Hitesh Dani, Kolkata V. I.T.O.,Ward-29(3), Kolkata

MA 67/KOL/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0004 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 06-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL JCIT LD
• Section: 154; 2; 11

Judgement Text

1 MA NO. 67/KOL/2020 HITESH DANI IN THE INCOME TAX APPELLATE TRIBUNAL , A (SMC), KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM ] M .A NO . 67 / KOL /20 20 A/O ITA NO . 1765 / KOL/2019 AY 20 08 - 09 HITESH DANI PAN: ADNPD9461C VS. I.T.O W ARD - 29(3 ), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 26 .0 6 . 2019 DATE OF PRONOUNCEMENT 30 .0 6 .2019 FOR THE APPELLANT SHRI NONE APPEARED FOR THE RESPONDENT SHRI SUPRIYO PAL, JCIT, LD. SR.DR ORDER PER SHRI A.T. VARKEY, JM TH IS IS A MI SCELLANEOUS APPLICATION PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THIS TRIBUNAL PASSED IN ITA NO. 1765/KOL/2019 FOR THE AY 2008 - 09 BY ORDER D A T ED 20 - 12 - 2019, IT WAS HELD AS UNDER: 3. HAVING HEARD BOTH THE PARTIES AND HAVING UNDERSTOOD THE GRIEVAN CE OF THE ASSESSEE, IT IS NOTED THAT THE ASSESSEE HAD FILED AN APPLICATION U/S. 154 OF THE ACT BEFORE THE AO POINTING OUT THAT THE STCG ON SALE OF SHARES WAS ERRONEOUSLY TAXED AT NORMAL RATES. HOWEVER, ACCORDING TO THE ASSESSEE IT SHOULD HAVE BEEN TAXED AT ONLY 20%. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES, I AM OF THE OPINION THAT THE ASSESSEE'S CLAIM OF STCG SHOULD BE VERIFIED BY THE AO AND IF FOUND TO BE CORRECT THEN THE ASSESSEE SHOULD BE GIVEN THE BENEFIT OF THE STCG AND SHOULD NOT BE TAX ED AT THE NORMAL RATES AND SHOULD BE TAXED @ 20% AS STIPULATED BY LAW. THE ASSESSEE IS DIRECTED TO FILE NECESSARY EVIDENCE BEFORE THE AO TO SUBSTANTIATE HIS CLAIM. THEREFORE, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 2. BY PREFERRING THIS MISCELLANEOUS APPLICATION THE ASSESSEE HAS CONTENDED AS UNDER: - 3. IN THE ORDER OF THE HONBLE TRIBUNAL, THE HONBLE BENCH ERRED IN PASSING THE ORDER BY DIRECTING THE LD. AO TO TAX SHORT TERM CAPITAL GAIN @ 20% INSTEAD OF 10% FOR AY 2008 - 09. AS PER THE PROVISIONS U/S. 111A OF 2 MA NO. 67/KOL/2020 HITESH DANI THE INCOME TAX ACT, 1961 FOR AY 2008 - 09 TAX ON SHORT TERM CAPITAL GAIN IS AT THE RATE OF 10 PLUS SURCHARGE PLUS CESS. AS THIS MISTAKE IS APPARENT FROM RECORD THE SAME MAY BE SUITABLY RECTIFIED. 3. A BARE PERUSAL OF THE ABOVE GRI EVANCE OF ASSESSEE, IT IS NOTED THAT THIS TRIBUNAL DIRECTED THE AO TO IMPOSE TAX SHORT TERM CAPITAL GAIN (STCG) AT THE RATE OF 20% . HOWEVER, ACCORDING TO ASSESSEE AS PER PROVISIONS OF SECTION 1 1 1 A OF THE INCOME - TAX ACT, 1961 ( IN SHORT, REFERRED TO THE ACT HEREINAFTER ) FOR THE AY 2008 - 09 THE TAX ON STCG WAS AT THE RATE OF 10% PLUS SURCHARGE PLUS CESS. THERE IS NO QUARREL THAT IF THE ACT PRESCRIBES THE TAX ON STCG (SHORT TERM CAPITAL GAIN) FOR THIS AY I.E AY 2008 - 09 IS AT THE RATE OF 10% PLUS SURCHARG E PLUS CESS , THEN IT GOES WITHOUT SAYING THAT ASSESSEE SHOULD BE TAXED AT THE RATE OF TAX AS DECLARED BY THE PARLIAMENT. THEREFORE, IN THE LIGHT OF AFORESAID DISCUSSION, I MODIFY THE ORDER DATED 20 - 12 - 2019 OF THIS TRIBUNAL AND DIRECT THE AO TO IMPOSE LEVY OF TAX ON STCG (SHORT TERM CAPITAL GAIN) IN ACCORDANCE WITH LAW AS THE LAW PRESCRIBES FOR AY 2008 - 09 . IF THE ASSESSEES CONTENTION IS CORRECT , THEN THE AO AFTER VERIFICATION SHOULD GIVE APPROPRIATE RELIEF TO THE ASSESSEE AND PASS ORDER IN ACCORDANCE TO LAW . 4. HOWEVER, I NOTE THAT THE NEXT GRIEVANCE OF THE ASSESSEE IS THAT WHILE ADJUDICATING THE APPEAL, ITA NO. 1765/KOL/19 THE TRIBUNAL HAS NOT ADJUDICATED THE GROUND NOS. 2 AND 3 RAISED BY THE ASSESSEE IN THE APPEAL. A BARE PERUSAL OF THE IMPUGNED ORDE R DATED 20 - 12 - 2019, IT REVEALS THAT THE TRIBUNAL HAS ADJUDICATED THE SAID GROUNDS ( NOS. 2 &3) RAISED BY THE ASSESSEE IN THE APPEAL. THEREFORE, I AM INCLINED TO RECALL THE IMPUGNED ORDER DT. 20 - 12 - 2019 FOR THE LIMITED PURPOSE FOR ADJUDICATION OF GROUND NOS . 2 AND 3 AND, THEREFORE, THE MISC. APPLICATION IS ALLOWED TO THAT EXTENT. 5 . IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESS E E IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 30 - 06 - 2020 SD/ - A.T. VARKEY JUDICIAL MEMBER DATED 30 - 06 - 2020 3 MA NO. 67/KOL/2020 HITESH DANI PP (SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ ASSESSEE: SHRI HITESH DANI 10C & 10D FORT ROYAL, 28 PRINCE ANWAR SHAH ROAD, TOLLYGUNGE, KOLKATA - 33. 2 RESPONDENT/ REVENUE: THE ITO, W - 29(3), KOLKATA . 3. CIT, 4. CIT(A), 5. DR, K OLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA