Shri Harisingh Hirawat, Chennai V. ITO, Non Corporate Ward -4(2), Chennai

ITA 376/CHNY/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9739 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 01-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Assessee Lawyers: ARJUN

Judgement Text

, / , IN THE INCOME TAX APPELLATE TRIBUNAL B / SMC BENCH, CHENNAI . . . , . '# , % & BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NOS.376 & 377/CHNY/2018 ( )( / ASSESSMENT YEARS :2010-11 & 2013-14 SHRI HARISINGHHIRAWAT, 37, STROTTENMUTHIAMUDALY STREET, CHENNAI - 600 079. PAN : AAAPH 3587 K V. THE INCOME TAX OFFICER, NON CORPORATE WARD 4(2), CHENNAI - 600 006. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SHRI ARJUN, CA -.+, / 0 / RESPONDENT BY : SHRI B. SAGADEVAN, JCIT 1 / 2% / DATE OF HEARING : 15.11.2018 3') / 2% / DATE OF PRONOUNCEMENT : 03.12.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AGA INST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI, DATED 28.11.2017 AND PERTAIN TO ASSESSMENT YEARS 2010-11 AND 2013-14. SINCE COMMON ISSUE ARISES FOR CONSIDE RATION IN BOTH THE APPEALS, WE HEARD THESE APPEALS TOGETHER AND DISPOS ING OF THE SAME BY THIS COMMON ORDER. 2 I.T.A. NOS.376 & 377/CHNY/18 2. SHRI ARJUN, THE LD. REPRESENTATIVE FOR THE ASSES SEE, SUBMITTED THAT THE ASSESSEE INVESTED IN SHARES OF PUBLIC LIMITED C OMPANY. ON SALE OF SUCH SHARES, ACCORDING TO THE LD. REPRESENTATIVE, T HE ASSESSEE CLAIMED EXEMPTION UNDER SECTION 10(38) OF THE INCOME-TAX AC T, 1961 (IN SHORT 'THE ACT'). THE ASSESSING OFFICER BY PLACING RELIANCE O N THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA, DISALLOWED THE CLAIM OF THE ASSESSEE. ACC ORDING TO THE LD. REPRESENTATIVE, WHEN THE ASSESSEE INVESTED IN THE S HARES OF THE COMPANY, THE PROFIT ARISING ON SALE OF SUCH SHARE I S EXEMPTED UNDER SECTION 10(38) OF THE ACT. 3. ON THE CONTRARY, SHRI B. SAGADEVAN, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE PURCHAS ED 3500 SHARES OF M/S CONCRETE CREDIT LTD. ACCORDING TO THE LD. D.R ., THE ASSESSEE COULD NOT DISCLOSE THE MODE OF DELIVERY. THE CONFIRMATIO N LETTER FILED BY THE ASSESSEE DOES NOT BEAR THE DATE OF CONFIRMATION. M OREOVER, COPY OF DEMAT ACCOUNT WAS ALSO NOT FILED. THEREFORE, ACCOR DING TO THE LD. D.R., THE ASSESSING OFFICER CONCLUDED THAT THE LONG TERM CAPITAL GAIN WAS A BOGUS ONE. ON FURTHER APPEAL, THE CIT(APPEALS) FOU ND THAT THE ASSESSING OFFICER RECEIVED INFORMATION FROM THE INV ESTIGATION WING OF THE DEPARTMENT AT KOLKATA REGARDING THE BOGUS ENTRIES O F CAPITAL GAIN ON SALE 3 I.T.A. NOS.376 & 377/CHNY/18 OF SHARES OF M/S CONCRETE CREDIT LTD. THEREFORE, A CCORDING TO THE LD. D.R., THE CIT(APPEALS) HAS RIGHTLY CONFIRMED THE DI SALLOWANCE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEEADMITTEDLY INVESTED IN THE SHARES OF M/S CO NCRETE CREDIT LTD. M/S CONCRETE CREDIT LTD. IS A PUBLIC LIMITED COMPAN Y REGISTERED BY THE REGISTRAR OF COMPANIES. IT WAS ALSO ALLOWED TO ISS UE PUBLIC SHARES. THE ASSESSING OFFICER APPEARS TO HAVE RECEIVED INFORMAT ION FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA REG ARDING BOGUS ENTRIES OF SALE OF SHARES OF M/S CONCRETE CREDIT LTD. IT I S NOT KNOWN WHAT IS THE INFORMATION THE ASSESSING OFFICER HAS ACTUALLY RECE IVED. THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY TO CONTROVERT THE SAI D INFORMATION. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY WITH RESPECT TO THE INFORMATION SAID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTM ENT AT KOLKATA. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW A RE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE AS SESSING OFFICER. THE ASSESSING OFFICER SHALL FURNISH A COPY OF THE REPOR T SAID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT KO LKATA AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFT ER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 4 I.T.A. NOS.376 & 377/CHNY/18 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 3 RD DECEMBER, 2018 AT CHENNAI. SD/- SD/- (. '# ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 3 RD DECEMBER, 2018. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-5, CHENNAI-34 4. PRINCIPAL CIT-9, CHENNAI 5. 7: -2 /DR 6. ;( < /GF.