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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI C.N. PRASAD, JM & SHRI MANOJ KUMAR AGGARWAL, AM
सुनवाई क� तार�ख / : 29/11/2016 Date of Hearing घोषणा क� तार�ख / : 18/01/2017 Date of Pronouncement आदेश / O R D E R Per Manoj Kumar Aggarwal (Accountant Member) 1. The captioned appeal by revenue for Assessment Year [AY] 2010-2011 assails order of Ld. Commissioner of Income Tax (Appeals)-9 [CIT(A)], Mumbai dated 15/07/2014 qua relief to assessee in respect of Long Term Capital Gains.
DCIT Vs. M/s Lakhi Gems Impex Pvt Ltd. Assessment Year 2010-11 2. Briefly stated, the assessee was engaged in trading in bonds and shares and filed its return of income for impugned AY on 24/07/2010 declaring total income of Rs.3,73,71,880/- which was picked up scrutiny assessment u/s 143(3) wherein total income of the assessee was determined at Rs.7,11,15,680/- vide Assessing Officer [AO] order dated 14/03/2013 after making certain disallowances. The assessee earned long term capital gains from sale of certain debt oriented mutual funds namely ‘Birla Sunlife FTP-Institutional-Series AQ- growth’ and claimed the same to be exempted. AO noticed that the Long Term Capital Gain on sales of these units, being debt fund, was not exempted but the same was taxable @10% without indexation or 20% with indexation benefit. The assessee while admitting the mistake, recomputed gain on units by taking benefit of indexation and thus arrived at long term capital loss of Rs. 1.43 Crores. AO relying upon judgment of Apex Court in ‘Goetz India Ltd. Vs. CIT’ rejected revised computation of the assessee and added long term capital gain of Rs.3,34,42,500/- to the income of the assessee and completed the assessment. The assessee contested the same successfully before Ld. CIT(A) who noted that AO nowhere disputed the claim of the assessee but disallowed the same only on the ground that the assessee did not claim the same by way of filing revised return. Further, by accepting this claim of the assessee, there was no reduction in original returned income and secondly, the assessee could not carry forward the loss due to non filing of revised return. Aggrieved, the revenue is in appeal before us.
The Ld. DR relies on the stand of AO and above cited Apex court judgment and contended that the revised claim of the assessee could not be accepted except by way of filing revised return of income. Per contra, the Ld. AR supported the stand taken by Ld. CIT(A) and contended that it was only due to inadvertent error that correct computation of units could not be worked out at the time of filing original return of income but nevertheless the claim of the assessee was genuine and nowhere disputed by the revenue, and hence DCIT Vs. M/s Lakhi Gems Impex Pvt Ltd. Assessment Year 2010-11 rightly been found admissible by Ld. CIT(A). The Ld. AR fairly conceded that the matter be restore back to the file of AO to verify the re-computation and claim of the assessee in this regard.
We have heard rival contentions and perused relevant material on record. We find that the claim of the assessee is nowhere in dispute. The CIT(A) provided the relief to the assessee by noting that there was no reduction in the original income returned by the assessee and also, the assessee was not entitled to carry forward the loss on units as it failed to claim the same by way of revised return of income. It is well settled law that the revenue should not take advantage of the assessee’s ignorance and whatever reliefs are available to the assessee as per law, the same should be allowed to him in terms of principles of natural justice. Further, the revenue is bound to assess the correct income of the assessee. Therefore, keeping in view the same, while dismissing appeal of revenue, we are inclined to restore the matter back to the file of AO for limited purpose of verifying re-computation and claim of the assessee and allow the same as per law after due verification. The assessee is directed to cooperate with the lower authorities in this regard filing which the AO shall be at liberty to finalize the same on the basis of material available on record.
The appeal of the revenue stands dismissed for statistical purposes. Order pronounced in the open court on 18th January, 2017.
Sd/- Sd/- (C. N. Prasad) (Manoj Kumar Aggarwal) �या�यक सद�य / Judicial Member लेखा सद�य / Accountant Member मुंबई Mumbai; �दनांक Dated : 18.01.2017 Pooja K. Pooja K., PS Pooja K. Pooja K. , PS , PS , PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to :