NILESH N SHAH,MUMBAI vs. ITO 17(2)(4), MUMBAI

The present appeal has been preferred by the assessee against the order dated 05.01.2017 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2011-12.

The short facts of the case are as under: The assessee filed return of income on 27.07.2011 declaring total loss at Rs.11,32,996/-. However, the Assessing Officer (hereinafter referred to as the AO) found that in the profit and loss A/c. LTCG of Rs,11,05,521.42 was shown but the computation of total income reflected LTCG was of Rs.4.70 lakhs only. It was also noticed that excess LTCG of Rs.20,29,574/- was not reflected in the computation of total income. Thus the AO was satisfied that income chargeable to tax for A.Y. 2011-12 to the extent of Rs.6,35,521/- and excess exempt income of Rs.20,29,574/- has escaped assessment within the meaning of section 147. Accordingly, the assessment was reopened by issue of

During the course of assessment proceeding, assessee has claimed long term capital gain of Rs.20,29,574/- reflecting in profit & loss account as exempt. In this respect, assessee has stated that long term capital gain on sale of shares has been paid off. No documentary evidence as to the long term capital gain being exempt and as to payment of STT on the said long term capital gain has been furnished by the assessee. In view of this, the claim of exemption of Rs.20,29,574/- was disallowed.

Matter carried to the Ld. CIT(A) and the Ld. CIT(A), based on the same reason taken by the AO, has dismissed the appeal of the assessee.

During the course of hearing, the Ld. A.R. submitted that the assessee has not produced any evidence in respect of long term capital gain before the AO and the Ld. CIT(A). Similarly, assessee has not produced any evidence in respect of long term capital gain of Rs.6,35,521/-. He wanted to go back to AO on the reason that assessee wanted to produce the evidence. Therefore, in the interest of justice and fairplay, I restore this matter back to the file of AO and the AO is directed to decide the matter accordingly.

Ld. D.R. has no objection to it.

In the result, appeal of the assessee is allowed.