Appeal details
Counselvise Citation
[2021] 107 COUNSELVISE.COM (IT) 2302 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 year(s) 8 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
25-10-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2003-2004
Appeal Filed On
27-01-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.381/DEL./2016 (ASSESSMENT YEAR : 2003-04) MS. POONAM RANI SINGH, VS. ITO, WARD 24 (1), C/O P.K. AGARWAL & CO., NEW DELHI. CHARTERED ACCOUNTANTS, FLAT NO.50, AKSHARDHAM APTT., POCKET 3, SECTOR 19, DWARKA, NEW DELHI 110 075. (PAN : AAFPR1019D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.C. YADAV, ADVOCATE REVENUE BY : SHRI PARIKSHIT SINGH, SENIOR DR DATE OF HEARING : 25.10.2021 DATE OF ORDER : 25.10.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : ASSESSEE BY FILING APPLICATION FOR CONDONATION OF DELAY SOUGHT TO CONDONE THE DELAY OF 600 DAYS IN FILING T HE APPEAL ON THE GROUND THAT ASSESSEE BEING NOT CONVERSANT IN THE TA X MATTER WAS UNDER BONAFIDE BELIEF THAT COMPLETE RELIEF HAS BEEN GRANTED BY THE LOWER REVENUE AUTHORITIES AND WHEN CONFRONTED BY TH E RECOVERY ITA NO.381/DEL./2016 2 OFFICER WITH DEMAND SHE CAME TO KNOW THAT HER APPEA L WAS PARTLY ALLOWED. KEEPING IN VIEW THE BONAFIDE OF THE ASSES SEE AS NO ADVERSE FACTS TO THE CONTENTION OF THE ASSESSEE HAS COME ON RECORD, WE FIND SUFFICIENT CAUSE FOR NOT FILING THE APPEA L WITHIN LIMITATION, HENCE DELAY OF 600 DAYS IS CONDONED AND APPEAL IS BEING ACCORDINGLY HEARD ON MERIT. 2. APPELLANT, MS. POONAM RANI SINGH (HEREINAFTER RE FERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOU GHT TO SET ASIDE THE IMPUGNED ORDER DATED 03.12.2013 PASSED BY THE C OMMISSIONER OF INCOME-TAX (APPEALS)-XVII, NEW DELHI QUA THE ASS ESSMENT YEAR 2003-04 ON THE GROUNDS INTER ALIA THAT :- 1. THE ORDER OF CIT (A) IS BAD IN LAW AND ON FACTS . 2. ON THE FACTS AND UNDER CIRCUMSTANCES OF THE CASE , THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ORDER OF TH E AO WHEREIN THE AO HAS ENHANCED THE INCOME OF ASSESSEE FROM RS.57,87,990/- TO RS.72,66,525/- WITHOUT ANY BASIS. 3. THE LD CIT (A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS.30,17,661/- MADE BY THE AO UNDER SECTION 68, THE CIT(A) HAS GROSSLY ERRED IN DISCARDING THE CLAIM OF THE AS SESSEE VIS-A- VIS LONG TERM CAPITAL GAIN ON THE SALE OF SHARES OF LISTED COMPANY. 4. THE LD CIT(A), WHILE AFFIRMING THE ADDITION OF RS.30,17,661/- HAS FURTHER ERRED IN OBSERVING THAT THERE ARE CONTRADICTIONS IN THE SUBMISSIONS OF THE ASSESSEE V IS-A-VIS THIS ADDITION. 5. THE LD CIT(A) HAS ERRED IN NOT APPRECIATING THAT PURCHASE PRICE OF THE SHARES IN RESPECT OF THE ISSU E OF CAPITAL GAIN HAS BEEN ACCEPTED BY THE DEPARTMENT. 6. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.9,54,500, CIT(A) HAS COMPLETELY ITA NO.381/DEL./2016 3 IGNORED THE SUBMISSIONS AND RELEVANT DOCUMENTS IN T HIS REGARD. 7. THE LD CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS.1,50,000/- ON ACCOUNT OF INTERES T PAID TO ICICI BANK, IN RESPECT OF HOME LOAN. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE HAS FILED RETURN DECLARING TOTAL INCOME OF RS.57,87,900/- HAVING INCOME FROM SALARY, INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. AO N OTICED THAT ASSESSEE HAS DECLARED LONG TERM CAPITAL GAIN (LTCG) OF RS.28,88,791.50 ON SALE OF 31,800 SHARES OF SUMA FI NANCE LIMITED FOR A SUM OF RS.30,17,661/- HAVING BEEN PURCHASED O N 02.04.2001 FROM M/S. S.J. CAPITAL LIMITED. AO AFTER CALLING I NFORMATION U/S 133(6) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) FROM THE SHARE BROKER, M/S. DIWAKER SECURITIES LIMITED THRAS HED THE FACTS AT LENGTH AND PROCEEDED TO CONCLUDE THAT ASSESSEE IN C OLLUSION WITH BROKER ENTERED INTO A BOGUS TRANSACTION IN ORDER TO REDUCE THE INCIDENCE OF TAX WHICH SHE OTHERWISE WOULD HAVE TO PAY AND ALSO RELIED UPON THE REPORT IN THE ECONOMIC TIMES THAT , THERE ARE PEOPLE WHO ARE GENERATING LONG TERM CAPITAL GAINS B Y FABRICATING THE DOCUMENTS AND SHOWING THE RATE OF THE DEFUNCT O R ORDINARY COMPANIES HAVING NO WORTH AT FABRICATED PRICES. THE ASSESSEE HAS CONVENIENTLY ADOPTED THIS SYSTEM AND EARNED THE BOGUS LTCG. CONSEQUENTLY, AO REJECTED THE PLEA OF EARNING LTCG BY THE ITA NO.381/DEL./2016 4 ASSESSEE AND TREATED THE ENTIRE SALE CONSIDERATION OF RS.30,17,661/- AS ASSESSEES INCOME FROM UNDISCLOSED SOURCES. 