VIKASH LOHIA,KOLKATA vs. I.T.O., WARD-30(3), KOLKATA, KOLKATA

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ITA 621/KOL/2022Status: DisposedITAT Kolkata26 April 2023AY 2014-20152 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal noted a discrepancy in the amounts stated by the AO regarding the claimed exemption and the addition made. Therefore, the issue was restored to the AO for fresh examination and decision on the correct amount of long-term capital gain.

What were the facts?

The assessee claimed exemption for long-term capital gains on the sale of equity shares under Section 10(38). The Assessing Officer (AO) made an addition on account of bogus long-term capital gains. There was a discrepancy in the amount of exemption claimed and the amount added by the AO.

What were the issues?

The primary issue was the discrepancy in the amount of long-term capital gains claimed as exempt and the amount added by the AO. The Tribunal needed to determine the correct quantum of such gains.

Which sections of the Income-tax Act were involved?

Section 10(38)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “A” BENCH: KOLKATA

Before: Shri Rajesh Kumar & Shri Sonjoy Sarma]

क$ �त&थ Date of Pronouncement/ 26.04.2023 आदेश उ)घोषणा क$ �त&थ For the Appellant/ Shri K. M. Roy, A.R �नधा�/रती क$ ओर से For the Respondent/ Smt. Ranu Biswas, Addl. CITDR राज�व क$ ओर से ORDER / आदेश Per Rajesh Kumar, AM: This is the appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals) – NFAC, Delhi (hereinafter referred to as the Ld. CIT(A)”] dated 15.09.2022 for the AY 2014-15.

2.

The only issue raised by the assessee is against the confirmation of addition of Rs. 37,87,500/- which was made by the AO on account of bogus long term capital gain on sale of equity shares which was claimed as exempt u/s 10(38) of the Act.

3.

At the outset, it was brought to our notice that the case is covered against the assessee by the decision of Hon’ble High Court in the case of PCIT Vs Swati Bajaj IA

2 Assessment Year: 2014-15 M/s Vikash Lohia No. GA/2/2022 and others however it was submitted that it needs to be examined as to how much is the correct amount of long term capital gain. It was brought to our notice that in the para 5 page 1 of assessment order, the AO has stated that the amount claimed u/s 10(38) of the Act as exempt long term capital gain was Rs. 36,77,667/- whereas on the last page of assessment order in para 2 the AO stated that bogus long term capital gain of Rs. 37,87,500/- which was ultimately added in the income of the assessee. Accordingly in our opinion, the issue needs to be examined at the level of the AO as to what is the amount of long term capital gain accruing to the assessee from sale of equity shares. Accordingly we restore the issue back to the file of AO with the direction to examine the issue and decide the same afresh.

4.

In the result, the appeal of the assessee is partly allowed for statistical purposes. Order is pronounced in the open court on 26th April, 2023

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