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Income Tax Appellate Tribunal, BENCH “E”,MUMBAI
Before: SHRI P.K.BANSAL & SHRI PAWAN SINGH
Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JM: 1. This appeal filed by assessee u/s 253 of the Income-tax Act (‘Act’) is directed against the order of Ld. Commissioner of Income-tax (Appeals) [for short ‘the CIT(A)] –25, Mumbai dated 23.11.2009 for Assessment Year (AY) 2003-04. The assessee has raised the following grounds of appeal:
1. The Learned Commissioner of Income tax (Appeals)-25 erred in law and on the facts of the case in confirming that the assessment order passed u/s. 143(3) in within the statutory period and hence cannot be treated as null and void.
2. The Learned Commissioner of Income tax (Appeals)-25 erred in law and on the facts of the case in confirming the disallowance of expenses of Rs. 1,91,458/-.
3. The Learned Commissioner of Income tax (Appeals)-25 erred in law and on the facts of the case in confirming the addition of Rs. 8,00,000/- made u/s 68 being gift received from Mr. Mahesh Aswani.
4. The Learned Commissioner of Income tax (Appeals)-25 erred in law and on the facts of the case in confirming the addition of Rs. 19,89,015/- as income from undisclosed sources u/s. 56 being long term capital gain as sale of shares.
2 Mrs. Sharmila N. Patel.
Brief facts of the case are that the assessee filed return of income for relevant AY on 30.10.2003 declaring total income at Rs. 29,31,363/-. The assessment was completed u/s. 143(3) on 30.03.2006. While making assessment, the Assessing Officer (AO) besides other addition/disallowance treated the Long Term Capital Gain (LTCG) of Rs. 19,86,015/- under the head “Income from Other Sources”. On appeal before the ld. CIT(A), the order of AO was upheld. Thus, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us.
We have heard ld AR for the parties and perused the material on record. The Ld. Authorized Representative (AR) of the assessee at the outset made a statement that she is not pressing ground No(s). 1 to 3 raised in the present appeal. The Ld. Departmental Representative (DR) has no objection. Thus, the ground No. 1 to 3 are treated as dismissed as not pressed.
Ground No.4 relates to the treatment of LTCG on sales of shares of Rs. 19,89,105/- under the head “Income from Other Sources”. The Ld. AR of the assessee argued that assessee purchased Shares of Media Metrix Worldwide Ltd. on 11.09.2001 and same was sold by assessee on 02.12.2008 and LTCG arise from sale of shares of Rs. 19,89,015/-. The AO disallowed the claim of the assessee on the basis of report in various Newspapers. The assessee during the assessment furnished the copy of purchase bill, sales bill, De-mate account along with share certificate and confirmation of the companies to prove the genuineness of the transaction. The AO relied upon the letter dated 04.02.2006 allegedly received from the Bombay Stock Exchange. The said letter was never brought to the notice of assessee. The AO used the information received from third party without giving an opportunity to counter the same. The assessee demanded the copy of the said letter but the same was not supplied. During the course of arguments before us, the Ld. AR of the assessee filed copy of letter dated 16.03.2009 issued by AO, informing the representative/C.A. of assessee, that the document are not available (letter of Bombay Stock Exchange dated 14.02.2006) in the record. The Ld. AR of the assessee further argued that ld. CIT(A) has not considered the sufficient evidence filed before him and without giving any finding on the documentary evidence filed by the assessee, confirmed the order of AO. On the other hand, ld. DR for the Revenue supported the order of 3 Mrs. Sharmila N. Patel. authorities below and would argue that the order of the authorities does not require any interference.
We have considered the rival contention of the parties and gone through the order of authorities below. We have considered the contents of letter dated 16.03.2009 filed by ld. AR of the assessee before us. We have further seen that neither the AO nor the ld. CIT(A) gave any finding on the various document furnished by assessee during the assessment as well as before the First Appellate Authority (FAA). Considering the peculiar circumstances of the case, we deem it appropriate to restore this issue to the file of AO to decide it afresh. Needless to say that AO shall afford the fair and reasonable opportunity to the assessee and will supply the information received from the Bombay Stock Exchange or any information in possession of AO. The AO is also directed to consider the documentary evidence furnished by assessee. The AO after considering the documentary evidence will pass the order in accordance with law.
In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on this 20th December, 2016. Sd/- Sd/- (P.K.BANSAL) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated 20/12/2016 S.K.PS Copy of the Order forwarded to :