What did the Tribunal hold?

The tribunal dismissed ground 2, finding no illegality in the intimation under Section 143(1). For ground 3, the tribunal directed the Assessing Officer to re-examine the issue of double addition after hearing the assessee and verifying the evidence.

The assessee's appeal was listed for adjudication of grounds 2 and 3, which were not previously decided. Ground 2 challenged an enhancement of capital gains under Section 143(1) as illegal. Ground 3 argued that an addition of Rs. 1,41,347 on account of short-term capital gains was made twice.

What were the issues?

Whether an intimation under Section 143(1) can be considered illegal. Whether the addition of short-term capital gains was made twice, leading to double taxation.

Hitesh Dani vs I.T.O., Ward-29(3) | ITAT Kolkata 2020

Income Tax Appellate Tribunal, A (SMC

Before: Shri A. T. Varkey, JM ]

Hearing: 26.06Pronounced: 30.06.2019

On 26-06-2020 the Misc. Application No. 67/Kol/2020 for the AY 2008-09 was listed and heard and Misc. Application was partly allowed. It was also noted that ground nos. 2 and 3 raised in 20-12-2019. Therefore, while partly allowing the Misc. Application No. 67/Kol/2020 on 26-06-2020 it was ordered to recall the order dated 20-12-2019 passed in for the AY 2008- 09 for the limited purpose of adjudicating ground nos. 2 and 3.

It is noted that Ground nos. 2 & 3 which were not adjudicated while disposing off vide order dated 20-12-2019 reads as under:- 2. For that the enhancement of Capital Gains by Rs.1,41,347 was illegal and bad in law and beyond the scope of Section 143(1) of the Income Tax Act, 1961 and hence the same be deleted.

For that in the facts and circumstances of the case the Learned Commissioner of Income Tax Appeals erred in upholding an addition of Rs.1 ,41 ,347 on account of short term capital which was considered twice

while processing of return u/s 143(1)of the Income Tax Act, 1961. The addition is not called for and hence the same be deleted. 3. I note that for ground number 2, no material has been placed before me or reasons as stated in the Misc. Application does not spell out as to how the intimation issued under section143(1) of the Act can be termed as illegal when the law/Act empowers the AO to issue intimation to an assessee u/s. 143(1) of the Act. Therefore, ground no. 2 is dismissed.

Coming to ground no. 3, the main grievance of assessee is that the addition of Rs. 1,41,347/- was made twice. In other words, according to assessee, the assessee has offered the tax on STCG in the return of income and, therefore, the addition made of Rs. 1,41,347/- amounts to double/twice addition. It is trite law that tax can be imposed only once on a particular subject/item and if the assessee had shown the correct STCG and already had offered the correct tax on the STCG as per law while filing the return of income, then the AO to verify the same and if the assessee’s claim is found to be correct, then relief needs to be granted to the assessee as discussed above. In the light of above discussion, I direct the AO to adjudicate this issue afresh as per law and fact after hearing the assessee. The assessee is directed to produce all material/evidences, if so advised, to substantiate his aforesaid claim.

In the result, the appeal of assessee is partly allowed for statistical purpose as mentioned above.

Order pronounced in the open court 30 -06-2020

HITESH DANI,KOLKATA vs. I.T.O.,WARD-29(3), KOLKATA

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