What did the Tribunal hold?

The Tribunal noted that the assessee failed to produce evidence for the claimed transactions and that notices were unserved. While the revenue objected to a remand, the Tribunal, in the interest of justice, remanded the issue to the CIT(A) for fresh consideration and proper service of notices.

The assessee claimed a capital loss on the sale of shares, which was disallowed by the AO. The CIT(A) passed an ex parte order confirming the disallowance as notices sent to the assessee were returned unserved. The assessee sought an adjournment before the ITAT, which was rejected.

What were the issues?

Whether the CIT(A) was justified in confirming the disallowance of capital loss on sale of shares by passing an ex parte order without proper service of notices on the assessee.

Smt. Sweta N Gandhi, Mumbai vs DCIT | ITAT Kolkata 2017

Income Tax Appellate Tribunal, ‘D’BENCH,

Before: Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi

This appeal by the assessee is against the order dt: 30-12- 2015 passed by the Commissioner of Income Tax (Appeals),13, Kolkata for the assessment year 2004-05.

The only ground in this appeal of assessee whether the CIT-A justified in confirming the disallowance of capital loss of Rs.9,46,325/- on sale of shares by passing an ex parte order in the facts and circumstances of the case.

It is noticed that none was appeared on behalf of assessee at the time of hearing before us. However, vide letter dt. 23- 04-2017 ( copy of the same is available on record ) the IT A No. 2109/Kol/16 Smt. Sweta N Gandhi 1 assessee sought for adjournment. It is noticed from the impugned order that the CIT-A passed ex parte order, therefore, we proceed to hear the ld.DR and perusing the material available on record dispose off the same on merits. Hence, the adjournment petition filed by the assessee is rejected.

It further is noticed from the record that the notices sent to assessee were returned unserved, thereby, CIT-A passed an order ex parte confirming the impugned addition made by the AO.

The ld.DR submits that it is a case of non submission of details of capital gain from the sale of shares. The assessee was asked to provide all the details relating to the issue and the assessee did not produce anything before AO and thereby, the AO disallowed the loss of Rs.9,46,325/- as claimed by the assessee. The CIT-A issued notices fixing the hearing on three occasions and all the notices were returned unserved. The ld.DR argued that all the transactions as claimed in the assessment proceedings are bogus. He supported the order of AO.

Heard the ld.DR and perused the record. We find that the assessee could not produce any evidence to show that the transaction as claimed to substantiate the relief sought in return of income. All the notices issued by the CIT-A were returned unserved. The ld.DR objected to remand the issue to the file of CIT-A. But, however, in the interest of justice, we remand the issue to the file of CIT-A for his fresh consideration and to take step to serve the notices on assessee and to pass IT A No. 2109/Kol/16 Smt. Sweta N Gandhi 2 an order in accordance with law. Therefore, the ground(s) raised by the assessee are allowed for statistical purpose.

In the result, the appeal of the assessee is allowed for statistical purposes. ORDER PRONOUNCED IN OPEN COURT ON 26/04/2017 Sd/- Sd/- Waseem Ahmed S.S. Viswanethra Ravi Accountant Member Judicial Member Dated 26-04-2017

*PP/SPS: Copy of the order forwarded to: 1. The Appellant/Assessee: Smt. Sweta N Gandhi C/o N.I Gandhi, Lyka Labs Ltd 101 Shiv Shakti Indutrial Estate, Andheri (E), Mumbai 400059. 2 The Respondent/Department: The Dy. Commissioner of Income Tax, Circle-40, Kolkata. 3 The CIT(A) The CIT 4. DR, Kolkata Bench 5.

SMT. SWETA N GANDHI,MUMBAI vs. DCIT, CIRCLE 40, KOLKATA, KOLKATA

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