NARESH KUMAR MITTAL, RAXAUL V. DCIT, CIRCLE-1, MUZAFFARPUR

ITA 35/PAT/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1415 (ITAT-PATNA)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 22-04-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SANJEEV ANWAR
• Keywords: Set aside; Capital Gains

Judgement Text

1 ITA NO. 35/PAT/2020 NARESH KUMAR MITTAL, AY 2006-07 IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, VIRTUAL HEARING AT KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 35/PAT/2020 ASSESSMENT YEAR:2006-07 NARESH KUMAR MITTAL (PAN: AEKPM3475K) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, MUZAFFARPUR APPELLANT RESPONDENT DATE OF HEARING 11.12.2020 DATE OF PRONOUNCEMENT 16.12.2020 FOR THE APPELLANT SHRI SANJEEV ANWAR, AR FOR THE RESPONDENT SHRI AJAY KUMAR, DR ORDER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), MUZZAFARPUR DATED 27-01-2020 FOR ASSESSMENT YEAR 2006-07. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SHRI SANJEEV ANWAR BROUGHT TO OUR NOTICE TO THE FACT THAT THE AO HAS DISALLOWED THE LONG TERM CAPITAL GAINS U/S. 10(38) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON THE GROUND THAT ASSESSEE HAS NOT PRODUCED THE EVIDENCE TO SUBSTANTIATE THAT HE HAS REMITTED THE STT ON THE SAID TRANSACTION. ACCORDING TO LD. COUNSEL EVEN THOUGH BEFORE THE LD. CIT(A), HE PRODUCED THE EVIDENCE TO SUBSTANTIATE THAT ASSESSEE HAD IN FACT REMITTED STT ON THE LONG TERM CAPITAL GAIN, STILL THE LD. CIT(A) HAS NOT GIVEN ANY RELIEF TO THE ASSESSEE, SO HE PLEADS THAT SUITABLE DIRECTIONS MAY BE GIVEN TO AO. PER CONTRA, THE LD. DR, RELIES ON THE ACTION OF LD. CIT(A) AND DOES NOT WANT ME TO INTERFERE IN THE IMPUGNED ORDER. 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, IT IS NOTED THAT THE AO HAS DISALLOWED THE LONG TERM CAPITAL GAIN WHICH IS EXEMPT U/S. 10(38) OF THE ACT ON THE GROUND THAT ASSESSEE FAILED TO PRODUCE EVIDENCE TO THE EFFECT THAT ASSESSEE HAD REMITTED STT ON THE SAID GAIN. ACCORDING TO THE LD. COUNSEL, GIVEN AN OPPORTUNITY THE ASSESSEE WOULD BE ABLE TO 2 ITA NO. 35/PAT/2020 NARESH KUMAR MITTAL, AY 2006-07 PRODUCE THE DOCUMENTS BEFORE THE AO. THEREFORE, I SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND REMAND THIS ISSUE BACK TO THE FILE OF AO AND THE ASSESSEE IS DIRECTED TO PRODUCE EVIDENCE TO SUBSTANTIATE THAT HE HAS REMITTED STT ON THE LONG TERM CAPITAL GAIN AND THE AO ON VERIFICATION FINDS IT TO BE CORRECT, THEN THE AO TO ALLOW THE LONG TERM CAPITAL GAIN CLAIMED BY THE ASSESSEE IN ACCORDANCE TO LAW. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 16TH DECEMBER, 2020 JD(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI NARESH KUMAR MITTAL, S/O LATE JAGDISH PRASAD MITTAL, ARYA SAMAJ ROAD, RAXAUL, EAST CHAMPARON, BIHAR-845305. 2 RESPONDENT DCIT, CIRCLE-1, MUZAFFARPUR 3. 4. 5. CIT(A), MUZZAFARPUR CIT, MUZZAFARPUR DR, ITAT, PATNA. / TRUE COPY, BY ORDER, SENIOR PVT. SECY/DDO.