RAJESH V. SHAH, MUMBAI V. ITO WD 25(3)(3), MUMBAI

ITA 3556/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0277 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 15-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Keywords: Unexplained expenditure; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.3556/M/2017 ASSESSMENT YEAR: 2008-09 SHRI RAJESH V. SHAH, 301, MANGAL VILLA, TEJPAL ROAD, VILE PARLE (E), MUMBAI-400 057 PAN: AAZPS 9670F VS. ITO WARD 25(3)(3), C-10, 6 TH FLOOR, ROOM NO.608, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI 51 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : MS. DINKLE HARIA, A.R. REVENUE BY : MS. N. HEMALATHA, D.R. DATE OF HEARING : 14.12.2017 DATE OF PRONOUNCEMENT : 14.02.2018 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 10.02.2017 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2008-09. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL AND FILED ITS RETURN OF INCOME ON 09.03.09 DECLARING TO TAL INCOME OF RS.3,17,050/- AND CLAIMING LONG TERM CAPITAL GAIN O F RS.14,80,823/- AS EXEMPT. THEREAFTER, THE ASSESSMENT WAS REOPENED ON THE BASIS OF THE SEARCH CARRIED OUT IN THE GROUP COMPANIES OF TH E ASSESSEE WHEREIN IT WAS HELD THAT THE TRANSACTIONS ENTERED BY SUCH B ENEFICIAL COMPANIES WERE BOGUS AND REPRESENTED UNDISCLOSED INCOME OF BE NEFICIARY AND ITA NO.3556/M/2017 SHRI RAJESH V. SHAH 2 ASSESSEE IS ALSO ONE OF THE BENEFICIARIES. THEREFO RE, ASSESSMENT WAS REOPENED AND AFTER REOPENING THE ASSESSMENT ORDER, THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) HAS DIS ALLOWED THE LONG TERM CAPITAL GAIN AND ALSO REWORKED THE EXPENDITURE AND MADE THE ADDITION ON A CAPITAL GAIN OF ASSESSEE ON SALE OF S HARES OF CRAZY INFOTECH LTD. WORKED OUT AT RS.19,570/-. SECOND, T HE ADDITION WAS MADE OF RS.16,68,085/- ON SALE OF PURCHASE AND FURT HER THE ADDITION OF RS.22,212/- WAS MADE AS UNEXPLAINED EXPENDITURE FOR OBTAINING THE ACCOMMODATION ENTRY IN FORM OF SHARE AND ADDITI ON OF RS.19,120/- WAS DISALLOWED ON THE CLAIM OF SHORT TE RM CAPITAL GAIN BY THE ASSESSEE. 3. BEFORE THE LD. CIT(A) THE ASSESSEE HAS TAKEN THE GROUND THAT ASSESSEE HAS FILED THE ADDITIONAL EVIDENCE BEFORE T HE LD. CIT(A) WHICH IS ON PAGE 36 PAGE 90 TO 91 AND ASSESSEE HAS ALSO FILED THE AFFIDAVIT FROM BROKER ALSO AND LETTER TO AO ASKING FOR INSPECTION AND ASSESSMENT ORDER FOR 2007-08. ASSESSEE SUBMITTED A LL THE EVIDENCES BEFORE THE LD. CIT(A). HOWEVER, THE AO PASSED THE ORDER WITHOUT PROVIDING FURTHER OPPORTUNITY OF HEARING AND LD. CI T(A) HAS NEITHER CONSIDERED THE AFFIDAVIT FILED BY THE ASSESSEE NOR PROVIDED THE COPY OF THE STATEMENT AND NOR PROVIDED THE CROSS EXAMINA TION. THEREFORE, THE LD. A.R. SUBMITTED THAT THIS APPEAL MAY BE REST ORED TO THE LD. CIT(A). 4. THE LD. D.R. OBJECTED TO IT. ITA NO.3556/M/2017 SHRI RAJESH V. SHAH 3 5. HAVING HEARD BOTH THE PARTIES, I FIND THAT BEFOR E THE LD. CIT(A) THE ASSESSEE HAS FILED THE AFFIDAVIT OBTAINED FROM THE BROKER. ASSESSEE ALSO ASKED THE AO FOR VERIFICATION. IN FI ND THAT THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY AND WITHOUT CONSIDERI NG THE SAME THE LD. CIT(A) HAS PASSED THE ORDER. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIRPLAY, I RESTORE THIS MATTER BACK TO THE FIL E OF THE LD. CIT(A). THE LD. CIT(A) IS DIRECTED TO DECIDE THE MATTER AFR ESH AS PER LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 14.02.2018. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED:14.02.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.