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Income Tax Appellate Tribunal, “SMC-B” BENCH : BANGALORE
Before: SHRI ARUN KUMAR GARODIA
O R D E R
Per Shri A.K. Garodia, Accountant Member
This appeal is filed by the assessee which is directed against the order of ld. CIT(A) – 5, Bangaloredated 11.01.2018 for Assessment Year 2008-09.
The grounds raised
by the assessee are as under. “1. The learned Assessing Officer had erred in passing the order in the manner passed by him and the learned Commissioner of Income tax (Appeals) has erred in confirming the same. The impugned orders being bad in law, void ab-initio are required to be quashed. 2.1 In any case, the conditions precedent for the issue of notice u/s. 148 of the Act being absent, the re-opening of assessment becomes bad in law and consequently the order as passed/confirmed being also bad in law is required to be quashed. 2.2 In any case the assessing officer having not complied with legal provisions / procedure for reopening / reassessment, the consequential order becomes bad in law and liable to be quashed.
3. In any case the order passed in gross violation of the principles of natural justice and fair play, especially in the absence of the cross examinations of the persons whose averments are sought to be relied upon by the Assessing Officer while passing the order, makes the order totally had in law and liable to be cancelled.
4. The learned Assessing Officer has erred in making addition of Rs. 24,26,250/- to the income of the appellant and the learned CIT (A) -5 has erred in confirming the same. The addition to the income is bad in both law and on facts and is liable to be deleted in entirety.
The authorities below have not properly appreciated the facts of the case. On proper appreciation of the facts and law applicable, it will be clear that the addition as made/confirmed has no basis to stand and is liable to be deleted in entirety.
6. In any case, the appellant having never dealt with the shares of IFCI ltd., the addition as made and confirmed by authorities below is totally on erroneous premise is to be deleted.
7. The various conclusion and observations made / drawn by the Assessing Officer in the course of assessment has no justice and are based only on surmises, conjectures and hearsay, hence are to be disregarded in toto.
The appellant denies liability to pay interest/s 234A, 234B and 234C of the Act. The interest having been erroneously levied is to be deleted.
In view of the above and other grounds to be adduced at the time of hearing, it is requested that the impugned order be quashed or atleast the income from Long Term Capital Gain earned on sale of shares as returned by the appellant be accepted, the assessment of Rs. 24,26,250/- under the head Income from Other Sources be deleted and the interest levied be also deleted.”
At the very outset, it was submitted by ld. AR of the assessee that in the present case, the addition was made by the AO is on the basis of statement of Shri Mukesh Choksi, Director of M/s. Mahasagar Securities Pvt. Ltd. She submitted that under similar facts in the case of Shri Mukesh Kumar Solanki vs. ITO in dated 17.03.2017, the Tribunal has restored the matter back to the file of AO for fresh decision with the same directions as were given by Hon'ble Karnataka High Court in a judgment rendered in the case of Chandra Devi Kothari in Writ Petition No. 39370/2014 dated 02.02.2015. She submitted a copy of this Tribunal order and requested that in the present case also, this issue should be restored back to the file of AO for fresh decision with the same directions. The ld. DR of revenue supported the orders of authorities below.
I have considered the rival submissions. I find force in the submissions of ld. AR of the assessee because no difference in facts could be pointed out by ld. DR of revenue. I reproduce paras 5 and 6 of this Tribunal order rendered in the case of Shri Mukesh Kumar Solanki vs. ITO(supra). The same reads under. “5. I have considered the rival submissions and first of all, I reproduce Para No.8 of the judgment of Hon'ble Karnataka High Court rendered in the case of M/s Chandra Devi Kothari (Supra) and this is as under:- 8. In the light of the facts and circumstances as adverted to above, and as the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount, I am of the view that the matter requires to be re-considered by the respondent by providing fair and reasonable opportunity of hearing to the petitioner and by furnishing the details/copy of the statement based on which the impugned assessment order has been passed." 6. From the above Para from the judgment of Hon'ble Karnataka High Court, it is seen that matter was restored back to the file of the AO for fresh decision after providing copy of the statement ofShri Mukesh Choksi. As per the facts noted by the High Court in the earlier paras of judgment and as per the facts of the present case, I find that the facts are similar and ld DR of the Revenue also could not point out any difference in facts and hence, by respectfully following this judgment of Karnataka High Court, I set aside the order of ld CIT(A) and restore the matter to the file of the AO for fresh decision with the same directions as were given by the Hon'ble Karnataka High Court in the case as per Para No.8 of the judgment reproduced above. In view of this decision, no adjudication is called for at this stage regarding the merit of the addition.”
5. Respectfully following this Tribunal order, I decide this issue in the present case also on similar line and restore this matter back to the file of AO for fresh decision with the same directions as were given by Hon'ble Karnataka High Court in the case of Chandra Devi Kothari(supra) as per para 8 of the judgment which is reproduced above.In view of this decision, no adjudication is called for regarding merit of the addition at this stage.
Regarding the second issue raised in these appeals in respect of validity of assessment proceedings, it was submitted by ld. AR of assessee that this issue is not pressed and accordingly this issue is rejected as not pressed.
In the result, the appeal filed by the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on the date mentioned on the caption page.