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

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.

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.

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.

Ground No. 1 & 2 raised by the assessee relates to challenging the order of Ld. CIT(A) in confirming the 3 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.

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.

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 .

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.

After analyzing the documents placed on record I found that assessee suffered loss of Rs.37,932/- instead of gain.

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, 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.

In the result the appeal filed by the assessee stands allowed.