SMT. VIMLADEVI PARASMAL JAIN,MUMBAI V. ITO 17(3)(5), MUMBAI

ITA 5047/MUM/2024

AI Insights

The case involves Smt. Vimladevi Parasmal Jain, who appealed against the order of the National Faceless Appeal Centre, Delhi, which confirmed the additions made by the AO for the assessment year 2014-15. The AO had initiated proceedings under section 148 of the Act, suspecting that income chargeable to tax had escaped assessment. The assessee contended that she had not earned long-term capital gains but had incurred losses from share transactions. The ITAT, after reviewing the documents and affidavits presented, found that the assessee's contentions were unrebated by the department and ruled in favor of the assessee, allowing the appeal and deleting the additions made by the AO.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 470752 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Other Referred Cases: Land Acquisition Collector Vs. Mst. Katiji & Ors., Cit Vs Bhaichand N Gandhi, Anand Ram Raitani Vs. CIT, Smt Shanti Devi Vs. CIT, Smt Manasi Mahendra Pitkar, ITO Vs. Kamal Kumar Mishra
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNNY KACHHWAHA
• Assessee Lawyers: VIMAL PUNMIYA
• Keywords: Condonation of delay; Earning of tax free income
• Section: 148; 250; 68

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH MUMBAI BEFORE HON’BLE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA No. 5047/Mum/2024 (Assessment Year: 2011-12) Smt Vimladevi Parasmal Jain 1301, 13th Floor, Cosmos Sunshain, Panjrapole 3rd Gulalwadi – 400004. Vs. ITO, 17(3)(5) Aayakar Bhavan MK Road, Mumbai – 400020. PAN/GIR No. ADIPJ7472L (Applicant) (Respondent) Assessee by Shri Vimal Punmiya Revenue by Shri Sunny Kachhwaha – Sr. DR Date of Hearing 21.01.2025 Date of Pronouncement 28.01.2025 आदेश / ORDER PER SANDEEP GOSAIN, JM: The present appeal has been filed by the assessee challenging the impugned order 06.02.2024, passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre, Delhi (‘Ld. CIT(A)’) for the assessment year 2014-15. 2 ITA No. 5047/Mum/2024 Smt. Vimladevi Parasmal Jain, Mumbai 2. There is a delay in filing the appeal, and in this regard, the assessee has requested for the condonation of delay and the reasons given are supported by an affidavit. 3. After having heard the counsels for both the parties and going through the contents of the application for seeking condonation of delay and also taking into consideration the principles as laid down by Hon’ble Supreme Court in the case of Land Acquisition Collector Vs. Mst. Katiji & Ors., [1987] AIR 1353 (SC) wherein it has been held that where substantial justice is pitted against technicalities of non deliberate delay, then in that eventuality the cause of substantial justice is to be preferred. 4. Thus, considering these principles and also taking into account that the application for seeking condonation of delay is supported by an affidavit. Whereas, on the contrary no affidavit has been filed by the department to rebut or controvert the facts, contained in the affidavit filed by the assessee. Therefore the contention of the affidavit filed by the assessee went un-rebutted. Considering the totality of facts and legal preposition as discussed above, the delay in filing the appeals stands condoned. 5. Ground No. 1 & 2 raised by the assessee relates to challenging the order of Ld. CIT(A) in confirming the 3 ITA No. 5047/Mum/2024 Smt. Vimladevi Parasmal Jain, Mumbai additions made by the AO. Therefore I have decided to take up both these grounds jointly and dispose of the same through the present consolidated order. 6. I have heard the counsels for both the parties and have also perused the material placed on record, judgement cited before me and the orders passed by the revenue authorities. 7. As per the facts of the present case, assessee has shown exempt income under section 10(38) of the Act of Rs. 10,12,375/- in his return of income from sale of shares of M/s DMC Education, however, AO was of the view that income chargeable to tax has escaped assessment. Therefore, initiated proceedings under section 148 of the Act . 8. Ld. AR drawn my attention to the fact that the assessee has not earned long term capital gain rather on the contrary made loss of Rs. 37,932/- and in this regard referred to page number 11 and 12 of the paper book which contains statement of purchases and sales of shares of DMC international Ltd and statement with effect from 01.04.2010 to 31.03.2011 of Nirmal Bang securities Private Limited through which shares were purchased and sold. 9. After analyzing the documents placed on record I found that assessee suffered loss of Rs.37,932/- instead of gain. 4 ITA No. 5047/Mum/2024 Smt. Vimladevi Parasmal Jain, Mumbai Even otherwise the assessee has not maintained books of account and credit of Rs.10,12,375/- has not been found credited in the books of accounts. Therefore in my view, the provisions of section 68 of the act are not applicable where the assessee has not maintained books of accounts and the same is not found credited in the books of accounts. For this proposition, I rely upon the following case laws: 1. Cit Vs Bhaichand N Gandhi, 141 ITR 67 (BOM) 2. Anand Ram Raitani Vs. CIT, 223 ITR 544 3. Smt Shanti Devi Vs. CIT, 171 ITR 532 4. Smt Manasi Mahendra Pitkar, ITA no. 4223 of 2015 5. ITO Vs. Kamal Kumar Mishra ITA No. 398/LKW/2012. 10. I also found that no amount Rs. 10,12,375/- has been found credited in the books of account, therefore, no addition could have been made under section 68 of the act by the Ld.AO. Even otherwise Ld. CIT(A) while dealing with the appeal of the assessee adjudicated the provisions of section 69A instead Sec. 68 of the Act. Therefore the impugned order of CIT(A) is contrary to the provisions of law. Thus, the order of Ld. CIT(A) is not sustainable and consequently as discussed above the additions made by the AO are directed to be deleted. 5 ITA No. 5047/Mum/2024 Smt. Vimladevi Parasmal Jain, Mumbai 11. In the result the appeal filed by the assessee stands allowed. Order pronounced in the open court on 28.01.2025. (SANDEEP GOSAIN) JUDICIAL MEMBER Mumbai, Dated 28/01/2025 KRK, PS आदेश की \bितिलिप अ\u000eेिषत/Copy of the Order forwarded to : 1. अपीलाथ\f / The Appellant 2. \r\u000eथ\f / The Respondent. 3. संबंिधत आयकर आयु\u0019 / The CIT(A) 4. आयकर आयु\u0019(अपील) / Concerned CIT 5. िवभागीय \rितिनिध, आयकर अपीलीय अिधकरण, मु\u0003बई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file. आदेशानुसार/ BY ORDER, स\u000eािपत \rित //True Copy// 1. उप/सहायक पंजीकार ( Asst. Registrar) आयकर अपीलीय अिधकरण, मु\u0003बई मु\u0003बई मु\u0003बई मु\u0003बई / ITAT, Mumbai "