SHARMILA N PATEL, MUMBAI V. ITO 14(2)3, MUMBAI

ITA 4618/MUM/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1552 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 17-09-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 08-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Income from undisclosed sources; Share purchase agreement
• Section: 143(3); 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E,MUM BAI BEFORE SHRI P.K.BANSAL, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.4618/MUM/2011 FOR (ASSESSMENT YEAR : 2003-04 ) MRS. SHARMILA N. PATEL 144/146, KALBADEVI ROAD, OPP. CO TTON EXCHANGE BUILDING, MUMBAI-400002 PAN: AIOPP8852H VS. ITO 14(2)(3), EARNEST HOUSE, NARIMAN POINT, MUMBAI-400021. (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. AASIFA KHAN(AR ) REVENUE BY : SHRI B.S. BIST (DR ) DATE OF HEARING : 20.12.2016 DATE OF PRONOUNCEMENT : 20.12.2016 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JM: 1. THIS APPEAL FILED BY ASSESSEE U/S 253 OF THE INCOME -TAX ACT (ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) [FOR SHORT THE CIT(A)] 25, MUMBAI DATED 23.11.2009 FOR ASSESSMENT YEAR (AY) 2003-04. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-25 ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THAT THE ASS ESSMENT ORDER PASSED U/S. 143(3) IN WITHIN THE STATUTORY PERIOD AND HENC E CANNOT BE TREATED AS NULL AND VOID. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-25 ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE DISALLOW ANCE OF EXPENSES OF RS. 1,91,458/-. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-25 ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 8,00,000/- MADE U/S 68 BEING GIFT RECEIVED FROM MR. MAHESH ASWANI. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2 5 ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 19,89,015/- AS INCOME FROM UNDISCLOSED SOURCES U/S. 56 BEING LONG TERM CAPITAL GAIN AS SALE OF SHARES. 2 ITA NO. 4618/M/2011 MRS. SHARMILA N. PATEL. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 30.10.2003 DECLARING TOTAL INCOME AT RS. 29,31,363/ -. THE ASSESSMENT WAS COMPLETED U/S. 143(3) ON 30.03.2006. WHILE MAKING A SSESSMENT, THE ASSESSING OFFICER (AO) BESIDES OTHER ADDITION/DISALLOWANCE TR EATED THE LONG TERM CAPITAL GAIN (LTCG) OF RS. 19,86,015/- UNDER THE HEAD INCO ME FROM OTHER SOURCES. ON APPEAL BEFORE THE LD. CIT(A), THE ORDER OF AO WAS U PHELD. THUS, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD LD AR FOR THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LD. AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSEE AT T HE OUTSET MADE A STATEMENT THAT SHE IS NOT PRESSING GROUND NO(S). 1 TO 3 RAISED IN THE PRESENT APPEAL. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) HAS NO OBJECTION. THUS, THE GROUND NO. 1 TO 3 ARE TREATED AS DISMISSED AS NOT PRESSED. 4. GROUND NO.4 RELATES TO THE TREATMENT OF LTCG ON SA LES OF SHARES OF RS. 19,89,105/- UNDER THE HEAD INCOME FROM OTHER SOURCES. THE LD . AR OF THE ASSESSEE ARGUED THAT ASSESSEE PURCHASED SHARES OF MEDIA METRIX WORL DWIDE LTD. ON 11.09.2001 AND SAME WAS SOLD BY ASSESSEE ON 02.12.2008 AND LTCG AR ISE FROM SALE OF SHARES OF RS. 19,89,015/-. THE AO DISALLOWED THE CLAIM OF THE ASS ESSEE ON THE BASIS OF REPORT IN VARIOUS NEWSPAPERS. THE ASSESSEE DURING THE ASSESSM ENT FURNISHED THE COPY OF PURCHASE BILL, SALES BILL, DE-MATE ACCOUNT ALONG WI TH SHARE CERTIFICATE AND CONFIRMATION OF THE COMPANIES TO PROVE THE GENUINEN ESS OF THE TRANSACTION. THE AO RELIED UPON THE LETTER DATED 04.02.2006 ALLEGEDLY R ECEIVED FROM THE BOMBAY STOCK EXCHANGE. THE SAID LETTER WAS NEVER BROUGHT TO THE NOTICE OF ASSESSEE. THE AO USED THE INFORMATION RECEIVED FROM THIRD PARTY WITHOUT G IVING AN OPPORTUNITY TO COUNTER THE SAME. THE ASSESSEE DEMANDED THE COPY OF THE SAI D LETTER BUT THE SAME WAS NOT SUPPLIED. DURING THE COURSE OF ARGUMENTS BEFORE US, THE LD. AR OF THE ASSESSEE FILED COPY OF LETTER DATED 16.03.2009 ISSUED BY AO, INFOR MING THE REPRESENTATIVE/C.A. OF ASSESSEE, THAT THE DOCUMENT ARE NOT AVAILABLE (LET TER OF BOMBAY STOCK EXCHANGE DATED 14.02.2006) IN THE RECORD. THE LD. AR OF THE ASSESSEE FURTHER ARGUED THAT LD. CIT(A) HAS NOT CONSIDERED THE SUFFICIENT EVIDENCE F ILED BEFORE HIM AND WITHOUT GIVING ANY FINDING ON THE DOCUMENTARY EVIDENCE FILE D BY THE ASSESSEE, CONFIRMED THE ORDER OF AO. ON THE OTHER HAND, LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF 3 ITA NO. 4618/M/2011 MRS. SHARMILA N. PATEL. AUTHORITIES BELOW AND WOULD ARGUE THAT THE ORDER OF THE AUTHORITIES DOES NOT REQUIRE ANY INTERFERENCE. 5. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDER OF AUTHORITIES BELOW. WE HAVE CONSIDERED THE CONTENTS OF LETTER DATED 16.03.2009 FILED BY LD. AR OF THE ASSESSEE BEFORE US. WE HAVE FURTHE R SEEN THAT NEITHER THE AO NOR THE LD. CIT(A) GAVE ANY FINDING ON THE VARIOUS DOCUMENT FURNISHED BY ASSESSEE DURING THE ASSESSMENT AS WELL AS BEFORE THE FIRST APPELLAT E AUTHORITY (FAA). CONSIDERING THE PECULIAR CIRCUMSTANCES OF THE CASE, WE DEEM IT APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF AO TO DECIDE IT AFRESH. NEEDLESS TO SAY THAT AO SHALL AFFORD THE FAIR AND REASONABLE OPPORTUNITY TO THE ASSESSEE AND WILL SUP PLY THE INFORMATION RECEIVED FROM THE BOMBAY STOCK EXCHANGE OR ANY INFORMATION IN POS SESSION OF AO. THE AO IS ALSO DIRECTED TO CONSIDER THE DOCUMENTARY EVIDENCE FURNISHED BY ASSESSEE. THE AO AFTER CONSIDERING THE DOCUMENTARY EVIDENCE WILL PA SS THE ORDER IN ACCORDANCE WITH LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DECEMBER, 2016. SD/- SD/- (P.K.BANSAL) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 20/12/2016 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/