4. AO ALSO MADE DISALLOWANCE OF RS.1,50,000/- ON AC COUNT OF INTEREST PAID TO ICICI BANK IN RESPECT OF HOME LOAN AND THEREBY FRAMED THE ASSESSMENT ON A TOTAL INCOME OF RS.72,66 ,525/-. 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS PARTLY ALLOWED THE APPEAL . FEELING AGGRIEVED BY THE ORDER PASSED BY THE LD. CIT (A), T HE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PR ESENT APPEAL. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. LD. AR FOR THE ASSESSEE CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT AO HAS CONDUCTED THE ENTI RE ENQUIRY IN THIS CASE ON THE BASIS OF WRONG DATE OF PURCHASE OF SHARES I.E. 15.04.2002 WHEREAS ASSESSEE HAS PURCHASED THE SHARE S ON 02.04.2001 FROM MAGADH STOCK EXCHANGE (MSE) AND ACC ORDINGLY SHOWN THE PURCHASE IN THE INVESTMENT SCHEDULE OF BA LANCE SHEET ON 2002-03 AND FOR THE SAID YEAR, ASSESSMENT WAS FRAME D U/S 143(3) OF THE ACT; THAT IN THE IMPUGNED YEAR, LTCG WAS NOT EX EMPT RATHER SAME WAS TAXABLE AT 15% AND ACCORDINGLY ASSESSEE HA S NOT CLAIMED ITA NO.381/DEL./2016 5 ANY EXEMPTION U/S 10(38) OF THE ACT; THAT AO HAS OV ERLOOKED THE FACT THAT THE ISSUE AS TO THE PURCHASE OF SHARES HA S ALREADY BEEN EXEMPTED U/S 143(3) OF THE ACT IN AY 2002-03; THAT LD. CIT (A) HAS DECIDED THE ISSUE BY CALLING THE REMAND REPORT FROM THE AO WHO HAS REITERATED THE ASSESSMENT ALREADY FRAMED BY HIM; THAT THE AO HAS NOT CALLED UPON THE ASSESSEE TO EXPLAIN AS T O THE SECOND ISSUE OF RS.9,54,500/- BEING THE STAMP PAPER DUTY P AID BY THE ASSESSEE FOR PURCHASE OF THE PROPERTY; THAT SO FAR AS THIRD ISSUE IS CONCERNED, ASSESSEE CLAIMED DEDUCTION TO THE TUNE O F RS.3,55,170/- . BUT LD. CIT (A) HAS ALLOWED DEDUCTION TO THE TUNE OF RS.1,50,000/- WHEREAS THE ENTIRE DEDUCTION BEING CAPITAL LOSS TO THE ASSESSEE WAS ALLOWABLE. 8. PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) PARTICULARLY PARA 5.4 SHOWS THAT ALL THE AFORESAID CONTENTIONS RAISED BY THE ASSESSEE WERE RAISED, QUA WHICH REMAND REPOR T WAS CALLED FROM THE AO WHO HAS REITERATED HIS EARLIER VERSION. WE ARE OF THE CONSIDERED VIEW THAT ENQUIRY HAS BEEN INITIATED BY THE AO ON WRONG FACTS WHICH HAVE FURTHER BEEN RATIFIED BY THE LD. CIT (A) BECAUSE WHEN THE ISSUE AS TO THE PURCHASE AND SALE OF SHARES IN QUESTION HAS ALREADY BEEN DECIDED IN AY 2002-03 AND ASSESSEE HAS NOT CLAIMED ANY EXEMPTION U/S 10(38) OF THE ACT RAT HER PAID THE TAX ON LTCG @ 15%, THE ENTIRE ISSUE IS REQUIRED TO BE R EVISITED BY THE ITA NO.381/DEL./2016 6 AO FOR COMPLETE ADJUDICATION OF THE CONTROVERSY AT HAND. AO HAS ALSO NOT PROVIDED OPPORTUNITY OF BEING HEARD TO THE ASSESSEE QUA THE ADDITION OF RS.9,54,000/- BEING THE STAMP DUTY PAID BY THE ASSESSEE ON PURCHASE OF THE PROPERTY AND QUA ADDITI ON OF RS.1,50,000/- BY WAY OF DISALLOWANCE OF THE DEDUCTI ON CLAIMED BEING CAPITAL LOSS TO THE ASSESSEE.. CONSEQUENTLY, THE CASE IS REMITTED BACK TO THE AO FOR DE NOVO ASSESSMENT AFTE R PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. RESULT ANTLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF OCTOBER, 2021 AFTER THE CONCLUSION OF THE VIRTUAL HEARING. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 25 TH DAY OF OCTOBER, 2021 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XVII, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.
