GITA VIKRAM KOTHARI, MUMBAI V. ITO CIR 16(3)(1), MUMBAI

ITA 6047/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8303 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 28-02-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 16-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R BAIWAR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI P.M. JAGTAP, AM AND SHRI V.DURGA RAO, JM I.T.A.NO. 6047/MUM/2009 ASSESSMENT YEAR : 2006-07 MRS. GITA VIKRAM KOTHARI, HARI NIVS, 1 ST FLOOR, 19, MATHEW RD., MUMBAI 400 004. PAN: AABPK 9569 J VS. THE INCOME-TAX OFFICER-16(3)(1), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JITENDRA JAIN RESPONDENT BY : SHRI A.R. BAIWAR O R D E R PER P.M. JAGTAP, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XVII, MUMBAI, DATED 26.08.2009 FOR THE ASSESSMENT YEAR 2006-07. 2. THE MAIN GRIEVANCE OF THE ASSESSEE AS PROJECTED IN THE GROUNDS RAISED IN THIS APPEAL IS THAT THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OF SHORT TERM CAPITAL LOSS OF RS.30,88,577/- MADE BY T HE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSING OFFICER HAS ARRIVED AT A JUSTIFIED CONCLUSION THAT THE PURCHASE TRANSACTIONS WERE NOT SUPPORTED BY ENOUGH EVIDENCES. 3. AT THE TIME OF HEARING BEFORE US, THE ASSESSEE H AS MOVED AN APPLICATION SEEKING ADMISSION OF ADDITIONAL EVIDENCE IN THE FOR M OF CONFIRMATION ISSUED BY M/S. VIJAY BHAGWANDAS & CO. IT IS SUBMITTED THAT THE IS SUE INVOLVED IN THE PRESENT APPEAL IS RELATED TO THE CLAIM OF THE ASSESSEE FOR SHORT-TERM CAPITAL LOSS, WHICH HAS BEEN DISALLOWED BY THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) DESPITE THE FACT THAT ASSESSEE HAD FURNISHED THE BROKERS CONTRA CT NOTICE, BANK STATEMENT, ETC. TO PROVE THE GENUINENESS OF THE RELEVANT TRANSACTIO NS. IT IS SUBMITTED THAT THE ASSESSEE, HOWEVER, COULD NOT OBTAIN AND FILE THE CO NFIRMATION OF THE CONCERNED ITA NO. 6047/M/2009 MRS. GITA VIKRAM KOTHARI 2 BROKER, M/S. VIJAY BHGWANDAS & CO,. DESPITE HER BE ST EFFORTS. IT IS SUBMITTED THAT THE SAID CONFIRMATION OBTAINED ON 5 TH JUNE, 2010, HOWEVER, WAS FILED BEFORE THE LEARNED CIT(A) DURING THE COURSE OF APPELLATE PROCE EDINGS, BUT HE FAILED TO TAKE ANY COGNIZANCE OF THE SAID ADDITIONAL EVIDENCE. IT IS OBSERVED IN THIS REGARD THAT ALTHOUGH THE SAID ADDITIONAL EVIDENCE WAS FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) VIDE LETTER DATED 125.06.2009, NO APPLICATIO N SEEKING ADMISSION THEREOF WAS SEPARATELY FILED BY THE ASSESSEE AS PER RULE 46 A OF THE INCOME-TAX RULES. IT APPEARS THAT THE LEARNED CIT(A), THEREFORE, HAD NO OCCASION TO CONSIDER THE ADMISSIBILITY OF THE SAID ADDITIONAL EVIDENCE AND I TS RELEVANCE OR SIGNIFICANCE TO SUPPORT AND SUBSTANTIATE THE CASE OF THE ASSESSEE O N MERIT. WE, THEREFORE, DEEM IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE T O SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND REMIT THE MATTER BACK TO HIM WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER GIVING THE ASSESSEE AN OPPORTUNIT Y TO FILE AN APPLICATION SEEKING ADMISSION OF CONFIRMATION OF M/S. VIJAY BHAGWANDAS & CO., AS ADDITIONAL EVIDENCE. THE ASSESSEE IS ALSO DIRECTED TO RENDER ALL THE POS SIBLE CO-OPERATION TO THE LEARNED CIT(A) TO DISPOSE OF THE APPEAL. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 9 TH DAY OF MARCH, 2011. SD. SD. (V.DURGA RAO) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 9 TH MARCH, 2011. KN\ COPY TO: 1. THE ASSESSEE 2. THE ITO, WARD 16(3)(1), MUMBAI 3. THE CIT-16, MUMBAI 4. THE CIT(A)-XVII, MUMBAI 5. THE DR G BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI