MR. HEMENDRA KUMAR,CHENNAI vs. ITO WARD 1, KANCHEEPURAM

PDF · subscribers
ITA 1301/CHNY/2018Status: DisposedITAT Chennai23 October 2018AY 2014-154 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found the issue identical to a previous case where the matter was remitted back to the Assessing Officer. The Tribunal directed the Assessing Officer to re-examine the claim after providing an opportunity for cross-examination.

What were the facts?

The assessees claimed deduction under Section 10(38) for long-term capital gains on share transactions. The Assessing Officer treated these shares as penny stocks and disallowed the deduction.

What were the issues?

Whether the long-term capital gains on share transactions are eligible for deduction under Section 10(38) when the shares are treated as penny stocks by the Assessing Officer.

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, ‘ B’ SMC BENCH : CHENNAI

Before: SHRI GEORGE MATHAN

For Respondent: Shri B.Sagadevan,JCIT,D.R

Heard together (3 matters)

I.T.A.No.1300/Chny/2018
I.T.A.No.1301/Chny/2018
I.T.A.No.1302/Chny/2018

Read from the judgment's own cause title. This page is filed under one of them.

आदेश / O R D E R

1.

All these appeals are filed by different assessees. the Commissioner of Income-tax (Appeals)-7, Chennai in is the appeal directed against the order of the Commissioner of Income-tax (Appeals)-7, Chennai in ITA No.165/16-17/CIT(A)-7,Chennai and ITA No.1302/Chny/2018 is the appeal directed against the order of the Commissioner of Income-tax (Appeals)-7, Chennai in ITA No.163/16- 17/CIT(A)-7, Chennai all dated 28.11.2017 for assessment year 2014-15.

Shri D.Anand represented on behalf of the Assessee and 2.

Shri B.Sagadevan represented on behalf of the Revenue.

3.

As all these three appeals of different assessees involved identical issue, the same is disposed off by this common order.

4.

It was submitted by ld.A.R that the issue in this appeal was against the action of Ld.CIT(A) confirming the addition made by the ld. Assessing Officer by not accepting the claim of deduction u/s.10(38) of the Act in respect of long term capital gains on purchase and sale of certain shares treated by the A.O as penny stock. to 1302/Chny/18 :- 3 -:

5.

In reply, it was submitted by ld.D.R that the issue was now squarely covered by the decision of Co-ordinate Bench of this Tribunal in the case of Deepak Bhattad (HUF) for assessment yeasr 2014-15 in vide order dated 19.09.2018 wherein the ‘A”

SMC Bench of this Tribunal has held as follows:-

“6. The fact situation here, is similar to the above two cases decided by the Co-ordinate Bench. We are therefore of the opinion that the transactions claimed by the assessee whether real or sham, requires a revisit by the Id. Assessing Officer. Similar directions as given in the cases of Vima/chand Ga/a bc/land, Praveen Chand, Gatraf ia/n & Sons (HUF) and Ma hen dra Kumar Bhandari (supra), read along with the directions given in the case of Heerachand Kanunga (supra) are given here also. Useful reference may be made to the law laid down by Hon’ble Apex Court in the case of CIT vs. Sunita Dhadda, SLP (Civil) No.9432/2018, dated 28.03.2018, while affirming a judgment of Hon’ble Rajasthan High Court in the case of CIT vs.Smt. Sun/ta Dhadda, where the importance of providing an opportunity to cross examine the witness has been stressed. Their lordship held that this was an important constituent of natural justice. Only after all the steps required under law is complete, it can be ascertained whether claim of capital gains was bogus or not. We therefore set aside the orders of the lower authorities and remit the issue back to the file of the Id. Assessing Officer for consideration afresh in accordance with law.”

It was a submission that on identical directions, the issue in these appeals can also be restored to the file of ld. Assessing Officer. to 1302/Chny/18 :- 4 -:

6.

I have considered the rival submissions. As it is noticed that the issues in these appeals are identical to the issues in the case of Deepak Bhattad (HUF) referred to supra and in fact, the shares transacted in are of the same company, the issues in these appeals are restored to the file of ld. Assessing Officer for re-adjudication in line with the decision of the A (‘SMC’) Bench of this Tribunal in the case of Deepak Bhattad (HUF) referred to supra.

7.

In the result, the appeal of the assessee is partly allowed for statistical purposes.

Order pronounced in the open court after conclusion of hearing on 23rd October, 2018, at Chennai.

More judgments on Section 10(38)

All 3,113 judgments and leading authorities on Section 10(38) →

Recent GST High Court judgments

Search GST case law →