Smt. Pinky Goel, Haldwani V. ITO, Haldwani

ITA 285/DEL/2009

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3313 (ITAT-DELHI)
• Duration Of Justice: 8 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 01-05-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 27-01-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Assessee Lawyers: DR RAKESH GUPTA
• Section: 143(3)

Judgement Text

I.T.A .NO.-285/DEL/2009 SMT. PINKY GOEL, VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEM BER AND SH.ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A .NO.-285/DEL/2009 (ASSESSMENT YEAR-2005-06) SMT. PINKY GOEL, D/0-SH. LAKHI RAM JAIN, SADAR BAZAR, HALDWANI ( APPELLANT) VS ITO-2, HALDWANI. (RESPONDENT) ASSESSEE BY DR.RAKESH GUPTA, ADV. REVENUE BY SH.AMRIT LAL, SR.DR ORDER PER ANADEE NATH MISSHRA, ACCOUNTANT MEMBER (A). THE PRESENT APPEAL HAS BEEN FILED BY THE ASSES SEE AGAINST THE ORDER DATED 30.01.2008 OF CIT(A)-II, DEHRADUN PERTA INING TO A.Y. 2005-06. GROUND OF APPEAL IS AS UNDER:- THAT ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE AUTHORITIES BELOW ERRED IN DENYING EXEMPTION CLAIME D BY THE APPELLANT U/S 10(38) OF THE INCOME TAX ACT, 1961 AN D IN MAKING ADDITION AMOUNTING TO RS.1,04,67,196/- AS UNEXPLAIN ED MONEY U/S 69A OF THE ACT. THE ACTION BEING MOST ARBITRAR Y, ERRONEOUS, UNJUSTIFIED AND ILLEGAL MUST BE QUASHED. (B). IN THIS CASE, ASSESSMENT ORDER DATED 31.12.200 7 WAS PASSED U/S 143(3) OF I.T.ACT, 1961 (IN SHORT ACT) WHEREIN AD DITION OF RS.1,04,67,196/- WAS MADE U/S 69A OF THE ACT ON ACC OUNT OF BOGUS SALE OF SHARES. VIDE ORDER DATED 19.11.2008, LD.CI T(A) CONFIRMED THE ADDITION. AGGRIEVED, THE ASSESSEE IS IN APPEAL IN ITAT. AT THE TIME OF PAGE 2 OF 4 I.T.A .NO.-285/DEL/2009 SMT. PINKY GOEL VS ITO HEARING BEFORE US, AT THE OUTSET, LD. COUNSEL FOR T HE ASSESSEE DREW OUR ATTENTION TO ORDER DATED 19.04.2017 OF CO-ORDINATE BENCH OF ITAT, DELHI IN THE CASE OF SMT. KANTA DEVI (IN ITA NO.284 /DEL/2009 FOR A.Y. 2005-06) WHEREIN ITAT REMANDED THE MATTER BEFORE T HE ASSESSING OFFICER (IN SHORT AO); AND PLEADED THAT IN THE CA SE OF THE PRESENT ASSESSEE ALSO, NOW IN APPEAL BEFORE US, THE MATTER SHOULD BE REMANDED BEFORE THE AO BECAUSE, HE PLEADED, THE FAC TS AND CIRCUMSTANCES OF THE TWO CASES ARE IDENTICAL. COPI ES OF ASSESSMENT ORDER PASSED BY THE AO AND APPELLATE ORDERS PASSED BY LD.CIT(A) AND BY ITAT IN THE CASE OF SMT. KANTA DEVI (SUPRA) WERE FILED IN SUPPORT OF THIS PLEA. THE LD. DR APPEARING FOR REVENUE WAS UN ABLE TO POINT OUT ANY DISTINGUISHABLE FACTS AND CIRCUMSTANCES BETWEEN THE CASES OF SMT. KANTA DEVI (SUPRA) AND THE PRESENT ASSESSEE NO W IN APPEAL BEFORE US, AND AGREED WITH THE SUBMISSIONS MADE BY LD. COUNSEL FOR THE ASSESSEE. RELEVANT PORTION OF ORDER OF THE CO- ORDINATE BENCH OF ITAT, DELHI IN THE CASE OF SMT. KANTA DEVI (SUPRA) IS REPRODUCED AS UNDER:- 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE HAS SHOWN PURCHASE OF SHARES OF M/S ROHAN FINANCE COMPANY AND M/S SUBHASH CAPITAL LTD. THESE SHARES WERE CLAIMED TO B E SOLD AS SET OUT IN THE ASSESSMENT ORDER BY THE ASSESSING OFFICE R. THE ASSESSING OFFICER CONDUCTED ENQUIRIES WHICH WERE FU RTHER CONFRONTED TO THE ASSESSEE. SUBSEQUENTLY, THE A.O H AS CONDUCTED MORE ENQUIRIES AND THE INFORMATION COLLECTED FROM C IC, CALCUTTA, DDIT (INVESTIGATION) AND REGISTRAR SHARE TRANSFER A GENT WHICH REVEALED THAT BOOKING OF LONG TERM CAPITAL ACCOUNT BY THE ASSESSEE IS NOTHING BUT MANIPULATION CARRIED OUT WITH ACTIV E CONVEYANCE OF THE TENDER BROKER AS PER THE ASSESSING OFFICER. THE ASSESSING PAGE 3 OF 4 I.T.A .NO.-285/DEL/2009 SMT. PINKY GOEL VS ITO OFFICER MADE AN ADDITION OF RS.60,38,146/- AS UNEXP LAINED MONEY U/S 69A ON ACCOUNT OF SHARES SOLD BY THE ASSESSEE. 3. AGGRIEVED BY THIS THE ASSESSEE FILED APPEAL BEFO RE THE CIT(A). THE MAIN CONTENTION OF THE ASSESSEE BEFORE THE CIT( A) WAS THAT VARIOUS EVIDENCE SUCH AS COMMUNICATION OF THE BROKE R WITH THE DDIT (INV.) KOLKATA WAS NOT FURNISHED TO THE ASSESS EE OR CONFRONTED OF ANY MATERIAL IN A.OS POSSESSION TO T HE ASSESSEE AT ANY POINT OF TIME DURING ASSESSMENT PROCEEDINGS. TH E ASSESSEES FURTHER GROUND BEFORE THE CIT(A) WAS THAT THE ASSES SEE WAS GIVEN COPIES OF SOME DOCUMENTS RECEIVED FROM CALCUTTA STO CK EXCHANGE AND DDIT (INV.) KOLKATA ON 27/12/2007 WHILE SHOW CA USE NOTICE WAS ISSUED ONE DAY PRIOR I.E. 26/12/2007. THUS, ASS ESSEE WAS GIVEN ONLY A DAYS TIME FOR REPLY AND COMPLIANCE TO COMPLETE THE FORMALITY OF CONFRONTATION OF EVIDENCE TO BE USED I N ASSESSMENT PROCEEDINGS WHICH WAS AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. THE ASSESSEE ALSO SUBMITTED BEFORE THE CIT(A) THAT THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY AS SUCH ABOUT THE MAT ERIAL WHICH WAS SUBMITTED BEFORE THE ASSESSING OFFICER BY THE D DIT (INV.) CALCUTTA. THE CIT(A) VIDE DISMISSING THE APPEAL OF THE ASSESSEE HAS ALSO NOT GIVEN ANY DETAILED REASONING IN RESPEC T OF THE SAID DOCUMENTS. 4. THE LD. AR SUBMITTED THAT SINCE THE EVIDENCE WHI CH WAS BEFORE THE ASSESSING OFFICER WAS NOT CONFRONTED TO THE ASS ESSEE AND NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE FOR PLEADING HIS CASE BEFORE THE ASSESSING OFFICER, IT WILL BE APPROPRIATE TO RE MAND THE MATTER BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFI CER BE DIRECTED TO TAKE COGNIZANCE OF ALL THE MATERIALS PLACED BEFO RE THE DDIT ((INV.) CALCUTTA AND THE CALCUTTA STOCK EXCHANGE DO CUMENTS BY GIVING PROPER HEARING TO THE ASSESSEE BEFORE THE AS SESSING OFFICER . THE LD. DR AGREED THE SUBMISSIONS MADE BY THE LD. A R. 5. WE HAVE HEARD BOTH THE SIDES. IT IS PERTINENT TO NOTE THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAS NOT GIV EN ANY FINDINGS IN RESPECT OF THE DOCUMENTS RECEIVED BY THE ASSESSI NG OFFICER FROM DDIT (INV.) CALCUTTA AND CALCUTTA STOCK EXCHANGE. N O AMPLE OPPORTUNITY WAS GRANTED TO THE ASSESSEE BEFORE THE ASSESSING OFFICER. HENCE, IN THE INTEREST OF JUSTICE IT IS AP PROPRIATE TO REMAND THIS MATTER BEFORE THE ASSESSING OFFICER BY TAKING COGNIZANCE OF ALL THE DOCUMENTS AND GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONFRONTING THE SAID DOCUMENTS AND PLEADING HER CASE BEFORE THE ASSESSING OFFICER. (C). IN VIEW OF THE FOREGOING FACTS AND CIRCUMSTANC ES; AND THE POSITION BROUGHT TO OUR ATTENTION BY THE TWO SIDES; AND RESP ECTFULLY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH OF ITAT, DELHI I N THE CASE OF SMT. PAGE 4 OF 4 I.T.A .NO.-285/DEL/2009 SMT. PINKY GOEL VS ITO KANTA DEVI (SUPRA) IN FACTS AND CIRCUMSTANCES THAT WERE NOT DISTINGUISHED BY THE REVENUE IN THE CASE OF THE PRE SENT ASSESSEE NOW IN APPEAL BEFORE US; WE SET ASIDE THE MATTERS RAISE D IN GROUND OF APPEAL TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO PASS FRESH ORDER AS PER LAW AFTER TAKING COGNIZANCE OF ALL THE DOCUMENTS AND GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE FOR C ONFRONTING THE SAID DOCUMENTS AND PLEADING HER CASE BEFORE THE AO. TH IS DECISION WAS PRONOUNCED ORALLY BY THE BENCH IN OPEN COURT AFTER CONCLUSION OF HEARING ON 01.05.2017. (D). FOR STATISTICAL PURPOSES, THIS APPEAL OF THE A SSESSEE IS PARTLY ALLOWED. THIS WRITTEN ORDER PRONOUNCED IN OPEN COURT ON 02 ND MAY 2017. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACC OUNTANT MEMBER DATE:- 02 ND MAY, 2017 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI