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Income Tax Appellate Tribunal, BENCH “SMC”, KOLKATA
Before: Hon’ble Shri N.V.Vasudevan, JM]
This is an appeal by the assessee against the order dated 09.03.2015 of CIT(A)-Asansol relating to A.Y.2008-09.
The assessee is an individual. During the previous year relating to A.Y.2005-06 the assesse filed the return of income declaring Long Term Capital Gain on sale of shares of Rs.12,32,025/-. The AO issued an intimation u/s 143(1) of the Income Tax Act, 1961 (Act) dated 03.02.2010 accepting the income returned by the assessee.
The assessee filed an application u/s.154 of the Act before AO pointing out that the Long Term Capital Gain on sales of shares was wrongly offered to tax and that the same was exempted u/s 10(38) of the Act. The assessee prayed that apparent error u/s 10(38) of the Act be rectified. The AO, however, held by this order dated 28.10.2010 passed u/s 154 of the Act that the assessee had not given the relevant details of acquisition and proof of payment of STT and therefore the request of the assessee for rectification cannot be accepted.
2 Madhabi Nag. A.Yr.2008-09 4. Aggrieved by the order of AO the assessee preferred appeal before CIT(A). The CIT(A) was of the view that the assessee offered to tax the long term capital gain in the return of income filed by him. The assessee had not filed the revised return of income claiming exemption of long term capital gain u/s 10(38) of the Act. The CIT(A) relied on the decision of the Hon’ble Supreme Court in the case of Goetze (India) Ltd Vs CIT 284 ITR 323 (SC) and was of the view that the assessee cannot make a claim which is not supported by a revised return of income. He therefore held that the AO rightly dismissed the application of the assessee u/s 154 of the Act.
Aggrieved by the order of CIT(A) the assessee has preferred the present appeal before the Tribunal.
I have heard the rival submissions. The CBDT Circular No.14 of 1955 dated 11.04.1955 has taken a view that the officers of the department must not take advantage of ignorance of the assessee about his rights and it is their duty to assist the tax payer in every reasonable way particularly in the matter of claiming and securing reliefs. In my view therefore the revenue authorities ought not to have rejected the application u/s 154 of the Act on the ground that the assessee has not filed the revised return of income. The CIT(A) has placed reliance on the decision of the Hon’ble supreme Court in the case of Goetz (India) Ltd. (supra) for sustaining the order of the AO u/s 154 of the Act. The Hon’ble Supreme Court in it’s decision rendered in the case of Goetze (India) Ltd vs CIT has clarified that the appellate authorities under the Act have the power to consider the claim even if the business of the revised return of income. In my view, therefore, the claim of the assessee that Long Term Capital Gain is exempt u/s 10(38) of the Act has to be examined by the AO. It is seen from the order of AO u/s 154 of the Act that the AO wanted details of acquisition and proof of payment of STT. I therefore set aside the order of CIT(A) and remand the question of exemption of Long Term Capital Gain u/s 10(38) of the Act to the AO for fresh consideration. The assessee is directed to file necessary evidences before the AO to substantiate his claim.
Order pronounced in the court on 09.12.2015. Sd/- [N.V.Vasudevan] Judicial Member Date: 09.12.2015. R.G.(.P.S.) Copy of the order forwarded to:
Madhabi Nag, Vill + P.O. Beliatore, bankura-722203.