Smt. Jharna Ghosh, Howrah V. D.C.I.T.,Circle-1(1), Kolkata

ITA 877/KOL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2759 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Wrong claim; Set aside
• Section: 143(3); 14A; 68

Judgement Text

I.T.A. NO. 877/KOL/2019 (ASSESSMENT YEAR: 2014-2015) SMT. JHAR NA GHOSH 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) & SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 877/KOL/2019 ASSESSMENT YEAR: 2014-2015 SMT. JHARNA GHOSH,................................. .......................................APPELLANT 124/9, MAHENDRA BHATTACHARYA ROAD, HOWRAH-711 104 [PAN: ADPPG 0796 H] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,............... ...............RESPONDENT CIRCLE-1(1), KOLKATA, P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, KOLKATA-700 069 APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, FOR THE APPELLAN T SHRI SANKAR HALDER, JCIT, SR. D.R., FOR THE RESPOND ENT DATE OF CONCLUDING THE HEARING : JUNE 07, 2019 DATE OF PRONOUNCING THE ORDER : JUNE 07, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KOLKATA ZONE) :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA DAT ED 07.03.2019 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 11.09.2014 DECLARING TOTAL INCOME OF RS.6,87,50,040/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD CLAIMED TO HAVE SOL D TWO SCRIPTS AND THE LONG-TERM CAPITAL GAIN OF RS.85,28,439/- ARISING FR OM THE SAID SALE WAS CLAIMED TO BE EXEMPT UNDER SECTION 10(38) OF THE IN COME TAX ACT, 1961. DURING THE COURSE OF ASSESSMENT, THE ASSESSEE WAS C ALLED UPON BY THE ASSESSING OFFICER TO ESTABLISH THE GENUINENESS OF T HE RELEVANT TRANSACTIONS OF SALE OF TWO SCRIPTS GIVING RISE TO THE LONG-TERM CAPITAL I.T.A. NO. 877/KOL/2019 (ASSESSMENT YEAR: 2014-2015) SMT. JHAR NA GHOSH 2 GAIN AND KEEPING IN VIEW HER INABILITY TO DO SO, TH E ASSESSEE SURRENDERED THE LONG-TERM CAPITAL GAIN AMOUNTING TO RS.85,28,43 9/- AS HER INCOME. THE ASSESSING OFFICER, HOWEVER, FOUND THAT THE TOTA L SALE CONSIDERATION OF THE TWO SCRIPTS WAS RS.1,02,85,184/- AND ADDITION T O THAT EXTENT WAS LIABLE TO BE MADE TO THE TOTAL INCOME OF THE ASSESS EE UNDER SECTION 68 AS THE ASSESSEE HAD FAILED TO ESTABLISH THE GENUINENES S OF THE RELEVANT TRANSACTIONS INVOLVING SALE OF TWO SCRIPTS. HE ACCO RDINGLY ADDED THE DIFFERENCE OF RS.17,56,745/- TO THE TOTAL INCOME OF THE ASSESSEE. HE ALSO MADE AN ADDITION OF RS.51,426/- BEING COMMISSION @ 0.5% ALLEGEDLY PAID BY THE ASSESSEE FOR GETTING THE BOGUS ENTRIES OF SA LE OF TWO SCRIPTS IN ORDER TO MAKE A WRONG CLAIM OF LONG-TERM CAPITAL GA IN. THE ASSESSING OFFICER ALSO MADE A FURTHER ADDITION OF RS.67,656/- ON ACCOUNT OF DISALLOWANCE UNDER SECTION 14A AND DETERMINED THE T OTAL INCOME OF THE ASSESSEE AT RS.7,91,54,310/- IN THE ASSESSMENT COMP LETED UNDER SECTION 143(3) VIDE AN ORDER DATED 24.10.2016. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF TH E ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HE ARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED THE APPEAL OF THE AS SESSEE FOR NON- PROSECUTION VIDE HIS APPELLATE ORDER DATED 07.03.20 19 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT O F THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING T HE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION, THE LD. COUNSEL FOR T HE ASSESSEE HAS SUBMITTED THAT THE NOTICES STATED TO BE SENT BY THE LD. CIT(APPEALS) THROUGH E-MAIL AND BY SPEED POST FIXING THE APPEAL FOR HEARING WERE NEVER RECEIVED BY THE ASSESSEE AND THE ASSESSEE, TH EREFORE, COULD NOT I.T.A. NO. 877/KOL/2019 (ASSESSMENT YEAR: 2014-2015) SMT. JHAR NA GHOSH 3 COMPLY WITH THE SAME. KEEPING IN VIEW THESE SUBMISS IONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE VIEW THAT T HERE WAS A SUFFICIENT CAUSE FOR NON-APPEARANCE OF THE ASSESSEE AT THE TIM E OF HEARINGS FIXED BEFORE THE LD. CIT(APPEALS) AND THE ASSESSEE DESERV ES TO BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD. WE ACCORDINGLY SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE AND R EMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 4.1. AS UNDERTAKEN BY THE LD. COUNSEL FOR THE ASSES SEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(APPEALS) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT (APPEALS) TO DISPOSE OF THE APPEAL AFRESH ON MERIT EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 07, 2019 . SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE- PRESIDENT (KZ) KOLKATA, THE 7 TH DAY OF JUNE, 2019 COPIES TO : (1) SMT. JHARNA GHOSH, 124/9, MAHENDRA BHATTACHARYA ROAD, HOWRAH-711 104 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1), KOLKATA, P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.