TRISHALA VIKAS TANDON, MUMBAI v. CIT(A)-XII,

ITA 6973/MUM/2008 | 2004-2005
Pronouncement Date: 28-01-2011 | Result: Allowed

Appeal Details

RSA Number 697319914 RSA 2008
Assessee PAN AAGPS5354K
Bench Mumbai
Appeal Number ITA 6973/MUM/2008
Duration Of Justice 2 year(s) 1 month(s) 20 day(s)
Appellant TRISHALA VIKAS TANDON, MUMBAI
Respondent CIT(A)-XII,
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 28-01-2011
Date Of Final Hearing 18-10-2010
Next Hearing Date 18-10-2010
Assessment Year 2004-2005
Appeal Filed On 08-12-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH BEFORE SHRI D.K.AGARWAL JUDICIAL MEMBER & SHRI T.R.SOOD ACCOUNTANT MEMBER I.T.A.NO.6973/MUM/2008 A.Y 2004-05 MRS. TRISHALA VIKAS TANDON NEW INDIA CENTRE 12 TH FLOOR SOUTH WING 17 COOPERAGE ROAD MUMBAI 400 039. PAN: AAGPS 5354 K VS. THE INCOME TAX OFFICER 12 (2)(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHARAD V. SANGHAVI. RESPONDENT BY : SHRI S. K. SINGH. O R D E R PER T.R.SOOD AM: IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWI NG THREE GROUNDS: 1. THE LEARNED COMMISSIONER OF INCOME TAX [APPEALS]-XI I MUMBAI ERRED IN HOLDING THAT NO REASONS HAVE BEEN G IVEN AS TO WHY THE SUPPORTING EVIDENCE WERE NOT FILED BEFORE T HE ASSESSING OFFICER IN THE CIRCUMSTANCES THE DOCUME NTS FILED BY THE ASSESSEE ARE IN THE NATURE OF ADDITIONAL EVIDEN CES AND BOUND TO BE REJECTED. 2. THE LEARNED COMMISSIONER OF INCOME TAX [APPEALS]-XI I MUMBAI ERRED IN INTERPRETING CLAUSE (A) AND (B) OF SECTION 94(7). 3. THE LEARNED COMMISSIONER OF INCOME TAX [APPEALS]-XI I MUMBAI ERRED IN CONFIRMING DISALLOWANCE UNDER SECTI ON 94(7) AT ` `` ` .2 85 426 AS AGAINST RETURNED DISALLOWANCE UNDER SE CTION 94(7) AT ` `` ` .1 500 2. AFTER HEARING BOTH THE PARTIES WE FIND THAT THE LD. CIT[A] HAS DECIDED THIS ISSUE VIDE PARA 3.3 WHICH IS AS UNDER: 3.3 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT. THE APPELLANT HAD FILED THE DETAILS WITH THE SUPPORTING EVIDENCES AS TO HER CLAIM THAT THE PROVISIONS OF SECTION 94(7) DOES NOT APPLY TO HER CASE. THE DETAILS AND EVIDENCES WERE NOT FILED BEFORE THE ASSESSING OFFICER. IN HER SUBMISSIONS NO REASONS HAVE BEEN GIVEN AS T O WHY THE 2 SUPPORTING EVIDENCES WERE NOT FILED BEFORE THE ASSE SSING OFFICER. IN THE CIRCUMSTANCES THE DOCUMENTS FILED ARE IN THE N ATURE OF ADDITIONAL EVIDENCES AND ARE BOUND TO BE REJECTED FOR ADMISSIO N. EVEN ON MERITS THE PROPOSITION OF THE APPELLANT CANNOT BE ACCEPTED AS CLAUSE (A) AND CLAUSE (B) TO SECTION 94(7) HAS TO BE READ CONJOINT LY AND NOT IN ISOLATION OF EACH OTHER. THE SHARES OF PAPER PRODUC TS LTD. WERE PURCHASED PRIOR TO THE PERIOD OF THREE MONTHS AFTER THE RECORD DATE. THE APPLICATION OF THE PROVISIONS U/S.94(7) W.R.T. SHAH ALLOYS IS NOT DISPUTED. IN THE CASE OF THE UNITS PERTAINING TO SU NDARAM SELECT MID- CAP THE APPELLANT HAD MENTIONED THAT THERE ARE TWO RECORD DATES AND AS SUCH THE UNITS DO NOT FALL WITHIN THE PROVISIONS O F CLAUSE (A) & (B) OF SECTION 94(7) OF THE ACT AS IT IS SOLD AFTER THREE MONTHS OF THE RECORD DATE. THIS PROPOSITION OF THE APPELLANT IN INTERPRE TING CLAUSE (A) & (B) OF SECTION 94(7) INDEPENDENT OF EACH OTHER IS NOT E NVISAGED IN THE SAID PROVISION. AS SUCH THIS GROUND OF APPEAL IS REJECT ED. 3. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT T HE AO HAD FIXED THE HEARING ONLY ON TWO OCCASIONS WITHIN A SP AN OF ABOUT TEN DAYS AND THAT IS WHY THE ASSESSEE COULD NOT SUBMIT THE PAPERS AS MENTIONED BY THE CIT[A] BEFORE THE AO AND THAT IS WHY THE DOCUMENTS WERE SUBMITTED BEFORE THE CIT[A]. HE FURT HER SUBMITTED THAT THE CIT[A] HAS UNREASONABLY DECLINED TO ACCEPT THE SAME. HE ALSO SUBMITTED THAT THE VIEW TAKEN BY THE LD. CIT[A] ON MERITS HAS ALREADY BEEN REVERSED BY THE HON'BLE JURISDICTIONAL HIGH CO URT IN THE CASE OF CIT VS. SMT. ALKA BHOSALE 325 ITR 550. THEREFORE T HE MATTER MAY BE REMANDED BACK TO THE FILE OF THE AO FOR ADMISSION O F ADDITIONAL DOCUMENTS. 4. ON THE OTHER HAND LD. DR STRONGLY RELIED ON THE ORDER OF THE AO. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SMT. ALKA BHOSALE [SUPRA HAS HELD AS UNDER: SUB-S.7 OF S. 94 SPELT OUT THREE REQUIREMENTS; THE SE BEING [I] THE PURCHASE OF ACQUISITION OF ANY OF THE SECURITIES OR UNITS SHOULD TAKE 3 PLACE WITHIN A PERIOD OF THREE MONTHS PRIOR TO THE RECORD DATE; (II) THE SALE OR TRANSFER SHOULD TAKE PLACE WITHIN A PERIOD OF THREE MONTHS AFTER THE RECORD DATE; AND (III) THE DIVIDEND OR INCOME R ECEIVED OR RECEIVABLE SHOULD BE EXEMPT. IN THE EVENT THAT THESE THREE CON DITIONS ARE FULFILLED THE LOSS IF ANY ARISING FROM THE PURCHASE OR SALE OF SECURITIES OR UNITS HAS TO BE IGNORED FOR THE PURPOSE OF COMPUTING THE INCOME CHARGEABLE TO TAX TO THE EXTENT SUCH LOSS DOES NOT EXCEED THE AMOUNT OF DIVIDEND OR INCOME RECEIVED OR RECEIVABLE. EX FACIE ALL THE THREE CONDITIONS THAT ARE SPELT OUT IN CLS. (A) (B) AND (C) OF SUB-S.7 M UST BE FULFILLED BEFORE THE CONSEQUENCE THAT IS ENVISAGED IN THE SECTION CO MES INTO FORCE. IN THE PRESENT CASE THE SALE OF THE UNITS HAS TAKEN P LACE AFTER THE EXPIRY OF A PERIOD OF THREE MONTHS FROM THE RECORD DATE. HENC E THE SECOND CONDITION SPELT OUT FOR THE APPLICATION OF SUB-S.7 WOULD NOT COME INTO FORCE. THEREFORE THE CONDITIONS MENTIONED BY THE CIT[A] WHICH ACCORDING TO HIM WERE NOT FULFILLED STAND FULFILLED IN TERMS O F THIS DECISION. HOWEVER AS FAR AS THE DOCUMENTS IN THE COPY OF DIV IDEND WARRANT AND COPY OF STATEMENT OF ACCOUNTS WHICH HAVE BEEN FILED BEFORE US AT PAGES 19 TO 21 AND 23 TO 25 OF THE PAPER BOOK HAVE TO BE EXAMINED BY THE AO. THEREFORE IN THE INTERESTS OF JUSTICE WE SET ASIDE THE ORDER OF THE LD. CIT[A] AND REMIT THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE AFTER OBTAINING THE C OPIES OF THE DOCUMENTS WHICH HAVE BEEN FILED BEFORE US IN THE LI GHT OF THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SMT. ALKA BHOSALE [SUPRA]. 6. IN THE RESULT APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JANUARY 2011. SD/- SD/- (D.K.AGARWAL) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 28 TH JANUARY 2011. P/-* 4 COPY TO- 1) APPELLANT 2) RESPONDENT 3) CITA MUMBAI. 4) CIT CITY MUMBAI 5) DR BENCH MUMBAI TRUE COPY BY ORDER DY /ASST.REGISTRAR ITAT MUMBAI. SR.NO. PARTICULARS DATE INITIALS 1 DRAFT DICTATED ON 17-1-11 P 2 DRAFT PLACED BEFORE AUTHOR 18-1-11 P 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO SR.PS/PS 6 ORDER KEPT FOR PRONOUNCEMENT 7 FILE SENT TO BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE A.R 10 DATE OF DISPATCH OF ORDER