Rameshwar Prasad Gupta, Kanpur V. Astt. Commissioner of Income Tax-5, Kanpur

ITA 398/LKW/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1137 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 19-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S S GUPTA
• Keywords: Business income; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 398/LKW/2015 ASSESSMENT YEAR: 2005 - 06 RAMESHWAR PRASAD GUPTA F - 49, BABA BHAWAN, SHA NTI NAGAR KANPUR V. ASSTT. CIT - 5 KANPUR T AN /PAN : AAWPG6888J (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI S.S. GUPTA, C.A. RESPONDENT BY: SHRI RAJIV KUMAR, D.R. DATE OF HEARING: 05 02 201 8 DATE OF PRONOUNCEMENT: 07 0 2 201 8 O R D E R PER P ARTHA SA RATHI CHAUDHURY, J.M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A) - II, KANPUR DATED 23/3/2015 ON THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LD. COMMISSIONER OF INCOME T AX ( A PPEALS) II , K ANPUR HAS ERRED IN DISMISSING T HE APPEAL 2. THAT T H E ID. COMMISSIONER OF INCOME T AX ( A PPEALS) II , K ANPUR HAS ERRED IN NOT CONSIDERING THE ADJOURNMENT APPLICATIONS AS WELL AS SUBMISSIONS MADE VERBALLY AS WELL AS IN WRITING WHILE DECIDING THE APPEAL 3. THAT THE LD. COMMISSIONER OF INCOME T AX ( A PPEALS) II , K ANPUR AS ERRED IN HOLDING THAT ASSESSEE HAS DONE THE BUSINESS OF SHARES AND IN HOLDING THAT THE INCOME WAS TAXABLE AS BUSINESS INCOME AND NOT AS INCOME FROM CAPITAL GAINS AS CLAIMED BY THE ASSESSEE. ITA NO.398/LKW/2015 PAGE 2 OF 4 4. THAT THE LD. COMMISSIONER OF INCOME T AX ( A PPEALS) II , K ANPUR HAS ERRED IN HOLDING THAT A SSESSING O FFICER HAS RIGHTLY TAXED THE INCOME ON SALE OF INVESTMENT IN SHARES AS BUSINESS INCOME AND HAS WAS ALSO ERRED IN RELYING ON VARIOUS CASE LAWS WHICH WERE IN APPLICABLE TO THE FACTS THE CASE. 5. THAT THE LD. COMMISSIONER OF INCOME T AX ( A PPEALS) II , K ANPUR HAS ERRED IN UPHOLDING THE ACTION OF LD. ASSESSING OFFICER, WHICH DECISION WAS TAKEN WITH PREDETERMINED MIND TO INCREASE THE TAX INCIDENCE WHICH MAY BE SHOW CASED WITH THE FACT THAT IN 1ST HALF O F THE YEAR, TRANSACTIONS OF SAME NATURE WAS TREATED AS INCOME FROM CAPITAL GAINS. 6. WITHOUT PREJUDICE TO ABOVE, THE LD. COMMISSIONER OF INCOME T AX ( A PPEALS) II , K ANPUR HAS ERRED IN IGNORING THE FACTS AND CLAIMS ON RECORD THAT IF IN CASE, INCOME ON SALE OF INVESTMENT IN SHARES ARE TO BE TREATED AS BUSINESS INCOME, THEN ALL ALLOWANCES LIKE CORRECT VALUATION OF SHARES AS ON THE CLOSING DATE AS WELL AS S . T. T. AND OTHER EXPENDITURE INCURRED BY THE ASSESSEE HAS TO BE ALLOWED FROM THE INCOME OF THE ASSESSEE. 7. THAT THE SUBMISSIONS MADE BEFORE THE LD . A SSESSING O FFICER AS WELL AS BEFORE LD, COMMISSIONER OF INCOME T AX ( A PPEALS) II , K ANPUR MAY KINDLY BE CONSIDERED AS PART OF THESE GROUNDS OF APPEAL. 8. THAT THE LD. COMMISSIONER OF INCOME T AX ( A PPEALS) II , K ANPUR H AS ERRED IN NOT APPRECIATING THE INTENTION OF ASSESSEE WHILE ENTERING INTO IMPUGNED TRANSACTIONS AND OTHER SURROUNDING CIRCUMSTANCES. 9. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE APPEAL AS WELL AS ASSESSMENT ORDER IS BAD IN LAW AS WELL AS ON F ACTS. 10. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CASE, APPELLANT CRAVES LEAVE TO INTRODUCE, WITHDRAW OR MODIFY ANY GROUND OF APPEAL WITH THE KIND PERMISSIONS OF YOUR HONOURS. ITA NO.398/LKW/2015 PAGE 3 OF 4 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS FURTHER CONTENDED THAT ASSESSEE HAD MOVED ADJOURNMENT APPLICATION, BUT THE LD. CIT(A) WITHOUT ALLOWING PROPER OPPORTU NITY AND CONSIDERING THE WRITTEN SUBMISSIONS FILED BEFORE HIM , DISMI SSED THE APPEAL OF THE ASSESSEE EX - PARTE. HE PRAYED THAT, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR RE - ADJUDICATION OF THE APPEAL. 3 . T HE LD. D.R. HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4 . WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIVAL CONTENTIONS AND WE FIND THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX - PARTE QUA THE ASSESSEE. SINCE THE LD. CIT(A) HAS DISPOSED OF THE AP PEAL WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE ONE MORE OPPORTUNITY BE AFFORDED TO THE ASSESSEE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO H IS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUES AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO EXTEND ALL SORT OF CO - OPERATION AND PUT HIS APPEARANCE BEFORE THE LD. CIT(A) AS AND WHEN DESIRED. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07 / 0 2 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7 TH FEBR UARY , 201 8 JJ: 0502 ITA NO.398/LKW/2015 PAGE 4 OF 4 COPY FOR WARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR