Giresh Jayanthilal Shah , Bangalore V. The Income Tax Officer Ward-5(2)(2), Bangalore

ITA 2648/BANG/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4078 (ITAT-BANGALORE)
• Duration Of Justice: 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 24-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURUPRASAD B L
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 143(3); 201; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH (SMC) : B ENGALURU SHRI JASON P BOAZ , ACCOUNTANT MEMBER I TA NO. 2 648 / BANG/2 0 1 8 (ASSESSMENT YEAR: 20 15 - 1 6 ) S HRI GIRISH JAYANTHILAL SHAH, NO.101, VENKATESHWARA MARKET, AVENUE ROAD, BANGALORE - 560 0 02 PAN: AHWPS5343R VS. APPELLANT INCOME - TAX OFFICER, WARD 5 (2)( 2 ), BENGALURU. RESPONDENT APPELLANT BY : NONE. RESPONDENT BY : SHRI GURUPRASAD B L, ADDL.CIT(DR) DATE OF HEARING : 09 /10 /2018 DATE OF PRONOUNCEMENT : 12 / 10 /2018 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE CIT(A) - 5 , BENGALURU, DATED 28.08.2018 FOR ASSESSMENT YEAR 2015 - 16. AS NONE WAS PRESENT FOR THE ASSESSEE WHEN THE CASE WAS CALLED FOR HEARING ON 9.10.2018, THIS APPEAL IS DISPOSED OFF WITH THE ASSISTANCE OF THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE AND THE MATERIAL ON RECORD. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS UNDER: - 2.1 THE ASSESSE E FILED H IS RETURN OF INCOME FOR ASSESSMENT YEAR 2015 - 16 ON 30.03.2016 DECL ARING INCOME OF RS. 16,87,840 / - FROM BUSINESS, HOUSE PROPERTY, OTHER SOURCES AND LONG TERM C APITAL G AINS (LTCG) OF RS. 29,10,441 / - ON SALE OF SHARES CLAIMED AS EXEMPT U/S 10(38) OF THE INCOME - TAX ACT,1961 (IN SHORT THE ACT ). THE CASE WAS TAKEN UP FOR S CRUTINY AND THE ASSESSMENT WAS CONCLUDED U/S 143(3) O F THE ACT VIDE ORDER DATED 2 9/12/ 2017, WHERE IN THE ASSESSEE S INCOME WAS DETERMINED AT RS. 4 2,51,530 / - IN VIEW OF THE ADDITION OF SALE PROCEEDS OF RS. 25,63,687 / - RECEIVED ON ACCOUNT OF 8,000 SHARES OF M/S. KAPPAC PHA RMA LTD. BEING HELD TO BE UNEXPLAINED CASH CREDITS U/S 68. ON APPEAL, THE CIT(A) - 7 , ITA NO. 2 648 /BANG/20 18 PAGE 2 BENGALURU, DISMISSED THE ASSESSEE S APPEAL VI DE THE IMPUGNED ORDER DATED 28/08 /2018. 3.1 AGGRIEVED BY THE ORDER OF THE CIT(A) - 5, BENGALURU, DATED 28/08 /2018 FOR A SSESSMENT YEAR 2015 - 16, THE ASSESSEE HAS PREFERRED THIS APPEAL WHEREIN IT HAS RAISED THE FOLLOWING GROUNDS: - 3.2 THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE PLACED STRONG RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW AND PRAYED FOR UPHOLDING THE SAME BY DISMISSING THE ASSESSEE'S APPEAL. ITA NO. 2 648 /BANG/20 18 PAGE 3 3.3 .1 I HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JUDICIAL PRECEDENTS ON THE ISSUE. I FIND THAT ON S IMILAR FACTS AND CIRCUMSTANCES AS IN THE CASE ON HAND, THE 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 RESTORED THE ISSUE TO THE FILE OF THE AO HAVING OBSERVED THAT THE ADDITIONS WERE MADE BASED ON REPORTS OF THE INVESTIGATION DIRECTORATE AT KOLKATA A ND STATEMENTS OF VARIOUS PERSONS WITHOUT CONFRONTING OR MAKING THEM AVAILABLE TO THE ASSESSEE F OR REBUTTAL. 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 O F 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. 3. 3.2 TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE ON HAND AND THE JUDICIAL DECISIONS REFERRED TO , I FIND THAT THE ISSUE FOR CONSIDERATION IS SQUARELY COVERED BY THE ORDERS OF THE BENGALURU ITAT IN THE CASES OF ARVIND KUMAR MOOLCHAND (SUPRA) AND PUKHRAJ HASMUKHLAL (SUPR A) . F OLLOWING THE AFORESAID ORDERS (SUPRA) , I SET ASIDE THE ORDERS OF THE AO AND RESTORE THE MATTER OF TREATMENT OF SALE PROCEEDS DECLARED ON SALE OF SHARES , CLAIM ED AS 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 REBUTTAL ALL DOCUMENTS ; INCLUDING STATEMENTS, INVESTIGATION REPORTS, ETC. RELIED UPON BY REVENUE FOR MA KING THE ADDITION AND PROVIDING ADEQUATE ITA NO. 2 648 /BANG/20 18 PAGE 4 OPPORTUNITY TO THE ASSESSEE FOR CROSS - EXAMINATION OF PERSONS WHOSE STATEMEN TS 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 12 TH OCTOBER , 2018 . SD/ - (JASON P BOAZ) ACCOUNTANT MEMBER PLACE : BENGALURU. D A T E D : 12 /10/ 201 8 *REDDY GP, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE