ATULBHAI AMRITLAL MEHTA,AHMEDABAD vs. DEPUTY COMMISSIONER OF INCOME TAX - CIRCLE 3(2) AHMEDABAD, AHMEDABAD

PER SIDDHARTHA NAUTIYAL - JUDICIAL MEMBER:

“1. The learned AO passed "High Pitched" order of assessment, under section 143(3), without making proper inquiries as per the provisions of section 142 of the Act before passing the order under section 143(3) of the Act. The addition of unsecured loans of Rs 11,62,800 and addition of exempt Long Term Capital Gain of Rs 248,90,919 under section 68 be deleted.

2. The learned Commissioner of Income Tax (Appeals) has erred in law and on facts in confirming the High Pitched Order of the Id. A.O. without taking into account the Additional Evidences placed on record as per the Rule 46A. The CIT Appeal has failed to do justice to the duty casted upon him and erred in passing the Atulbhai Amritlal Mehta vs. DCIT Asst.Year –2017-18 - 2– order without applying his mind to the submissions on record and without understanding the facts of the case. Further the Learned CIT Appeal has passed the order confirming additions to the tune of Rs 2,60,53,719/- resulting in demand of Rs 240,46,878/- without exercising the case and prudence that is expected from the office of CIT Appeals.

either before or during the course of hearing of the appeal.”

3. The brief facts of the case are that the assessment order was passed, wherein the claim of exemption of Long Term Capital Gains (in short “LTCG”) amounting to Rs. 2,48,90,919/- was denied to the assessee on the ground that the assessee had not furnished corroborative evidence in support of the exemption of LTCG claimed by the assessee. The Assessing Officer confirmed the addition in the hands of the assessee by observing that the assessee did not furnish any evidence such as brokers note, copy of account in brokers note, Demat Account, proof of payment of STT etc. Accordingly, the Assessing Officer held that the assessee has failed to establish his claim of exemption with any supporting evidence and hence the claim of the assessee was rejected. Besides the above the Assessing Officer also made another addition with respect to cash credit entries under Section 68 of the Act amounting to Rs. 11,62,800/-.

Atulbhai Amritlal Mehta vs. DCIT Asst.Year –2017-18 - 3–

4. In appeal, Ld. CIT(A) dismissed the appeal of the assessee on the ground that even during the course of appellate proceedings, the assessee did not furnish any corroborative evidences in support of Long Term Capital Gains exemption. Accordingly, Ld. CIT(A) confirmed the addition in the hands of the assessee with the following observation:-

“Reply to the appellant assessee has been perused. It is seen that the appellant assessee has been repeating the same reply. The pointed query of the AO has in-fact remained unanswered. The appellant assessee needs to evidently explain to the satisfaction of the AO the supportive documents regarding exemption of LTCG. It is clearly pointed out by the AO in his order to furnish the complete documentary evidences regarding claim of exemption of LTCG amounting to Rs. 2,48,90,919/- otherwise it will be treated as long term capital gain and is added back to the total income of the assessee. But the appellant assessee failed to do so. During the appellate proceedings the appellant assessee filed reply but failed to furnish the corroborative evidences in support of its claim. Therefore, I am of the considered opinion that the additions made by the AO are very reasonable considering the facts and circumstances of the case. Therefore, I do not find any reason to interfere with the order of the AO. In view of the above factual position, the additions made by the AO are hereby upheld. The ground of appeal is dismissed. The addition of Rs. 2,48,90,919/- on account of Long Term Capital Gain, in the hands of the assessee is hereby sustained and ground raised by appellant is dismissed.”

5. The assessee is in appeal before us against the aforesaid additions confirmed by Ld. CIT(A). Before us, the Counsel for the assessee submitted that the Ld. CIT(A) has confirmed the addition, without taking into consideration the detailed supporting evidences filed by the assessee in support of the claim of LTCG exemption. The Counsel for the assessee drew our attention to Pages 4-12 of the Paper Book and submitted that the assessee had filed various details like demand statement, ledger account of the broker, bills of shares purchased and sold during the impugned year under consideration, assessee’s ledger from broker’s book with script wise summary showing gain / loss from each script etc. in support of the claim of Atulbhai Amritlal Mehta vs. DCIT Asst.Year –2017-18 - 4– Long Term Capital Gains exemption claimed by the assessee. However, Ld. CIT(A) while passing the order did not take into consideration the various details and corroborative evidences filed by the assessee at the portal of Ld. CIT(A) and further, while dismissing the appeal of the assessee, Ld. CIT(A) give a specific findings that the assessee has failed to furnish corroborative evidences in support of it’s claim for LTCG. The Counsel for the assessee submitted that the order has been passed by Ld. CIT(A) against the principle of natural justice, and without considering the corroborative evidences filed by the assessee during the course of appellate proceedings. Accordingly, it was submitted that since the order passed by Ld. CIT(A) is against the principles of natural justice, and despite the assessee having validly filed all corroborative evidences, the appeal of the assessee has been dismissed with a specific observation that the asssessee has failed to file any corroborative evidences, and therefore, the matter may be restored to the file of Ld. CIT(A), with a direction to take into consideration the various details / corroborative evidences filed by the assessee and thereafter, pass an order in accordance with law.

6. On going through the records of the assessee’s case, we observe that the assessee had filed various details and evidences before Ld. CIT(A) during the course of appellate proceedings, which have not been considered by Ld. CIT(A) while dismissing the appeal of the assessee on the issue of claim of exemption of LTCG and also in respect of addition made under Section 68 of the Act. We further observe that the assessee had placed on record evidences so that various details and corroborative evidences had, in fact, been filed at the portal of Ld. CIT(A), however, the same had not been Atulbhai Amritlal Mehta vs. DCIT Asst.Year –2017-18 - 5– considered by Ld. CIT(A) while passing the order. Accordingly, looking into the instant fact, and in the interest of justice, the matter is being restored to the file of Ld. CIT(A) for de-novo consideration and to pass order in accordance with law after taking into consideration various details and corroborative evidences furnished by the assessee in support of it’s claim for exemption from LTCG and additions under Section 68 of the Act.