MOHAN SHARMA(INDIVIDUAL),BALLABGARH V. ITO, WARDE-1(5), FARIDABAD

ITA 1145/DEL/2018

AI Insights

The case involves Shri Mohan Sharma, the appellant, who appealed against the order of the Commissioner of Income Tax (Appeals), Faridabad, which pertained to the Assessment Year 2014-15. The primary contention in the appeal was the addition of Rs.2,45,21,976 to the total income under section 68 of the Income Tax Act, 1961, which was disallowed as an exemption of Long Term Capital Gains under section 10[38] of the Act. The appellant argued that the assessment order was based on incorrect facts and failed to consider crucial submissions made during the assessment proceedings. Additionally, issues regarding the non-service of a notice and the use of statements recorded during survey proceedings without an opportunity for cross-examination were raised. However, the appellant decided to withdraw the appeal following the availing of the Vivad Se Vishwas Scheme, 2024, aimed at resolving tax disputes.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 471785 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2014-2015
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMIT KATOCH
• Assessee Lawyers: AMAN GARG
• Keywords: Capital Gains; Assessment record; Competent authority
• Section: 131; 133A

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: ‘E’: NEW DELHI) BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND SHRI SUDHIR PAREEK, JUDICIAL MEMBER ITA No:- 1145/Del/2018 (Assessment Year- 2014-15) Shri Mohan Sharma, S.o Shri Het Ram Sharma, Faridabad. Vs. ITO, Ward-1(5), Faridabad. PAN No: ATUPS1008F APPELLANT RESPONDENT Assessee by : Shri Aman Garg, CA. Revenue by : Shri Amit Katoch, Sr. DR Date of Hearing : 24.02.2025 Date of Pronouncement : 24.02.2025 ORDER PER SUDHIR PAREEK, JM: This appeal by the assessee is against the order of Commissioner of Income Tax (Appeal), Faridabad, [hereinafter referred to as ‘the Ld. CIT(A)] order dated 27.12.2017 pertaining to Assessment Year 2014-15. 1.1 The assessee has raised the following grounds of appeal: “1. THAT on the facts and in the circumstances of the present case the Ld. AO has grossly erred to make an addition of Rs.2,45,21,976-00 ITA No.- 1145/Del/2018 Mohan Sharma Page 2 of 5 u/s. 68 of the Income Tax Act, 1961 in the total income by disallowing exemption of Long Term Capital Gains claimed u/s. 10[38] of the Income Tax Act, 1961. Such disallowance is misconceived both on facts and in law. 2. THAT in the impugned assessment order the Ld. AO has considered untrue facts and has given findings thereon, which perverse, untrue are erroneous, and against the facts already available assessment record. on the assessment record. Such findings are-- i. The assessee sold shares on 05/08/2013 at the total value of Rs.2,51,21,976-00 before paying STT and brokerage through M/s. Kotak Securities Ltd.. As per Axis Bank Depository furnished by the details assessee, these shares were dematerialized on 24/07/2012 [Demat Confirmation). Hence, holding period of these shares is less than one year. It thus evident that just few days prior to the date shares were of sale, these dematerialized though these are said to have been purchased on 21/03/2012. Thus, the transaction entered into by the assessee does not attract the Long Term Capital Gains. ii. The purchase of such shares were made in cash. iii. The assesse has failed to furnish the proof of payment of purchases of these shares. 3. THAT the appellant assessee filed written submissions before the Ld. AO, which submissions have also been reproduced in the assessment order, but those submissions have not been considered while passing assessment order. 4. THAT in the assessment proceedings the Ld. AO informed the counsel for the appellant that certain statements of persons related to the company M/s. Kailash Auto Finance Ltd. were recorded u/s. 131 of the I T Act, 1961 as well in the course of survey u/s. 133A of the IT Act, 1961. Any statement recorded in the survey proceedings u/s. 133A of the IT Act, 1961 has no evidentiary value. So far as any statement reordered in the absence of a person against which that statement is being used, it is settled law that such a statement cannot be used against a person till such person has been provided an opportunity to cross-examine the person whose statement has been recorded. As such, statements recorded in the absence of the appellant herein could not be applied in the present case without following the law on the subject. ITA No.- 1145/Del/2018 Mohan Sharma Page 3 of 5 5. THAT in the appeal before the Ld. CIT[A] it was specifically pleaded that notice dated 09/12/2016 along with its annexures mentioned therein was not received by the appellant or his authorised representative. This fact was affidavit / is of supported with an Shri Mohan Sharma [appellant herein) filed before the Ld. CIT[A] along with written submissions form part record. of appeal The Ld. CIT[A] while passing the impugned appeal order has not even considered this issue of non-service of notice dated 09/12/2016 on the appellant herein. 6. THAT the Ld. CIT(A) in the impugned appeal order has neither considered the facts of the case available on the assessment record nor considered the law on the subjected brought to the kind notice of the Ld. CIT[A], orally as well as in writing; and has decided the appeal on whimsical grounds and on facts foreign to the present case. 7. THAT on the facts and in the circumstances of the present case, the Ld. AO has grossly erred to make addition of Rs.2,45,21,976-00 in the income declared by the appellant and further, the Ld. CIT[A] has also erred to confirm the order assessment in the present case. 8. THAT the appellant craves leave to add, amend, revise, modify, substitute or delete any or all grounds made. of appeal or/and prayer” 2. We have heard the Ld. Representative of both the parties and perused the material available on record. 3. When the matter was called for hearing, the Ld. AR for the assessee stated that the assessee does not wish to pursue the present appeal due to the exercise of the option for availing of the VSV Scheme and, consequently, requested that the withdrawal of the appeal be granted. 4. The Ld. Sr. DR for the Revenue stated that he has no objection to withdraw the appeal as sought on behalf of the assessee. ITA No.- 1145/Del/2018 Mohan Sharma Page 4 of 5 5. In view of above fact, since the assessee has availed the benefit under Vivad Se Vishwas Scheme, 2024 to settle the matters, therefore, the appeal of the assessee stands disposed of in terms thereof, subject to approval of the same by the competent authority. If at any stage the assessee finds that its declarations are not accepted by Department, the assessee is given liberty to recall this order. Appeal of the assessee is accordingly disposed of. 6. In the result, appeal of the assessee is dismissed. Order pronounced in the Open Court on 24.02.2025 Sd/- Sd/- (PRADIP KUMAR KEDIA) (SUDHIR PAREEK) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 24/02/2025. Pooja/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA No.- 1145/Del/2018 Mohan Sharma Page 5 of 5 1. Date of dictation of Tribunal order 24.02.2025 2. Date on which the typed draft Tribunal Order is placed before the Dictating Member 24.02.2025 3. Date on which the typed draft Tribunal order is placed before the other Member 4. Date on which the approved draft Tribunal order comes to the Sr. PS/PS 5. Date on which the fair Tribunal order is placed before the Dictating Member for pronouncement 6. Date on which the signed order comes back to the Sr.PS/PS 7. Date on which the final Tribunal order is uploaded by the Sr.PS/PS on official website 8. Date on which the file goes to the Bench Clerk alongwith Tribunal order 9 Date of killing off the disposed of files on the judisis Portal of ITAT by the Bench Clerks 10. Date on which the file goes to the Supervisor (Judicial) 11. The date on which the file goes to the Assistant Registrar for endorsement of the order 12. Date of Despatch of the order "