DEEPAK BHUPATRAI MEHTA, MUMBAI V. ACIT CIRCLE-19(2), MUMBAI

ITA 3488/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55875 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 28-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 03-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK J SHAHSH VIPUL J SHAH

Judgement Text

1 MR DEEPAK BHUPATRAI MEHTA IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI R K PANDA, AM & SHRI VIJAY PAL RAO, JM ITA NO. 3488/MUM/2010 (ASST YEAR 2006-07) MR DEEPAK BHUPATRAI MEHTA 401 JAY APARTMENT, 4 TH FLOOR D WING NEHRU ROAD SANTACRUZ (EAST) MUMBAI 55 VS THE ASST COMMR OF INCOME TAX CIR 19(2), MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AHTPM3925E ASSESSEE BY SH ASHOK J SHAH/SH VIPUL J SHAH REVENUE BY SH R K SONU DT.OF HEARING 28 TH NOV 2011 DT OF PRONOUNCEMENT 30 TH NOV 2011 ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 17.2.2010 OF THE CIT(A) FOR THE AY 2006-07. 2 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) ERRED IN CONFIRMING THE DISALLOWANCE OF CLAIM OF SHORT TE RM CAPITAL LOSS OF RS. 2 1,59,320/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) ERRED IN APPRECIATING THE FACT THAT THE APPELLANT HAD SUBM ITTED THE ENTIRE DETAILS OF SALE AND PURCHASE BEFORE THE ASSESSING OFFICER AND H ENCE THE CIT (A) ERRED IN ACCEPTING THE OBSERVATION OF THE ASSESSING OFFICER THAT NO DETAILS WERE FURNISHED BY THE APPELLANT. 3. THE ASSESSING OFFICER BE DIRECTED TO ALLOW THE CLA IM OF SHORT TERM CAPITAL 2 MR DEEPAK BHUPATRAI MEHTA LOSS AND ALLOW THE SAME TO BE CARRIED FORWARD TO TH E SUBSEQUENT YEAR FOR SET OFF. 3 THE GROUNDS NO 1 TO 3 REGARDING THE DISALLOWANCE OF CLAIM OF SHORT TERM CAPITAL LOSS. 4 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE CIT(A) HAS ADJ UDICATED THIS ISSUE IN PARA 3.1 AS UNDER: 3.1 THE APPELLANT HAD SHOWN SHORT TERM CAPITAL LOS S OF RS.21 ,59,320/- ON PURCHASE AND SALE OF ONLY THREE RELATIVELY LESSER KNOW N COMPANIES. THE ASSESSING OFFICER HAD ASKED THE APPELLANT TO FURNI SH COPIES OF BROKERS NOTES, DETAILS OF PAYMENTS MADE, DATE, AMOUNT, CHEQUE (DD NO.) ALONG WITH BANK ACCOUNTS. THE APPELLANT FAILED TO FURNISH THE REQUIS ITE J DOCUMENTARY EVIDENCES BEFORE THE ASSESSING OFFICER. IN THE ABSEN CE OF THE DETAILS PERTAINING TO PURCHASE AND SALE OF SHARES RESULTING I N SHORT TERM CAPITAL LOSS, THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED THE CLA IM OF THE APPELLANT REGARDING SHORT TERM CAPITAL LOSS. THE DISALLOWANCE OF SHORT TERM CAPITAL LOSS OF RS. 21,59,320!- IS, THEREFORE, CONFIRMED. BOTH THE GROUNDS OF APPEAL ARE DISMISSED.| 5 AS EVIDENT FROM THE IMPUGNED ORDER OF THE CIT(A) THAT THE CLAIM OF THE ASSESSEE WAS DISALLOWED ON THE GROUND THAT THE ASS ESSEE FAILED TO FURNISH THE REQUISITE DOCUMENTARY EVIDENCE BEFORE THE ASSESSING OFFICER IN RESPECT OF THE PURCHASE AND SALE OF SHARES RESULTING SHORT TERM CA PITAL LOSS. 6 BEFORE US, THE LD AR HAS SUBMITTED THAT THE ASSES SEE FILED THE ENTIRE RELEVANT RECORDS BEFORE THE ASSESSING OFFICER INCLUDING THE D-MAT ACCOUNT SHOWING THE PURCHASE AND SALE OF SHARES. THE ASSESSING OFFICER AS WELL AS THE CIT(A) WITHOUT CONSIDERING AND APPRECIATING THE RELEVANT RECORD H AVE REJECTED THE CLAIM OF THE ASSESSEE. HE HAS REFERRED THE D-MAT ACCOUNT DETAILS SHOWING THE PURCHASE OF SHARES IN THE MONTH OF MARCH, 2005 AND SALE OF THE SAME IN THE MONTHS OF JUNE, JULY, AUG AND SEPT 2005. WE FIND THAT THE ASSESSING OFFICER S FINDING ARE INFLUENCED BY THE 3 MR DEEPAK BHUPATRAI MEHTA FACT THAT THE ASSESSEE HAS SHOWN THE LIABILITY AGA INST THE PURCHASE OF SHARES, WHICH WE FIND THAT THE SHARES WERE PURCHASED FROM THE SIS TER CONCERN OF THE ASSESSEE AND THE PAYMENT WAS DUE; THEREFORE, THE ASSESSEE SHOWN THE LIABILITY AGAINST PURCHASE OF THE SHARES. IN OUR OPINION, THIS SOLE FACTOR O F SHOWING THE LIABILITY OF THE AMOUNT OF PURCHASE OF SHARES CANNOT BE A DETERMINATIVE FACTOR WHEN THE OTHER RECORD HAS PRIMA FACIE SHOWN THAT THE SHARES WERE TRANSFERRED IN THE NAME OF THE ASSESSEE IN THE MONTH OF MARCH, 2005 AS EVIDENT FROM THE DETAIL S OF D-MAT ACCOUNT AND THEREAFTER THE ASSESSEE SOLD THE SHARES FROM JUNE T O SEPT 2005. ACCORDINGLY, IN OUR OPINION, THE LOWER AUTHORITIES HAVE NOT PROPERLY CO NSIDERED AND EXAMINED THE RELEVANT MATERIAL. HENCE, WE SET ASIDE THIS ISSUE T O THE RECORD OF THE CIT(A) FOR RECONSIDERATION AND ADJUDICATION OF THE ISSUE AFTER CONSIDERING THE RELEVANT MATERIAL AND EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSE E. 7 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 30 TH , DAY OF NOV 2011. SD/ S D/- ( R K PANDA ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 30 TH , NOV 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI