K PONNI, CHENNAI V. ACIT, NCC-5, CHENNAI, CHENNAI

ITA 3304/CHNY/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4441 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 03-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: N VIJAY KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Capital Gains
• Section: 271(1)(c)

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I T.A. NO.3304/CHNY/2018 / ASSESSMENT YEAR :2013-14 K. PONNI NO.20/51, VASANTHA AVENUE, MRC NAGAR, RAJA ANNAMALAI PUNAM, CHENNAI 600 028. [PAN: AEAPP 5038 D ] VS. ASSISTANT COMMISSIONER OF INCOME TAX, NON CORPORATE CIRCLE -5, CHENNAI. ( /APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI N. VIJAY KUMAR, AR / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT / DATE OF HEARING : 06.03.2019 /DATE OF PRONOUNCEMENT : 18.03.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI DATED 28.09.2018 RELEVANT TO THE ASSESSMENT YEAR 2013-14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE TO THE EXTENT PREJUDICIAL TO THE INTERESTS OF THE APPELLANT AND IS OPPOSED TO THE PRINCIPLES OF EQUITY, NATURAL JUSTICE AND FAIR PLAY. 2. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE ORDER OF THE ASSESSING OFFICER IS WITHOUT JURISDICTION. 3. FOR THAT THE ORDER PASSED U/S.143(3) R.W.S.147 IS BAD IN LAW. I T.A. NO.3304/CHNY/2018 2 4. FOR THAT THE OBJECTION TO REASONS RECORDED FOR REOPENING WAS NOT DISPOSED OFF THROUGH A SEPARATE SPEAKING ORDER. S. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DISPOSING OFF THE APPEAL EX PARTE. 6. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE APPELLANT COULD HAVE DERIVED NO BENEFIT BY NOT APPEARING BEFORE HER FOR THE HEARING AND THAT THE SAME COULD NOT HAVE BEEN THE INTENT OF THE APPELLANT. 7. FOR THAT THE APPELLANT HAD REASONABLE CAUSE FOR NOT APPEARING BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) WHEN THE CASE WAS POSTED FOR HEARING BEFORE HIM. 8. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN UPHOLDING THE REJECTION OF THE CLAIM OF EXEMPTION U/S.10(38) ON THE LONG TERM CAPITAL GAINS ON SALE OF SHARES. 9. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT ALL THE CONDITIONS REQUIRED FOR CLAIMING EXEMPTION U/S.10(38) HAD BEEN MET BY THE APPELLANT. 10. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.3,02,52,050/- AS INCOME FROM OTHER SOURCES. 11. FOR THAT THE APPELLANT OBJECTS TO THE LEVY OF INTEREST U/S.234B. 2. THE ASSESSEE IS AN INDIVIDUAL FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2013-14 ON 11.10.2014 ADMITTING A TOTAL INCOME OF 19,59,180/-. INFORMATION WAS RECEIVED FROM DIT(INVESTIGATION) THAT DURING THE ASSESSMENT YEAR THE ASSESSEE SOLD PENNY STOCK BSR FINANCE & CONSTRUCTION LTD. TO THE TUNE OF 3,02,52,250/- AND CLAIMED EXEMPTION U/S 10(38). THE ASSESSING OFFICER IMPOSED PENALTY U/S 271(1)(C) OF THE ACT. 3. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE LEARNED CIT(A) DISMISSED THIS APPEAL. ON BEING AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL. I T.A. NO.3304/CHNY/2018 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE LD. CIT(A) HAS PASSED AN EX PARTE ORDER WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM AND ALSO PLEADS FOR MORE OPPORTUNITY TO BE GIVEN TO THE ASSESSEE. PER CONTRA, THE LD. DR STRONGLY RELIED ON THE ORDERS PASSED BY THE LD. CIT(A). AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN ORDER TO MEET THE PRINCIPLES NATURAL JUSTICE, WE REMIT THIS ISSUE BACK TO THE FILE OF THE LEARNED CIT(A) WITH A DIRECTION TO DISPOSE OFF THIS APPEAL AFRESH AFTER GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 18 TH MARCH, 2019 AT CHENNAI. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 18.03.2019 RS, SR. PS /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.