Jemish Shah , Kolkata V. ITO, Ward - 35(2), Kolkata

MA 204/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 5073 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 03-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS ACITSRDR
• Keywords: Transactions in derivatives; Capital Gains
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER (MISC. APPLICATION) M.ANO.204/KOL/2019 (ARISING OUT ITA NO.2459/KOL/2018) / ASSESSMENT YEAR:2014-15 ITA NO.2459/KOL/2018 / ASSESSMENT YEAR:2014-15 JEMISH SHAH 70, CANNING STREET, KOLKATA-700 001 [ PAN NO.AZLPS 3562 K ] / V/S . INCOME TAX OFFICER WARD-35(2), AAYKAR BHAWAN, POORVA, 110, SHANTIPALLY, KOLKATA-107 /APPLICANT .. /RESPONDENT /BY ASSESSEE SHRI SUBASH AGARWAL, ADVOCATE /BY REVENUE SMT. RANU BISWAS, ACIT-SR-DR $ /DATE OF HEARING 01-11-2019 $ /DATE OF PRONOUNCEMENT 22-11-2019 /O R D E R THIS ASSESSEES MISCELLANEOUS PETITION FILED U/S 25 4(2) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT SEEKS TO RE-CALL / RE CTIFY THE TRIBUNALS ORDER DATED 26.06.2019 ALLOWING THE MAIN APPEAL ON THE PRETEXT THAT THE SOLE ISSUE INVOLVED IN THE MAIN LIS WAS NOT THAT OF BOGUS LONG TERM CAPITAL GAINS. HEARD BOTH THE PARTIES. CASE FILE PERUSED. MA NO.204/KOL/2019 & ITA NO.2459/KOL/2018 A.Y. 2014-15 JENISH SHAH. VS. ITO WD-35(2), KOL. PAGE 2 2. THE ASSESSEES ONLY GRIEVANCE IN THE INSTANT MIS CELLANEOUS APPLICATION IS THAT THE TRIBUNALS ORDER IN ISSUE DATED 25.06.2019 SUFFERS FROM AN APPARENT ERROR AND SINCE IT HAS NOT ADJUDICATED THE ISSUE OF SEC. 68 ADDITION AMOUNTING TO 3,70,861/- RELATING TO COMMODITY TRANSACTIONS PROFI TS. 3. I FIND FROM A PERUSAL OF TRIBUNALS ORDER THAT T HE ASSESSEES LATTER GRIEVANCE TO THIS EFFECT HAS REMAINED UNADJUDICATED . I THEREFORE RE-CALL MY ORDER DATED 26.06.2019 TO THIS LIMITED EXTENT. THIS ASSES SEES MISCELLANEOUS APPLICATION NO.204/KOL/2019 IS ACCEPTED. 4. WITH THE CONSENT OF BOTH THE PARTIES, I PROCEED TO TAKE UP THE ASSESSEES SUBSTANTIVE GRIEVANCE IN THE MAIN APPEAL ITA NO.245 9/KOL/2019 TODAY (01.11.2019) ITSELF. CASE FILE SUGGESTS THAT ALTHOU GH THE ASSESSEE HAD PRODUCED ON RECORD ALL THE RELEVANT EVIDENCE IN SUPPORT OF C OMMODITY TRANSACTIONS DERIVING PROFIT OF 3,70,861/- , THE SAME STOOD TREATED AS BOGUS SINCE LOWER AUTHORITIES COULD NOT VERIFY THE SAME FROM THE REGI STERED BROKER AS WELL AS THE COMMODITY EXCHANGE; SIMULTANEOUSLY. LEARNED COUNSEL HAS INVITED MY ATTENTION TO THE ASSESSEES DETAILED PAPER BOOK RUNNING INTO 27 PAGES INCLUDING THE TRANSACTIONS STATEMENT, SHARE BILLS, CONTRACT NOTES AND BANK STATEMENT TO THIS EFFECT. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS T O DISPUTE THE CLINCHING FACT THAT ALL THESE EVIDENCE HAS NOT BEEN DEALT WITH IN EITHER OF THE LOWER AUTHORITYS ORDERS. I THEREFORE DEEM IT APPROPRIATE TO RESTORE THE INSTANT ISSUE BACK TO THE ASSESSING OFFICER FOR AFRESH ADJUDICATION ON MERITS WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. THE ASSESSEE SHALL APPEAR ON ITS OWN BEFORE THE ASSESSING OFFICER ON OR BEFORE 30.04.2020 ALONGWITH A COPY OF THIS ORDER. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS ES IN ABOVE TERMS. MA NO.204/KOL/2019 & ITA NO.2459/KOL/2018 A.Y. 2014-15 JENISH SHAH. VS. ITO WD-35(2), KOL. PAGE 3 5. THE ASSESSEES MISCELLANEOUS APPLICATION MA NO.192/KOL/2019 IS ALLOWED AND ASSESSEES MAIN APPEAL ITA NO.2459/KOL/2018 IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN OPEN COURT ON 22/11/2019 SD/- (S.S. GODAR A) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS ( - 22/11/2019 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-JEMISH SHAH 70, CANNING STREET, KOLKATA-7 00001 2. /REVENUE-ITO WARD-35(2), AAYKAR BHAWAN, POORVA,110, SHANTIPALLY KOL-107 3. + , / CONCERNED CIT 4. , - / CIT (A) 5. + , $ + / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ $ +,