , DESPITE THE DIRECTION S OF THE TRI BUNAL, THE STATEMENT OF SH. SS MEHTA CANNOT REL IED ON FOR TREATING THE SALE TRANSACTION TO BE BOGUS . E XCEPT THE STATEMENT OF SH. SS MEHTA , W E D O NOT FIND ANY OTHER EVIDENCE ON RECORD ON THE BASIS OF WHICH THE SALE TRANSACTION OF SHARES CAN BE HELD TO BE BOGUS. WE THEREFORE, FIND NO MERIT IN THE ADDITION MADE AFTER TREATING THE SALE TRANSACTION TO BE BOGUS ON THE BASIS OF THE STATEMENT OF SH. SS MEHTA. WE ACCORDINGLY, SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS GROUND AND DELET E THE ADDITIONS. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE S TANDS ALLOWED. ORDER PRONOUNCED IN THE O PEN C OURT ON 26 / 12 /20 1 4 . SD/ - SD/ - [ G.D. AGRAWAL ] [ S.K. YADAV ] VICE PRESIDENT JUDICIAL MEMBER DATE 26 / 12 /201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 2514/DEL/2013 4