Damodaran & Sons, CHENNAI V. ITO Non Corporate Ward 9(5), CHENNAI

ITA 3533/CHNY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5075 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 28-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R. PADMANABHAN
• Keywords: Set aside; Capital Gains

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !', $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.3533/CHNY/2018 ' (' / ASSESSMENT YEAR : 2015-16 M/S DAMODARAN & SONS, NO.17/8, VEERASWAMI STREET, PURASAWAKKAM, CHENNAI - 600 007. PAN : AAAHD 3666 D V. THE INCOME TAX OFFICER, NON CORPORATE WARD - 9(5), CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI R. PADMANABHAN, CA ,-*+ . / / RESPONDENT BY : SHRI SRIDHAR DORA, JCIT 0 . 1$ / DATE OF HEARING : 13.05.2019 23( . 1$ / DATE OF PRONOUNCEMENT : 17.05.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-10, CHENNA I, DATED 31.10.2018 AND PERTAINS TO ASSESSMENT YEAR 2015-16. 2. SHRI R. PADMANABHAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE CLAIMED EXEMP TION UNDER 2 I.T.A. NO.3533/CHNY/18 SECTION 10(38) OF THE INCOME-TAX ACT, 1961 (IN SHOR T 'THE ACT') IN RESPECT OF LONG TERM CAPITAL GAINS ARISING OUT OF S ALE OF SHARES TO THE EXTENT OF 26,31,250/-. IN FACT, ACCORDING TO THE LD. REPRESEN TATIVE, THE ASSESSEE INVESTED IN SHARES OF M/S PANCHSHUL MA RKETING LTD. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT THE A SSESSING OFFICER MAINLY PLACED HIS RELIANCE ON THE INVESTIGATION REP ORT OF INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA. A CCORDING TO THE LD. REPRESENTATIVE, A COPY OF THE SAID INVESTIGATIO N REPORT WAS NOT FURNISHED TO THE ASSESSEE. THEREFORE, THE LD. REPR ESENTATIVE SUBMITTED THAT AN OPPORTUNITY MAY BE GIVEN TO THE A SSESSEE BY REMITTING BACK THE MATTER TO THE FILE OF THE ASSESS ING OFFICER. 3. ON THE CONTRARY, SHRI SRIDHAR DORA, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT HE IS PLACING RELIAN CE ON THE ORDERS OF THE ASSESSING OFFICER AS WELL AS THE CIT(APPEALS ). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE MADE INVESTMENTS IN THE SHARES OF M/S PANCHSHUL MAR KETING LTD. FROM THE ORDER OF THE ASSESSING OFFICER IT APPEARS THAT THE ASSESSEE PURCHASED 1,25,000 SHARES OF M/S PANCHSHUL MARKETING 3 I.T.A. NO.3533/CHNY/18 LTD. AT THE RATE OF 1/- PER SHARE. THE ASSESSEE SOLD THE SAME FOR A TOTAL CONSIDERATION OF 26,31,250/-. THE ASSESSEE DISCLOSED LONG TERM CAPITAL GAINS ON THE SALE OF THESE SHARES TO T HE EXTENT OF 26,31,250/-. THIS WAS DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND THAT THE COMPANY IN WHICH THE ASSESSEE INVES TED IS A PENNY STOCK COMPANY. HOWEVER, IT IS NOT BROUGHT ON RECOR D HOW THE ASSESSEE IS INVOLVED IN PROMOTING THE PENNY STOCK C OMPANY AND HOW THE ASSESSEE INVOLVED IN INFLATING THE SHARES O F THE COMPANY. MOREOVER, THE COPY OF THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM INVESTIGATION WING OF THE DEPARTMENT AT KOLKAT A WAS NOT FURNISHED TO THE ASSESSEE. ON IDENTICAL CIRCUMSTAN CES, THIS TRIBUNAL IN THE CASE OF KANHAIYALAL & SONS (HUF) V. ITO IN I .T.A. NO.1849/CHNY/2018, HAS REMITTED BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. IN FACT, TH IS TRIBUNAL HAS OBSERVED AT PARA 4 OF ITS ORDER DATED 06.02.2019 AS FOLLOWS:- 4. WE HEARD SHRI AR.V. SREENIVASAN, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. ADMITTEDLY, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEES ON THE BASIS OF THE INFORMATION SAID TO B E RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA WITH REGARD TO INVESTMENT MAD E BY THE ASSESSEES IN THE PENNY STOCK COMPANY. IT IS NOT IN DISPUTE THAT A COPY OF THE INVESTIGATION REPORT SAID 4 I.T.A. NO.3533/CHNY/18 TO BE RECEIVED FROM KOLKATA WAS NOT FURNISHED TO TH E ASSESSEE. MOREOVER, DETAILS OF THE ENQUIRIES SAID TO BE MADE BY THE ASSESSING OFFICER WERE ALSO NOT FURNISH ED TO THE ASSESSEES. IN THOSE CIRCUMSTANCES, THIS TRI BUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFF ICER HAS TO RECONSIDER THE ISSUE AFRESH AFTER FURNISHING THE MATERIAL RELIED UPON BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BEL OW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL BRING ON RECORD THE ROLE OF THE ASSES SEES IN PROMOTING THE COMPANY AND THE RELATIONSHIP OF TH E ASSESSEES, IF ANY WITH THE PROMOTERS, ROLE OF THE ASSESSEES IN INFLATING THE PRICE OF SHARES, ETC. T HE ASSESSING OFFICER SHALL ALSO FURNISH A COPY OF THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA AND OTHER MATERIALS IF ANYTHING IN HIS POSSESSION AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WI TH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEES. 5. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITI ES BELOW ARE SET ASIDE AND THE ISSUE RAISED BY THE ASSESSEE WITH REG ARD TO DEDUCTION UNDER SECTION 10(38) OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXA MINE THE MATTER AS DIRECTED BY THIS TRIBUNAL IN THE CASE OF KANHAIY ALAL & SONS (HUF) 5 I.T.A. NO.3533/CHNY/18 (SUPRA) AND THEREAFTER DECIDE THE ISSUE AFRESH IN A CCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE A SSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17 TH MAY, 2019 AT CHENNAI. SD/- SD/- (. !') ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 17 TH MAY, 2019. KRI. . ,167 87(1 /COPY TO: 1. *+/ APPELLANT 2. ,-*+/ RESPONDENT 3. 0 91 () /CIT(A)-10, CHENNAI 4. PRINCIPAL CIT-7, CHENNAI 5. 7: ,1 /DR 6. ;' < /GF.