Shaleen Khandelwal, Indore V. ITO-5(2), Indore

ITA 421/Ind/2019

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9041 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 02-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Deduction for capital gain; Set aside; Bogus

Judgement Text

I.T.A. NO.421 OF 2-019 SMC - SHALLEN KHANDELWAL 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE VIRTUAL HEARING BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.421/IND/2019 ASSESSMENT YEAR: 2015-16 SHALEEN KHANDELWAL INDORE / VS. ITO-5(2), INDORE (APPELLANT) (REVENUE ) P.A. NO. BHOPK 8925 N APPELLANTS BY SHRI PANKAJ SHAJ, CA REVENUE BY SHRI K.G. GOYAL , SR. DR DATE OF VIRTUAL HEARING: 05.11.2020 DATE OF PRONOUNCEMENT: 18 .12.2020 / O R D E R THESE APPEAL IS FILED BY THE ASSESSEES AGAINST THE ORDERS OF LD. CIT(APPEALS)-2, INDORE DATED 10.1.2019 CHALLENGING THE CONFIRMATION OF DISALLOWANCE OF THE CLAIM OF LONG T ERM CAPITAL GAIN EXEMPTION U/S 10(38) OF THE I.T. ACT. I.T.A. NO.421 OF 2-019 SMC - SHALLEN KHANDELWAL 2 2. FACTS, IN BRIEF, AS NOTED BY THE AO ARE THAT TH E ASSESSEE HAD SOLD SHARES THROUGH SOME SPECIFIED SECURITIES AND H AD EARNED LONG TERM CAPITAL ON THE SAME. THE AO NOTED THAT THE ASS ESSEE CLAIMED EXEMPTION U/S 10(38) OF THE I. T. ACT. DURING THE Y EAR UNDER CONSIDERATION, THE ASSESSEE HAD PURCHASED SHARES OF M/S. KAPPAC PHARMA @RS.2 PER SHARE THROUGH M/S. SWASTIKA INVEST MENT LTD., INDORE, THEREFORE, THE STATEMENT OF THE ASSESSEE WA S RECORDED WHEREIN THE ASSESSEE SUBMITTED THAT HE HAD PURCHASE D THE SHARES ON THE ADVICE OF A PERSON WHOSE NAME WAS KNOWN TO H IM, HOWEVER, HE HAD NO KNOWLEDGE OF THE COMPANY. THE AO NOTED TH AT IN THE SHARES OF THE SAID COMPANY, HUGE GROWTH WAS RECORDE D IN JUST A ONE YEAR WHICH WAS NOT ONLY UNREALISTIC BUT ALSO WAS CL EARLY FABRICATED THROUGH DUBIOUS MANIPULATIONS. CONSIDERING THESE FA CTS AND TREATING THE STATEMENT OF THE ASSESSEE AS UNEXPLAIN ED, THE AO MADE AN ADDITION OF RS.15,22,500/- ON ACCOUNT OF BOGUS L ONG TERM CAPITAL GAIN. 3. FELT AGGRIEVED, THE ASSESSEE PREFERRED AN APPEA L BEFORE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBU NAL. BEFORE ME, I.T.A. NO.421 OF 2-019 SMC - SHALLEN KHANDELWAL 3 LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADD ITION IS UNJUSTIFIED AS LD. CIT(A) ERRED IN NOT PROVIDING OR CONFRONTING THE ALLEGED INFORMATION, THIRD PARTY MATERIAL AND STATE MENTS AND THE SHARES WERE SOLD ON RECOGNIZED STOCK EXCHANGE, THER EFORE, SAME CANNOT BE DOUBTED. FURTHER, IN ALTERNATIVELY, THE L D. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE LD. CIT(A) DID NOT GRANT THE CREDIT OF RS.6,95,276/- PAID UNDER THE INCOME DISCLOSURE S CHEME 2016 IN THE YEAR UNDER CONSIDERATION WHEREIN THE CORRESPOND ING INCOME DECLARED HAS BEEN ADDED TO THE INCOME OF THE ASSESS EE WHICH IS UNJUSTIFIED. 5. ON THE OTHER HAND, LD. SR. DR RELIED UPON THE OR DER OF THE REVENUE AUTHORITIES. 6. I HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. I FIND THAT THE ASSESSEE HAS FILED BEFORE ME THE FORM NO.4 ISSUED BY PR. CIT-2, INDORE ACCEPTING THE DECLARATI ON UNDER INCOME DECLARATION SCHEME AND ALSO A LETTER FROM PCIT-2 RE QUIRING THE ASSESSEE TO PAY THE INSTALLMENT OF TAX REMAINING TO BE PAID UNDER THE INCOME DECLARATION SCHEME. BEFORE ME, LD. COUNS EL FOR THE ASSESSEE HAS CONTENDED THAT THE CREDIT OF RS.6,95,2 76/- PAID UNDER I.T.A. NO.421 OF 2-019 SMC - SHALLEN KHANDELWAL 4 THE INCOME DISCLOSURE SCHEME 2016 IN THE YEAR UNDER CONSIDERATION HAS NOT BEEN GRANTED BY THE LD. CIT(A ). CONSIDERING THESE FACTS AND THE CONTENTIONS OF THE LD. COUNSEL FOR THE ASSESSEE, I DEEM IT PROPER TO SET ASIDE THE ORDERS OF THE REVEN UE AUTHORITIES. THE AO WOULD VERIFY THESE FACTS AND SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND THEREAFTER PASS THE ORDER AFRE SH. NEEDLESS TO MENTION HERE THAT ADEQUATE OPPORTUNITY OF BEING HEA RD SHALL BE PROVIDED TO THE ASSESSEE AND THE ASSESSEE IS ALSO A T LIBERTY TO FILE ANY FURTHER EVIDENCE, IF ANY, IN SUPPORT OF THE CLA IM. 7. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 18.12.20 20. SD/- (KUL BHARAT) JUDICIAL MEMBER INDORE; DATED : 18/12/2020 1VYAS! COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE