ACIT NON CORPORATE WARD 5(1), CHENNAI V. MUKESHKUMARJAIN, CHENNAI

MA 276/CHNY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4309 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 11-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: T C NARAYANAN ITP

Judgement Text

HNY/ , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER MISCELLANEOUS PETITION NO.276 /CHNY/2019 [ IN I.T.A. NO. 2973/CHNY/2018] ( [ [ / ASSESSMENT YEAR : 2013-14) THE ASST. COMMISSIONER OF INCOME TAX, NON CORPORATE WARD 5(1), CHENNAI. V. SHRI MUKESH KUMAR JAIN, 38, EKAMBARESWAR AGRAHARAM STREET, 1 ST FLOOR, CHENNAI 600 003. PAN: AHMPM2972Q ( / APPLICANT) ( /RESPONDENT) / APPLICANT BY : SHRI S. VIJAYAPRABHA, ADDL.CIT /RESPONDENT BY : SHRI T. C.NARAYANAN, I.T.P. /DATE OF HEARING : 21.02.2020 /DATE OF PRONOUNCEMENT : 21.02.2020 / O R D E R THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL IN ITA NO.2973/CHNY/2018 DATED 04.07.2019. 2. SHRI S. VIJAYAPRABHA, THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THIS TRIBUNAL REMITTED BACK THE MATTER TO THE ASSESSING OFFICER FOR RE-CONSIDERATION. ACCORDING TO THE LD.DR, AS 2 MA NO.276/CHNY/2019 PER THE REPORT FROM THE INVESTIGATION WING OF KOLKATA, GFL FIN IS ONE OF THE BSE LISTED PENNY STOCK COMPANY AND USED FOR GENERATING BOGUS LONG TERM CAPITAL GAIN. SHRI PANKAJ AGARWAL AND SHRI DEVESH UPADHYAY ADMITTED THAT THEY WERE PROVIDING LONG TERM CAPITAL GAIN THROUGH GFL FIN. ON AN IDENTICAL CIRCUMSTANCE, ACCORDING TO THE LD.DR, THE MADRAS HIGH COURT CONFIRMED THE ORDER OF THIS TRIBUNAL, WHEREIN THE INVESTMENT IN PENNY STOCK COMPANY WAS CONFIRMED BY THIS TRIBUNAL. THEREFORE, THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. 3. I HEARD SHRI T.C.NARAYANAN, THE LD.REPRESENTATIVE FOR THE ASSESSEE ALSO. THIS TRIBUNAL AFTER CONSIDERING THE ARGUMENTS ON BOTH SIDES, FOUND THAT IT WAS NOT BROUGHT ON RECORD, HOW THE ASSESSEE INVOLVED IN PROMOTING THE PENNY STOCK COMPANY AND HOW THE ASSESSEE INVOLVED IN INFLATING THE SHARES OF THE COMPANY. IT WAS ALSO FOUND THAT THE INVESTIGATION REPORT OF THE DEPARTMENT FROM KOLKATA WAS NOT FURNISHED TO THE ASSESSEE. AFTER REFERRING TO THE ORDER OF THE DIVISION BENCH OF THIS TRIBUNAL IN THE CASE OF KANHAIYALAL & SONS (HUF) V. ITO IN ITA NO.1849/CHNY/2018, THIS TRIBUNAL REMITTED BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER 3 MA NO.276/CHNY/2019 TO RE-EXAMINE THE MATTER IN THE LIGHT OF THE DIRECTION ISSUED BY THE DIVISION BENCH OF THIS TRIBUNAL. 4. I ALSO CAREFULLY GONE THROUGH THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF SMT. THARAKUMARI VS. ITO, TCA NO.128 OF 2019, THE COPY OF WHICH IS FILED BY THE REPRESENTATIVE FOR THE ASSESSEE. IN THE CASE BEFORE THE MADRAS HIGH COURT, IT IS NOT THE CASE OF THE ASSESSEE THAT THE INVESTIGATION REPORT WAS NOT FURNISHED TO THEM. THE HIGH COURT FOUND THAT THE ASSESSEE FAILED TO BRING IN ANY EVIDENCE TO SHOW THAT THE LONG TERM CAPITAL GAIN CLAIMED BY HER WAS CORRECT. IN THE CASE BEFORE US, IT IS FOR THE ASSESSEE TO BRING EVIDENCE TO SHOW HOW THE LONG TERM CAPITAL GAIN CLAIMED BY HIM IS CORRECT AFTER GOING THROUGH THE INVESTIGATION REPORT AND OTHER MATERIAL THAT WAS RELIED UPON BY THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDING. SINCE THE INVESTIGATION REPORT WAS NOT FURNISHED TO THE ASSESSEE, THIS TRIBUNAL WAS OF THE CONSIDERED OPINION THAT THE ASSESSEE SHALL BE GIVEN AN OPPORTUNITY TO REBUT THE EVIDENCES SAID TO BE COLLECTED BY THE DEPARTMENT AT KOLKATA. THEREFORE, THE DECISION OF THIS TRIBUNAL IS NO WAY CONTRARY TO THE JUDGMENT OF THE MADRAS HIGH COURT. IT IS FOR THE ASSESSING OFFICER TO FURNISH ALL THE MATERIAL FACTS TO THE ASSESSEE AND GIVE AN 4 MA NO.276/CHNY/2019 OPPORTUNITY TO REBUT THE SAME AND THEREAFTER DECIDE THE ISSUE BY APPLYING THE JUDGMENT OF THE MADRAS HIGH COURT. SUFFIX TO SAY THAT GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE AND THE DEPARTMENT TO FURNISH THE NECESSARY MATERIAL SAID TO BE COLLECTED BY THE DEPARTMENT WOULD NOT PREJUDICE TO THE INTEREST OF THE REVENUE IN ANY WAY. ON IDENTICAL CIRCUMSTANCES, THE DIVISIONAL BENCH OF THIS TRIBUNAL IN M.P.NO.243/CHNY/2019 DATED 10.01.2020 DISMISSED A SIMILAR MISCELLANEOUS PETITION, THE COPY OF WHICH WAS FILED BY THE ASSESSEE. IN VIEW OF THE ABOVE, THIS TRIBUNAL DO NOT FIND ANY ERROR IN THE ORDER OF THIS TRIBUNAL. ACCORDINGLY, THE MISCELLANEOUS PETITION IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 2020 AT CHENNAI. SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, /DATED, THE 21 ST FEBRUARY, 2020. RSR . 5 MA NO.276/CHNY/2019 /COPY TO: 1. / APPLICANT 2. / RESPONDENT 3. ( ) /CIT(A) 4. /CIT 5. /DR 6. [ /GF.