LATE SHRI VISHWA NATH SAHNI,NEW DELHI vs. DCIT, NEW DELHI

The brief facts of the case are that the assessee filed the return declaring income of Rs. 47,31,544,/- on 22.10.2007. However, the assessee also filed revised return of income on 27-01-2009 declaring income of Rs19,18,873/-, which was processed u/s 143(1) of the IT Act 1961. The case was selected for scrutiny under CASS-AIR category. Accordingly, notices u/s 143(2) & u/s 142(1) were issued from time to time and served upon the assessee. In response to above statutory notices, the AR of the assessee appeared from time to time and filed the necessary details as called for in respect of sources of investments made in Mutual Funds and shares have been furnished by the assessee which have been examined with reference to the details and documents as per record and furnished during the course of assessment proceedings. During the course of assessment proceedings, it was noticed by the AO that in the original return of income, the assessee had declared an income of Rs 47,31,544./- which included Short Term Capital gain Income of Rs 47,31,554/- from sale of shares/units bf mutual funds, which was revised to Rs.19,18,873/-, in the revised return of income. It has been explained by the assessee that due to, wrong understanding of law entire capital gain of Rs. 47,31,554/- was returned under the head 'Short Term Capital Gain u/s 111A and that there were 'certain clerical calculation errors which also required revision. AO observed that since the assessee could not filed any evidence in respect of his contentions and the assessee himself has disclosed this as STCG in the original return, the whole amount of Short term capital gain of Rs. 47,31,554/- (rounded off to Rs. 47,31,550/-) was assessed as STCG income by completing the assessment u/s. 143(3) of the I.T. Act, 1961 on 27.11.2009.

Aggrieved with the assessment order, assessee appealed before the Ld. CIT(A) who vide impugned order dated 18.3.2015 has held that the AO has correctly concluded in the assessment order that the assessee failed to file any evidence in respect of his contentions in support of revised return and dismissed the appeal of the assessee.

Against the order of the Ld. CIT(A), assessee is in appeal before the Tribunal.

During the hearing, Ld. Counsel of the assessee stated that Ld. CIT(A) has erred in confirming the returned income of Rs. 47,31,554/- as against the revised income of Rs. 19,18,873/-. Ld. Counsel further stated that original return of income was filed on 22.10.2007 declaring assessable income of Rs. 47,31,554/- and later it was noticed that due to wrong understanding of law, the entire capital gain of Rs. 47,31,554/- was returned under the head STCG u/s. 11A of the I.T. Act. It was further contention that there was certain clerical / calculations errors also which require revision. Therefore, the assessee re- 3 calculated his assessable income and filed a revised return at Rs. 19,18,873/-.

On other hand, Ld. DR has relied upon the orders of the authorities below and stated that the order of the Ld. CIT(A) is a well reasoned and the same does not need any interference on our part.

I have heard both the parties and perused the records, especially the orders of the revenue authorities and Paper Book filed by the assessee having various assessment and appellate proceedings documents/ evidences. I find that both the revenue authorities has observed that the assessee has failed to file any evidence in respect of his contentions in support of the revised return and on this account the revised return was not taken into account by the AO as well as by the Ld. CIT(A). However, it was the contention of the Ld. Counsel of the assessee that due to wrong understanding of law, the entire capital gain of Rs. 47,31,554/- was returned under the head “Short Term Capital Gain u/s 111A” of the I.T. Act, 1961 and there was certain clerical / calculations errors also which require revision. Therefore, in the interest of justice, I remit back the issues in dispute to the file of the AO to decide the issue in dispute on the basis of the revised return which has been filed by the assessee, as per law, after giving adequate opportunity of being heard to the assessee and the Assessee is also 5 directed to produce the relevant evidences/documents to substantiate his claim with regard to Revised Return and fully cooperate with the AO.

In the result, the Appeal of the Assessee is allowed for statistical purposes.