DINESH H UDESHI,NAVI MUMBAI vs. ITO WD 22(3)(1), NAVI MUMBAI

On the facts and in the circumstances of the case and in law, the CIT (A) erred in treating the Short Term Capital Gains of Rs. 62,889/- as business income.

The order of the CIT (A) be vacated & justice be given to your appellant.”

At the outset, Ld Counsel for the assessee brought our attention to Form No.36, column no.9 and suggested that „the date of communication of the order appealed against‟ was wrongly mentioned as 26.11.2009 and for rectifying the same, revised Form No.36 was filed. In this regard he mentioned that the correct „date of communication of the CIT (A) order‟ is 13.9.2011. Bringing our attention to the said correct date, Ld Counsel for the assessee argued that there is no delay in filing of the appeal before the Tribunal. On verification of the relevant facts / dates, we find that there is no delay in filing of the appeal. Accordingly, we proceed to adjudicate the issues involved in the appeal on merits.

Further, bringing our attention to the paper book, Ld Counsel for the assessee suggested that the papers placed at Sl. No.4 to 6 and 11 to 15 constitute additional evidences. In order to demonstrate the acceptability of the said papers and the admittance of the said additional evidences, Ld Counsel for the assessee mentioned that these papers go to the root of the matter. These papers could not be produced before the AO / CIT (A) as they were obtained subsequently from the share transfer agents etc. Following are the relevant lines that constitute prayer for admittance of the additional evidences. “The appellant prays that the additional evidences be admitted since they are germane for deciding the issues in appeal. The appellant could not file these evidences before the AO & CIT (A) since the records were not available and had to be obtained through the share transfer agents, depository agents, etc. For such act of kindness, the appellant shall ever be obliged to your honours.”

After going through the grounds, we find, the main issue raised in this appeal relates to the „correct head of income‟ for taxing the gains earned on sale of shares. In our considered opinion, the documents mentioned above go to the root of the matter. Therefore, we find it necessary to admit the same for adjudication of the issue in question. Further, we have also heard Ld Representatives of both the parties on the requirement of remanding the issue to the file of the AO. Considering the need for remanding the matter to the file of the AO in view of the set principles of natural justice, we remand this issue to the AO‟s file and direct him to decide the issue after considering the said additional evidences and affording a reasonable opportunity of being heard to the assessee. Accordingly, Grounds raised by the assessee are allowed for statistical purposes.

In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 07th January, 2016. (JOGINDER SINGH) ACCOUNTANT MEMBER भुंफई Mumbai; ददनांक 7.1.2016 व.नन.स./ OKK , Sr. PS