Rishikumar Rajnarayan Bagla (HUF), Aurangabad V. Income-tax Officer, Ward - 3 (3), Aurangabad

ITA 785/PUN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9222 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-09-2019
• Assessment Year: 2015-2016
• Appeal Filed On: 20-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Keywords: Share purchase agreement; Opportunity of being heard; Principle of natural justice; Additional evidence; Capital Gains

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.785/PUN/2019 / ASSESSMENT YEAR : 2015-16 RISHIKUMAR RAJNARAYAN BAGLA (HUF), GUT NO.40, GOLWADI, PAITHAN ROAD, AURANGABAD-431001. PAN : AAFHR1225K . /APPELLANT VS. ITO, WARD-3(3), AURANGABAD. . / RESPONDENT / APPELLANT BY : SHRI RAJIV THAKKAR, AR / RESPONDENT BY : SHRI SANJEEV GHEI, DR / DATE OF HEARING : 26.09.2019 / DATE OF PRONOUNCEMENT: 01.10.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-2, AURANGABAD DATED 01.04.2019 FOR THE ASSESSMENT YEAR 2015-16. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE LEARNED TAXING AUTHORITIES BELLOW ERRED IN ASSESSING THE GAIN ON SALE OF EQUITY SHARES AS INCOME FROM OTHER SOURCES INSTEAD OF LONG TERM CAPITAL GAIN AT RS. 28,41,620/-. CONSIDERING THE FACTS OF THE CASE AND PROVISIONS OF LAW, THE GAIN ON SALE OF SHARES BE TREATED AS LONG TERM CAPITAL GAIN. JUST AND PROPER RELIEF MAY BE GRANTED TO THE APPELLANT. 2. THE LONG TERM CAPITAL GAIN AROSE ON SALE OF EQUITY SHARES IS ELIGIBLE FOR EXEMPTION U/S 10(38) OF THE IT ACT, 1961. CONSIDERING THE FACTS OF THE CASE AND PROVISIONS OF LAW, THE EXEMPTION U/S 10(38) BE ALLOWED IN FULL. JUST AND PROPER RELIEF MAY BE GRANTED TO THE APPELLANT. 3. THE APPELLANT PRAYS TO BE ALLOWED TO ADD, TO DELETE, TO ENLARGE THE GROUNDS OF APPEAL AT THE TIME OF HEARING. ITA NO.785/PUN/2019 - 2 - 3. BEFORE ME, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THAT THIS IS A CASE WHERE THE ASSESSEE CLAIMED LONG TERM CAPITAL GAINS EXEMPTION U/S 10(38) OF THE ACT. IN THIS REGARD, LD. COUNSEL FILED THE ADDITIONAL EVIDENCES BEFORE ME CONTAINS THE COPIES OF (I) SHARE CERTIFICATE OF PINE ANIMATIONS LTD.; (II) SHARE TRANSFER FORM OF PINE ANIMATIONS LTD. FROM GAJAKARNA TRADING PRIVATE LIMITED; (III) TRANSACTION STATEMENT (D-MAT) OF SHARES OF PINE ANIMATIONS LTD. DURING THE PERIOD F.Y. 2014-15; (IV) CONTRACT NOTES ISSUED BY MOTILAL OSWAL SECURITIES LTD.; (V) LEDGER EXTRACT OF ASSESSEE IN THE BOOKS OF MOTILAL OSWAL SECURITIES LTD.; AND, (VI) SHARE HOLDING STATEMENT AS ON 13.08.2019 WITH MOTILAL OSWAL SECURITIES LTD. AND SUBMITTED THE SAID ADDITIONAL EVIDENCES WERE NOT AVAILABLE WITH THE LOWER AUTHORITIES AT THE TIME OF PASSING THE ASSESSMENT ORDER AS WELL AS THE APPELLATE ORDER. THEREFORE, LD. COUNSEL FOR THE ASSESSEE REQUESTED FOR ADMITTING THE SAID ADDITIONAL EVIDENCES AND PRAYED FOR REMANDING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH IN VIEW OF THE SAID ADDITIONAL EVIDENCES. 4. ON HEARING BOTH SIDES AND ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE BEFORE ME FOR THE FIRST TIME, I AM OF THE OPINION, THE SAID REQUEST OF THE ASSESSEE FOR REMANDING THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IS FAIR AND REASONABLE. ACCORDINGLY, WITHOUT GOING TO THE MERITS OF THE ISSUE AND KEEPING ALL THE ISSUE WERE OPEN, THE MATTER IS STAND REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO ITA NO.785/PUN/2019 - 3 - DECIDE THE ISSUE AFTER ADMITTING AND CONSIDERING THE SAID ADDITIONAL EVIDENCES. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER SET PRINCIPLE OF NATURAL JUSTICE. ACCORDINGLY, THE ALTERNATE PRAYER OF THE ASSESSEE IS ACCEPTED AND THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 01 ST DAY OF OCTOBER, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 01 ST OCTOBER, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-2, AURANGABAD; 4. THE CCIT, NASHIK; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE