SHAMBHU DAYAL SARRAF, Jaipur V. ITO, Jaipur

MA 97/JPR/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6442 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 16-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA
• Keywords: Reason to believe
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM MA NO. 97/JP/2016 (ARISING OUT OF ITA NO. 558/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2003-04 SHRI SHAMBHU DAYAL SARRAF C/O S.D. SARRAF & CO. 1 ST FLOOR SHOP NO. 216-217, KISHANPOLE BAZAAR, JAIPUR. CUKE VS. THE ITO, WARD- 7(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AFPPS 1708 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGARWAL (C.A. JKTLO DH VKSJ LS @ REVENUE BY : SMT. SEEMA MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/04/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 10/04/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE IS SEEKING RECALLING OF THE ORDER DATED 11.02.2016 OF THIS TRI BUNAL ON THE GROUND THAT THERE IS A MISTAKE APPARENT ON RECORD TO THE E XTENT OF NOT CONSIDERING THE CORRECT FACTS ON THE ISSUE OF VALID ITY OF REOPENING OF THE ASSESSMENT. MA NO. 97/JP/2016 SHRI SHAMBHU DAYAL SARRAF VS. ITO 2 2. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT TH E ASSESSEE FILED HIS RETURN OF INCOME ON 30.06.2003 WHEREIN THE TRAN SACTION OF SALE OF SHARES AND CONSEQUENTIAL LONG TERM CAPITAL GAIN HAS BEEN DULY DISCLOSED WHICH IS THE SUBJECT MATTER OF REOPENING OF THE ASS ESSMENT. HE HAS FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS ST ATED IN THE REASONS RECORDED FOR THE REOPENING OF THE ASSESSMENT THAT T HE ASSESSEE HAS NOT SHOWN A SUM OF RS. 5,60,845/- IN RESPECT OF THE TRA NSACTIONS WITH MKM FINANCE SECURITIES IN THE RETURN OF INCOME AND THER EFORE, THE AO STATED TO HAVE REASON TO BELIEVE THAT THE INCOME OF RS. 5, 60,845/-HAS ESCAPED ASSESSMENT. THE LD. AR HAS FURTHER SUBMITTED THAT T HE ASSESSEE RAISED OBJECTION AGAINST THE NOTICE ISSUED U/S 148 OF THE ACT AND POINTED OUT THAT THE ASSESSEE HAS DULY DISCLOSED THIS AMOUNT BE ING SALE TRANSACTION OF SHARES AND THE CONSEQUENTIAL LONG TERM CAPITAL G AIN. HOWEVER, THE AO WHILE DISPOSING OF THE OBJECTIONS VIDE ORDER DAT ED 26.11. 2010 AGAIN COMMITTED MISTAKE FOR NOT CONSIDERING THE TRUE FACT S. HE HAS FURTHER SUBMITTED THAT THE TRIBUNAL WHILE PASSING THE IMPUG NED ORDER HAS ALSO NOT CONSIDERED THIS FACT OF DISCLOSING THE SAID AMO UNT IN THE RETURN OF INCOME BUT THE ISSUE HAS BEEN DECIDED ON THE BASIS THAT THE AO HAS DULY DISPOSED OFF THE OBJECTIONS OF THE ASSESSEE. H ENCE, THE LD. AR HAS SUBMITTED THAT THE MISTAKE IN THE IMPUGNED ORDER GO ES TO THE ROOT OF MA NO. 97/JP/2016 SHRI SHAMBHU DAYAL SARRAF VS. ITO 3 THE MATTER ON THE ISSUE OF VALIDITY OF REOPENING TH EREFORE, THE IMPUGNED ORDER MAY BE RECALLED FOR HEARING AND ADJUDICATION OF THE SAME AFRESH. 3. ON THE OTHER HAND, LD. DR HAS VEHEMENTLY OPPOSED TO THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE ISSUE ON MERITS AFTER CONS IDERING THE RELEVANT RECORD AS WELL AS THE CONTENTION OF THE ASSESSEE AN D THEREFORE THE DECISION GIVEN ON MERITS CANNOT BE REVIEWED IN THE PROCEEDINGS U/S 254(2) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE AS SESSEE FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 30.06 .2003. THE AO REOPEN THE ASSESSMENT BY RECORDING THE REASONS AS U NDER:- IT HAS COME TO THE NOTICE OF THE UNDERSIGNED THAT THE ASSESSEE SH. SHAMBHU DAYAL SARAF S/O SH. MADAN LAL SARAF C/O M/S SARAF & CO. C.A. 1 ST FLOOR SHOP NO. 216-217 KISHANPOLE BAZAR, JAIPUR HAS MADE TRANSACTIONS WORTH RS. 5,60,845/- WITH MKM FINSEC.THROUGH TWO DD OF RS. 2,50,000/-, DATED 12.0 9.2002 AND RS. 3,10,845/- DATED 18.09.2002. IN THE RETURN FOR THE A.Y. 2003- 04 THE SAID SUM HAS NOT BEEN SHOWN. I HAVE, THEREFO RE, REASON TO BELIEVE THAT INCOME OF RS. 5,60,845/- HAS ESCAPED A SSESSMENT. THUS, THE ASSESSMENT WAS REOPENED WHEN THE AO CAME TO KNOW THAT THE ASSESSEE HAVE TRANSACTION WITH MKM FINANCE SECU RITIES AND MA NO. 97/JP/2016 SHRI SHAMBHU DAYAL SARRAF VS. ITO 4 RECEIVED A TOTAL SUM OF RS. 5,60,845/- THROUGH TWO DDS OF RS. 2,50,000/-DATED 12.092002 AND RS. 3,10,845/- DATED 18.09.2002. THE ASSESSEE RAISED THE OBJECTIONS AGAINST THE REOPENIN G OF THE ASSESSMENT AND SUBMITTED THAT THE ALLEGED INCOME OF RS. 5,60,8 45/- WAS DULY DISCLOSED IN THE RETURN OF INCOME AS PART OF THE LO NG TERM CAPITAL GAIN ARISING FROM SALE OF SHARES AND THEREFORE, THE AO H AVING NO REASONS TO BELIEVE THAT THE INCOME ASSESSABLE TO TAX HAS ESCAP ED ASSESSMENT. WE FIND THAT THIS IS PURELY A FACTUAL ASPECT PERTAINS TO THE DISCLOSER OF THE INCOME BY THE ASSESSEE IN THE RETURN OF INCOME WHIC H WAS CONSIDERED BY THE AO AS NOT DISCLOSED BY THE ASSESSEE WHILE RE CORDING THE REASONS FOR REOPENING OF THE ASSESSMENT. THEREFORE, THIS IS SUE IS MORE A FACTUAL IN NATURE THEN, THE LEGAL AS TO WHETHER THE ASSESSI NG OFFICER HAS CONSIDERED THE CORRECT FACTS WHILE FORMING THE BELI EF THAT THE INCOME OF RS. 5,60,845/- HAS ESCAPED ASSESSMENT FOR THE REASO NS THAT THE ASSESSEE HAS NOT DISCLOSED THE SAME IN THE RETURN O F INCOME. 5. ON THE CONTRARY, THE ASSESSEE HAS CONTENDED THAT THE SAID AMOUNT HAS BEEN DULY DISCLOSED IN THE RETURN OF INC OME AS PART OF THE LONG TERM CAPITAL GAIN ON SALE OF SHARES. WE NOTE T HAT THOUGH THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER HAS REJEC TED THE CONTENTION OF THE ASSESSEE AGAINST THE VALIDITY OF REOPENING H OWEVER, THIS MA NO. 97/JP/2016 SHRI SHAMBHU DAYAL SARRAF VS. ITO 5 PARTICULAR FACT WHETHER THE ASSESSEE HAS DISCLOSED THIS AMOUNT IN THE RETURN OF INCOME OR NOT HAS ESCAPED CONSIDERATION B Y THE TRIBUNAL WHILE DECIDING THE ISSUE. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS A MISTAKE APPARENT ON RECORD IN THE IMPUGNED ORDER AN D CONSEQUENTLY WE RECALL THE IMPUGNED ORDER OF THE TRIBUNAL FOR FRESH HEARING AND ADJUDICATION OF THE MATTER. THE REGISTRY IS DIRECTE D TO FIX THE APPEAL OF THE ASSESSEE FOR FRESH HEARING AND ADJUDICATION IN REGULAR COURSE. THE PARTIES TO BE INFORMED ABOUT THE NEXT DATE OF HEARI NG. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/04/2018 SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10/04/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SHAMBHU DAYAL SARRAF, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-7(1),JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 97/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR