LATE SMT. PANNADEVI AGARWAL, MUMBAI V. ACIT 18(2), MUMBAI

ITA 338/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8336 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2002-2003
• Appeal Filed On: 21-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 131

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.338/MUM/2016 ASSESSMENT YEAR: 2002-03 LATE SMT. PANNADEVI AGARWAL THROUGH LEGAL HEIR SHRI MADHAV PRASAD AGARWAL, C/O- SHANKARLAL JAIN & ASSOCIATES LLP, 12, ENGINEER BLDG, 265 PRINCESS STREET, MUMBAI-400002 / VS. ACIT, RANGE-18(2), PIRAMAL CHAMBERS, LALBAUG, MUMBAI ( ! /ASSESSEE) ( ' / REVENUE) P.A. NO.AABPA6142P ! / ASSESSEE BY SHRI S.L. JAIN ' / REVENUE BY SHRI RAJAT MITTAL -DR # '$ % ! & / DATE OF HEARING : 29/11/2017 % ! & / DATE OF PRONOUNCEMENT 29/11/2017 ITA NO. 338/MUM/2016 LATE SMT. PANNADEVI AGARWAL THROUGH LEGAL HEIR SHRI MADHAV PRASAD AGARWAL 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 18/11/2015 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, CONFIRMING THE DISALLOWANCE OF SHORT TERM CAPITAL LOSS AMOUNTING TO RS.28,91,841/- ON PURCHAS E AND SALE OF SHARES OF M/S KUSHAL SOFTWARE LTD., HOL DING THAT THE TRANSACTION OF THE SAID SCRIPT WAS PREDETE RMINED ORCHESTRATED TRANSACTIONS WITHOUT PROPERLY APPRECIA TING THE EVIDENCE PRODUCED BY THE ASSESSEE, IGNORING THE EVIDENCES IN THE FORM OF BILLS FOR PURCHASE AND SAL E AS ISSUED BY THE STOCK BROKER, CONTRACT NOTES, SHARES BEING CREDITED IN THE ASSESSEES DE-MAT ACCOUNT AND TRANS FERRED FROM THE DE-MAT ACCOUNT AT THE TIME OF SALE, PAYMEN T BEING MADE BY CHEQUE, AND THE TRANSACTION BEING CONFIRMED BY THE BROKER DIRECTLY TO THE ASSESSING O FFICER. 2. DURING HEARING, SHRI S. L. JAIN, LD. COUNSEL FO R THE ASSESSEE, ADVANCED ARGUMENTS WHICH ARE IDENTICA L TO THE GROUND RAISED BY CONTENDING THAT THE RELEVANT EVIDENCES WERE NOT MADE AVAILABLE TO THE ASSESSEE A ND ITA NO. 338/MUM/2016 LATE SMT. PANNADEVI AGARWAL THROUGH LEGAL HEIR SHRI MADHAV PRASAD AGARWAL 3 FURTHER THE ASSESSING OFFICER DID NOT CARRY OUT THE DIRECTION OF THE LD. COMMISSIONER OF INCOME TAX (AP PEAL) IN REMAND PROCEEDINGS. ON THE OTHER HAND, THE LD. D R, SHRI RAJAT MITTAL, THOUGH DEFENDED THE IMPUGNED ORD ER BUT DID NOT CONTROVERT THE ARGUMENT OF THE ASSESSEE THAT DIRECTION OF THE LD. COMMISSIONER OF INCOME TAX (AP PEAL) IN REMAND PROCEEDINGS WAS NOT CARRIED OUT BY THE ASSESSING OFFICER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS A PARTNER OF M/S PR IYATA INTERNATIONAL AND M/S OM INTERCONTINENTAL. THE INCO ME OF THE ASSESSEE INCLUDES INCOME FROM HOUSE PROPERTY AN D LONG TERM CAPITAL GAINS AND ALSO FROM SPECULATION I N SHARES. THE ASSESSEE DECLARED INCOME OF RS.2,88,51, 320/- IN HER RETURN FILED ON 29/10/2002, WHICH WAS PROCES SED U/S 143(1) ON 10/02/2003 AT THE RETURNED INCOME. TH E CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, THE REFORE, NOTICES U/S 143(2) AND 142(1) WERE SERVED UPON THE ASSESSEE. THE ASSESSEE ATTENDED THE PROCEEDINGS FRO M ITA NO. 338/MUM/2016 LATE SMT. PANNADEVI AGARWAL THROUGH LEGAL HEIR SHRI MADHAV PRASAD AGARWAL 4 TIME TO TIME AND SUBMITTED THE DETAILS AND ALSO PRO DUCED THE BOOKS OF ACCOUNTS AS IS EVIDENCED FROM THE ASSESSMENT ORDER ITSELF. THE INCOME OF THE ASSESSEE ALSO INCLUDES LONG TERM CAPITAL GAIN OF RS.2,87,28,191/- . WHILE MAKING THE ASSESSMENT THE LD. ASSESSING OFFIC ER DISALLOWED THE SHORT TERM CAPITAL LOSS OF RS.28,91, 841/-, CLAIMED BY THE ASSESSEE AND INCURRED ON CERTAIN TRANSACTION CARRIED OUT IN THE SHARES OF KUSHAL SOF TWARE LTD., FOR WHICH (AS PER THE ASSESSEE) NECESSARY BIL LS CONTRACT NOTES, DETAILS OF PAYMENT, WERE SUBMITTED BY THE ASSESSEE. THE PURCHASE AND SALE WERE EFFECTED THROU GH M/S VRP FINANCIAL SERVICES PVT. LTD. (REGISTERED BR OKER) WITH THE INTERCONNECTED STOCK EXCHANGE OF INDIA. TH E ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE P LEA THAT M/S VRP FINANCIAL SERVICES LTD. WAS SUMMONED TWICE, BUT NOBODY APPEARED AND THE ASSESSEE DID NOT PRODUCE THE BROKER FOR EXAMINATION. THE STAND OF TH E ASSESSEE BEFORE US IS THAT IN RESPONSE TO FIRST SUM MON, THE BROKER APPEARED AND FILED THE CERTAIN DETAILS A ND WHEN THE SECOND SUMMONS WERE SUMMONED, THE BROKER WAS OU T OF MUMBAI AND THE ASSESSEE REQUESTED THE ASSESSING ITA NO. 338/MUM/2016 LATE SMT. PANNADEVI AGARWAL THROUGH LEGAL HEIR SHRI MADHAV PRASAD AGARWAL 5 OFFICER TO ENFORCE THE PRESENCE OF THE BROKER U/S 1 31 OF THE ACT. THE LD. ASSESSING OFFICER WAS OF THE VIEW THAT CERTAIN ACTION HAS BEEN TAKEN AGAINST THE BROKER BY SEBI FOR CERTAIN CONTRAVENTION AND THUS THE CLAIMED LOSS WAS DISALLOWED. THE CASE OF THE ASSESSEE BEFORE US IS T HAT PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE . WE HAVE ALSO PERUSED THE OBSERVATION MADE IN PARA 3.6 OF THE IMPUGNED ORDER ALONG WITH PARA 4.3. CONSIDERING THE TOTALITY OF FACTS, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE. THE ASSESSE E IS AT LIBERTY TO NECESSARY EVIDENCE IN SUPPORT OF HIS/HER CLAIM. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) MAY SUMMON THE BROKER TO SATISFY HIMSELF WITH RESPECT T O GENUINENESS OF TRANSACTION AND ALSO MAY SOUGHT REPO RT FROM THE ASSESSING OFFICER. THE ASSESSEE IS ALSO DI RECTED TO PRODUCE THE BROKER. THUS, THE APPEAL OF THE ASSESSE E IS SENT TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. ITA NO. 338/MUM/2016 LATE SMT. PANNADEVI AGARWAL THROUGH LEGAL HEIR SHRI MADHAV PRASAD AGARWAL 6 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 29/11/2017. SD/ - (G. MANJUNATHA) SD /- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; + DATED : 29/11/2017 F{X~{T? P.S/. .. , %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 # 3! , ( ,- ) / THE CIT, MUMBAI. 4. 2 2 # 3! / CIT(A)- , MUMBAI 5. 5'6 0! , 2 ,-& , , # $ / DR, ITAT, MUMBAI 6. 7 8$ / GUARD FILE. / BY ORDER, 15-! 0! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI