KUSUM SHARMA, NOIDA V. ITO, WARD- 2(1), NOIDA

ITA 7543/DEL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6941 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CITA ON IN RELATION TO A Y
• Assessee Lawyers: IS DIRECTED AGAINS T PASSED
• Keywords: Opportunity of being heard
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE MR. R.S. SYAL, VICE PRESIDENT ITA NO. 7543/DEL/2017 ASSESSMENT YEAR: 2009-10 MRS. KUSUM SHARMA, FLAT NO. 207, 2 ND FLOOR, MAHAGUN MAESTRO, PLOT NO. 21A, BLOCK- F, SECTOR-50, NOIDA-201301 VS. ITO, WARD-2(1), NOIDA PAN : ASNPS6250R (APPELLANT) (RESPONDENT) - O R D E R PER R.S.SYAL, V.P.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 25.9.2017 IN RELATION TO THE A.Y. 2009-10 . 2. THE ASSESSEE IS AGGRIEVED AGAINST THE ADDITION O F RS. 14,99,750/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SALE PROCEED S OF JEWELLERY. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT DU RING THE YEAR UNDER CONSIDERATION THE ASSESSEE PURCHASED RESIDENTIAL FL AT FOR A SUM OF RS. 68.25 LAC AND SUBMITTED THE SOURCES OF SUCH INVESTMENT, T HE DETAILS OF WHICH HAVE APPELLANT BY SH. ASHWANI KUMAR GAUTAM, CA RESPONDENT BY SH. ATIQ AHMED, SR. DR DATE OF HEARING 25.7.2018 DATE OF PRONOUNCEMENT 26.7.2018 2 ITA NO.7543 /DEL/2017 BEEN ENUMERATED ON PAGE 2 OF THE ASSESSMENT ORDER. ONE OF SUCH SOURCES IS A SUM OF RS.14,99,750/-, BEING, SALE OF JEWELLERY. THE AO DID NOT DISPUTE THE GENUINENESS OF OTHER SOURCES. HE REQUIRED THE A SSESSEE TO FURNISH THE DETAILS OF THE PARTY TO WHOM SUCH JEWELLERY AMOUNTI NG TO RS. 14.99 LAC WAS SOLD. THE ASSESSEE SUBMITTED THAT THE JEWELLERY WAS SOLD TO M/S BRIJ MUKUND PREM PRAKASH SARAF VIDE PURCHASE BILL NOS. 20/22 DA TED 22/29.3.2009. PHOTOCOPIES OF THE PURCHASE BILLS WERE ALSO FILED. IN ORDER TO BUY PEACE, THE ASSESSEE SURRENDERED THE AMOUNT OF SALE PROCEEDS OF JEWELLERY WITH A REQUEST TO ALLOW THE BENEFIT OF INDEXATION ON THE SAME AS P ER THE PROVISIONS OF THE ACT. THE AO MADE THE ADDITION OF RS.14,99,750/- UND ER SECTION 69 OF THE ACT. THE LEARNED CIT(A) UPHELD THE ASSESSMENT ORDER ON THIS COUNT. 4. I HAVE HEARD BOTH THE SIDES AND PERUSED THE RELE VANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ASSESSEE GAVE EXPLANATION A BOUT THE SALE OF JEWELLERY AMOUNTING TO RS.14.99 LAC IN TERMS OF PURCHASE BILL S OF M/S BRIJ MUKUND PREM PRAKASH SARAF. THE ASSESSEE AGREED TO ADDITIO N ON THIS COUNT WITH A REQUEST TO ALLOW THE BENEFIT OF INDEXATION ON THE S AME AS PER THE INCOME TAX ACT. THE AO DID NOT DISPUTE THE FACTUM OF SALE HAV ING BEEN MADE BY THE ASSESSEE. NOR DID HE CARRY OUT ANY INVESTIGATION TO FALSIFY THE ASSESSEES CLAIM OF HAVING ACTUALLY SOLD THE JEWELLERY TO M/S BRIJ MUKUND PREM 3 ITA NO.7543 /DEL/2017 PRAKASH SARAF. WHEN THE ASSESSEE CAME OUT WITH A CON DITIONAL SURRENDER, IT WAS THE DISCRETION OF THE AO TO ACCEPT OR REJECT TH E SAME IN TOTALITY. HAVING ACCEPTED THE SAME, IT BECAME OBLIGATORY ON THE PART OF THE AO TO ADD THE AMOUNT OF CAPITAL GAINS ARISING FROM THE SALE OF JE WELLERY AFTER ALLOWING INDEXATION AND NOT TREAT THE GROSS AMOUNT OF RECEIP T AS CHARGEABLE TO TAX. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REMIT T HE MATTER TO THE FILE OF THE AO FOR CALCULATING THE AMOUNT ON CAPITAL GAIN ON SA LE OF JEWELLERY AS PER THE PROVISIONS OF CHAPTER IV-E OF THE ACT AFTER ALLOWIN G A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 26.07.2018. ) SD/- (R.S. SYAL) VICE PRESIDENT N. MISHRA) DT.26.07.2018 SH COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI 4 ITA NO.7543 /DEL/2017 DATE 1. DRAFT DICTATED ON 26.7.2018 PS 2. DRAFT PLACED BEFORE AUTHOR PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 7.2 018 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 7.2018 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 11. DATE OF UPLOADING 7.2018 *