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Income Tax Appellate Tribunal, DELHI BENCH: ‘F’ NEW DELHI
Before: SH. AMIT SHUKLA & SH.ANADEE NATH MISSHRA
PER ANADEE NATH MISSHRA, ACCOUNTANT MEMBER (A). The present appeal has been filed by the assessee against the order dated 30.01.2008 of CIT(A)-II, Dehradun pertaining to A.Y. 2005-06. Ground of appeal is as under:-
“That on facts and in the circumstances of the case and in law the authorities below erred in denying exemption claimed by the appellant u/s 10(38) of the Income Tax Act, 1961 and in making addition amounting to Rs.1,04,67,196/- as unexplained money u/s 69A of the Act. The action being most arbitrary, erroneous, unjustified and illegal must be quashed.” (B). In this case, assessment order dated 31.12.2007 was passed u/s 143(3) of I.T.Act, 1961 (in short “Act”) wherein addition of Rs.1,04,67,196/- was made u/s 69A of the Act on account of bogus sale of shares. Vide order dated 19.11.2008, Ld.CIT(A) confirmed the addition. Aggrieved, the assessee is in appeal in ITAT. At the time of I.T.A .No.-285/Del/2009 Smt. Pinky Goel, vs ITO
Page 2 of 4 hearing before us, at the outset, Ld. Counsel for the assessee drew our attention to order dated 19.04.2017 of Co-ordinate Bench of ITAT, Delhi in the case of Smt. Kanta Devi (in for A.Y. 2005-06) wherein ITAT remanded the matter before the Assessing Officer (in short “AO”); and pleaded that in the case of the present assessee also, now in appeal before us, the matter should be remanded before the AO because, he pleaded, the facts and circumstances of the two cases are identical. Copies of assessment order passed by the AO and appellate orders passed by Ld.CIT(A) and by ITAT in the case of Smt. Kanta Devi (supra) were filed in support of this plea. The Ld. DR appearing for Revenue was unable to point out any distinguishable facts and circumstances between the cases of Smt. Kanta Devi (supra) and the present assessee now in appeal before us, and agreed with the submissions made by Ld. Counsel for the assessee. Relevant portion of order of the Co-ordinate Bench of ITAT, Delhi in the case of Smt. Kanta Devi (supra) is reproduced as under:-
“The brief facts of the case are that the assessee has shown purchase of shares of M/s Rohan Finance Company and M/s Subhash Capital Ltd. These shares were claimed to be sold as set out in the assessment order by the Assessing Officer. The Assessing Officer conducted enquiries which were further confronted to the assessee. Subsequently, the A.O has conducted more enquiries and the information collected from CIC, Calcutta, DDIT (Investigation) and Registrar Share Transfer Agent which revealed that booking of long term capital account by the assessee is nothing but manipulation carried out with active conveyance of the tender broker as per the Assessing Officer. The Assessing I.T.A .No.-285/Del/2009 Smt. Pinky Goel vs ITO Page 3 of 4 Officer made an addition of Rs.60,38,146/- as unexplained money u/s 69A on account of shares sold by the assessee.
Aggrieved by this the assessee filed appeal before the CIT(A). The main contention of the assessee before the CIT(A) was that various evidence such as communication of the broker with the DDIT (Inv.) Kolkata was not furnished to the assessee or confronted of any material in A.O’s possession to the assessee at any point of time during assessment proceedings. The assessee’s further ground before the CIT(A) was that the assessee was given copies of some documents received from Calcutta Stock Exchange and DDIT (Inv.) Kolkata on 27/12/2007 while show cause notice was issued one day prior i.e. 26/12/2007. Thus, assessee was given only a day’s time for reply and compliance to complete the formality of confrontation of evidence to be used in assessment proceedings which was against the principles of natural justice. The assessee also submitted before the CIT(A) that the assessee was not given any opportunity as such about the material which was submitted before the Assessing Officer by the DDIT (Inv.) Calcutta. The CIT(A) vide dismissing the appeal of the assessee has also not given any detailed reasoning in respect of the said documents.
The Ld. AR submitted that since the evidence which was before the Assessing Officer was not confronted to the assessee and no opportunity was given to the assessee for pleading his case before the Assessing Officer, it will be appropriate to remand the matter before the Assessing Officer and the Assessing Officer be directed to take cognizance of all the materials placed before the DDIT ((Inv.) Calcutta and the Calcutta Stock Exchange documents by giving proper hearing to the assessee before the Assessing Officer . The Ld. DR agreed the submissions made by the Ld. AR.
We have heard both the sides. It is pertinent to note that the Assessing Officer as well as the CIT(A) has not given any findings in respect of the documents received by the Assessing Officer from DDIT (Inv.) Calcutta and Calcutta Stock Exchange. No ample opportunity was granted to the assessee before the Assessing Officer. Hence, in the interest of justice it is appropriate to remand this matter before the Assessing Officer by taking cognizance of all the documents and giving opportunity of hearing to the assessee for confronting the said documents and pleading her case before the Assessing Officer.” (C). In view of the foregoing facts and circumstances; and the position brought to our attention by the two sides; and respectfully following the order of the Co-ordinate Bench of ITAT, Delhi in the case of Smt. I.T.A .No.-285/Del/2009 Smt. Pinky Goel vs ITO
Page 4 of 4 Kanta Devi (supra) in facts and circumstances that were not distinguished by the Revenue in the case of the present assessee now in appeal before us; we set aside the matters raised in ground of appeal to the file of the Assessing Officer with a direction to pass fresh order as per law after taking cognizance of all the documents and giving opportunity of hearing to the assessee for confronting the said documents and pleading her case before the AO. This decision was pronounced orally by the Bench in open Court after conclusion of hearing on 01.05.2017.
(D). For statistical purposes, this appeal of the assessee is partly allowed. This written order pronounced in open court on 02nd May 2017.