PRIYANKA OM PRAKASH BAJAJ,MUMBAI V. ITO 34 (3) (2), MUMBAI

MA 38/MUM/2025

AI Insights

The case involves Smt. Priyanka Om Prakash Bajaj, who filed a Miscellaneous Application against an order of the Income Tax Appellate Tribunal concerning the rejection of exemption claimed under section 10(38) of the Income Tax Act for long-term capital gains from the sale of shares. The Tribunal had previously recorded that the assessee was allotted shares on a preferential basis, which was contested as a mistake. The assessee also argued that the Tribunal's observation regarding the failure to bring the identity of the exit provider was incorrect, as the shares were sold through screen-based trading, making it impossible to know the buyers. Additionally, the assessee contested the Tribunal's observation that the Assessing Officer (AO) did not conduct a satisfactory enquiry, which the assessee claimed was against the facts. The Tribunal acknowledged certain mistakes in its previous order but maintained that it could not revisit the entire issue or grant the relief sought under the provisions of section 254(2).

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 24117 (ITAT-MUMBAI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRAVIN SALUNKHE
• Assessee Lawyers: RUSHABH MEHTA
• Keywords: Capital Gains
• Section: 254(2)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI “C” BENCH : MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI ANIKESH BANERJEE, JUDICIAL MEMBER M.A.No. 38/Mum/2025 (Arising out of ITA No. 2929/Mum/2023) Assessment Year : 2015-16 Smt. Priyanka Om Prakash Bajaj, 1, Pramukh 19 Friends Society, N.S. Road, J.V.P.D. Vile Parle (West), Mumbai-400056 PAN : AGCPB6476D vs. Income Tax Officer, Ward-34(3)(2), Room No. 834, Kautilya Bhavan, G Block, BKC, Bandra East, Mumbai-400051 (Applicant) (Respondent) For Assessee : Shri Rushabh Mehta For Revenue : Shri Pravin Salunkhe, Sr.DR Date of Hearing : 21-03-2025 Date of Pronouncement : 04-04-2025 O R D E R PER ANIKESH BANERJEE, J.M : The assessee has filed this Miscellaneous Application submitting that there are mistakes apparent from record in the order dated 13-08-2024 passed by the Tribunal in ITA No.2929/Mum/2023. 2. It is stated in the petition that the issue contested in the above said appeal is related to the rejection of exemption claimed u/s 10(38) of the Act in respect of long term capital gains claimed against sale of shares of M/s Matra Kaushal Enterprises Ltd. It is submitted that the assessee had purchased the shares in off market, but the Tribunal has recorded that the assessee was allotted shares on preferential basis, which is mistake apparent from record. Further, the Tribunal has 2 M.A.No. 38/Mum/2025 observed that the assessee has failed to bring the identity of the exit provider. However, the assessee has sold the shares online in a screen based trading and hence he will not be knowing the buyers in the other side. Hence it will not be possible for the assessee to prove the identity of the exit provider, if any. It is further submitted that the Tribunal has observed that the AO did not conduct enquiry related to the father of the assessee, who dealt with the matter on behalf of the assessee and hence the verification carried out by the AO was unsatisfactory and incomplete. It is submitted that the above said observation is against the facts available on record. It is submitted that the AO has carried out necessary investigation and hence granting second innings to the AO is not permissible. In support of this proposition, the assessee has placed reliance on various case laws. Accordingly, it is prayed that the impugned order passed by the Tribunal may be recalled or the appeal of the assessee may be allowed fully. 3. We heard the parties and perused the record. On a perusal of the submissions made in miscellaneous petition filed by the assessee, we notice that the assessee is, in effect, requesting the Tribunal to revisit the entire issue, which is not permissible under sec. 254(2) of the Act. Under the said provisions, only mistakes apparent from record can be rectified and accordingly, the order cannot be reviewed under the garb of rectification. The plea of the assessee that the AO should not have been given second innings cannot be addressed by the Tribunal u/s 254(2) of the Act. Hence, we are unable to accept the request of the assessee either to grant relief to the assessee or recall the order. 4. However, we notice that the assessee has pointed out certain mistake apparent from record and we proceed to rectify the same. (a) In paragraph 6 of the order, the sentence “The assessee has earned the capital gain through a method of allotment of 3 M.A.No. 38/Mum/2025 preferential shares on dated 27/08/2012” shall be replaced by the following sentence:- “The assessee had earned capital gain on sale of shares purchased on 27-08-2012 off market.” (b) In paragraph 6 of the order, the sentence “The assessee failed to bring the identity of the exit provider” shall be omitted. Other observations made by the Tribunal and decision rendered shall remain intact. 5. In the result, the Miscellaneous Application filed by the assessee is partly allowed. Order pronounced in the open court on 04-04-2025 Sd/- Sd/- [B.R. BASKARAN] [ANIKESH BANERJEE] ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 04-04-2025 TNMM 4 M.A.No. 38/Mum/2025 Copy to : 1. The Applicant 2. The Respondent 3. The Pr. CIT concerned 4. The D.R. ITAT,Mumbai 5. Guard File. //By Order// //True Copy // Dy./Asst. Registrar, ITAT, Mumbai "