Urvi B Mehta, Bengaluru V. Income Tax Officer, Ward-8(2), Bengaluru

ITA 2761/BANG/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4611 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 19-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MANOJ KUMAR G
• Assessee Lawyers: SUNIL D SURANA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. INTURI RAMA RAO , ACCOUNTANT MEMBER ITA NO. 2761 /BANG/201 7 ASSESSMENT YEAR : 20 09 - 1 0 SMT. KUMARI URAVI B. MEHTA, NO. 579, CHANDAN 1 ST CROSS, 2 ND BLOCK, R T. NAGAR, BENGALURU 560 032. PAN : A KJPM 3037 G VS. THE INCOME-TAX OFFICER, WARD 8(2), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. SUNIL D. SURANA, CA REVENUE BY : DR. MANOJ KUMAR G , ADDL. CIT DATE OF HEARING : 0 5 . 0 6 .201 8 DATE OF PRONOUNCEMENT : 15 . 0 6 .201 8 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), INTER ALIA , ON FOLLOWING GROUNDS: 1. THE LEARNED CIT (APPEALS), BENGALURU-6 HAS ERRED IN PASSING THE ORDER IN THE MANNER PASSED BY HER. THE IMPUGNED ORDER BEING BAD IN LAW, VOID AB INITIO AND IS REQUIRED TO BE QUASHED. 2. IN ANY CASE, THE CONDITIONS PRECEDENT FOR THE ISSUE OF NOTICE U/S. 148 OF THE ACT BEING SENT, THE RE-OPENING BECOMES BAD IN LAW AND CONSEQUENTLY THE ORDER AFFIRMED BEING ALSO BAD IN LAW IS REQUIRED TO BE QUASHED. 3. IN ANY CASE AND WITHOUT PREJUDICE THE ORDER HAVING BEEN PASSED IN TOTAL DISREGARD OF AND IN VIOLATION OF THE PRINCIPLES OF THE NATURAL JUSTICE, MAKES THE ORDER BAD IN LAW AND LIABLE TO BE QUASHED. ITA NO. 2761/BANG/2017 PAGE 2 OF 3 4. IN ANY CASE AND WITHOUT FURTHER PREJUDICE, THE LEARNED CIT (APPEALS), BENGALURU-6 HAS ERRED IN; A) NOT ALLOWING LOSS OF RS. 44,070/- IN RESPECT OF F & 0 TRADE AS AGAINST PROFIT FROM GOLD F & O B) TAXING RS. 36,893/- BEING COST OF GOLD F & O. C) NOT ALLOWING RS. 21,373/- CLAIMED AS DEDUCTION U/S 10(38) IN RESPECT OF LONG TERM CAPITAL LOSS. D) TAXING RS. 2,46,175/- AS PER AIR INFORMATION IN RESPECT OF SALE AND PURCHASE OF SHARES THROUGH M/S ALLIANCE INTERMEDIARIES AND NETWORK PVT. LTD E) NOT CONSIDERING THE FACT THAT THE APPELLANT HAD EARNED SHORT TERM CAPITAL GAIN ON SALE OF SHARES. F) NOT CONSIDERING THE LOSS ON SALE OF SHARES DURING THE CURRENT YEAR ELIGIBLE FOR SET OFF. G) HOLDING WITHOUT BASIS THAT THE TRANSACTIONS IN SHARES ARE FRAUDULENT. ON PROPER APPRECIATION OF FACTS AND CIRCUMSTANCES OF THE CASE AND THE LAW APPLICABLE, THE PURCHASE ARE DULY RECORDED IN THE BOOKS OF ACCOUNTS AND THE ADDITION AS DONE BEING TOTALLY ERRONEOUS PREMISE IS TO BE DELETED. 5. THE LEARNED CIT (APPEALS), BENGALURU-6 HAS ERRED IN CONCLUDING THE VARIOUS OBSERVATIONS AND COMING TO VARIOUS CONCLUSIONS WITHOUT PROOF AND EVIDENCE AND SUCH OBSERVATION AND CONCLUSION NEED TO BE TOTALLY IGNORED. 6. THE APPELLANT DENIES THE LIABILITY TO PAY INTEREST. THE INTEREST HAVING BEEN LEVIED ERRONEOUSLY IS TO BE DELETED. 7. IN VIEW OF THE ABOVE AND OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING IT IS REQUESTED THAT THE IMPUGNED ORDER BE QUASHED OR ATLEAST THE ADDITION MADE TO THE INCOME BE DELETED AND THE INTEREST LEVIED BE DELETED. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS OPTED NOT TO PRESS GROUND NOS. 1 TO 3 AND ACCORDINGLY GROUND NOS. 1 TO 3 ARE DISMISSED BEING NOT PRESSED. 3. WITH REGARD TO GROUND NO. 4 THROUGH WHICH THE ADDITIONS ON MERIT ARE CHALLENGED, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT BEFORE THE AO, THE ASSESSEE COULD NOT FILE THE REQUISITE EVIDENCE IN SUPPORT OF HIS CLAIM BUT BEFORE THE CIT(A), ASSESSEE HAS FILED ALL THE RELEVANT EVIDENCES BUT THE CITA() DID NOT ADMIT THE SAME ON THE GROUND THAT IT WAS NOT FILED BEFORE THE AO AND HE CONFIRMED THE ADDITIONS. IT WAS FURTHER CONTENDED THAT SINCE THE LOWER AUTHORITIES HAVE ADJUDICATED THE ISSUE WITHOUT CONSIDERING THE EVIDENCES FILED BY THE ASSESSEE, THE ORDER OF THE ITA NO. 2761/BANG/2017 PAGE 3 OF 3 CIT(A) BE SET ASIDE AND MATTER BE RESTORED TO HIS FILE FOR READJUDICATION OF THE IMPUGNED ISSUE AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE LIGHT OF EVIDENCES FILED BEFORE THE CIT(A). THE LEARNED DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT BEFORE THE AO, THE ASSESSEES EXPLANATIONS WERE NOT EXAMINED. THE AO RATHER RELIED UPON THE STATEMENTS RECORDED IN SOME OTHER APPEALS. BEFORE THE CIT(A), ASSESSEE FILED RELEVANT EVIDENCES/EXPLANATIONS BUT IT WAS NOT CONSIDERED BY THE CIT(A). IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT LET THE MATTER BE RE-EXAMINED BY THE AO IN THE LIGHT OF THE RELEVANT EVIDENCES. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE AO FOR READJUDICATION OF THE IMPUGNED ISSUES AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS STANDS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2018. SD/- SD/- BANGALORE. DATED: 15 TH JUNE, 2018. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE. (INTURI RAMA RAO) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER