M/s. Harshil Estate Ltd.,, Indore v. The ACIT.,, Indore

1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER ITA NO.82/IND/2010 A.Y. 2006-07 M/S. HARSHIL ESTATE LTD. INDORE PAN AABCH 2283 A APPELLANT VS ACIT-5(1) INDORE RESPONDENT APPELLANT BY : SHRI PRAKASH GUPTA CA RESPONDENT BY : SMT. APARNA KARAN SR. DR O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II INDORE DA TED 20.11.2009 ON THE GROUND THAT THE LD. ASSESSING OFFICER ERRED IN MAKING ADDITION OF RS.1 48 137/- ON ACCOUNT OF LONG TERM CAPITAL GAINS WITHOUT GIVING THE BENEFIT OF INDEXATION ACCORDING TO SEC. 112 AND THE COMMISSIONER (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE. 2. DURING HEARING OF THIS APPEAL I HAVE HEARD SHRI PRAKASH GUPTA LD. COUNSEL FOR THE ASSESSEE AND SMT. APARNA KARAN LEARNED SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSEE MOVED AN APPLICATION U/S 154 OF THE ACT ON 7.1.2009 FOR 2 RECTIFICATION OF DISCREPANCIES FOR BASIC INDEXATION ON LONG TERM CAPITAL GAINS AND TAX TREATMENT AS INDICATED U/S 48 AND 112 OF THE ACT THAT TOO WITHOUT PROVIDING OPPORTUNITY TO THE ASSESSEE FOR E XERCISING THE ACTION AS AVAILABLE TO IT I.E. TAX @20% AFTER INDEXATION OR 1 0% BEFORE INDEXATION. THE LD. COUNSEL FOR THE ASSESSEE ALSO INVITED MY AT TENTION TO CIRCULAR NO.14 (XL-35) OF 1955 (KABIR NIRYAN MANDIR BURHANP UR) CHOUKSEY METAL REFINERY (107 ITR 63) (GUJ) PAREKH BROS. VS. CIT (KER) DEVENDRA PRAKASH KALRA VS. CIT (97 TTJ 372) (DEL). THE LD. C OUNSEL FOR THE ASSESSEE SUBMITTED THAT PROPER OPPORTUNITY MAY BE P ROVIDED TO THE ASSESSEE. HOWEVER THE LD. SR. DR DEFENDED THE IMPU GNED ORDER. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. R EPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. KEEPING IN VIEW THE TOTALITY OF FACTS AND THE JUDICIAL PRONOUN CEMENTS MENTIONED ABOVE I AM OF THE CONSIDERED OPINION THAT ONE MORE OPPORTUNITY BE PROVIDED TO THE ASSESSEE. EVEN OTHERWISE UNDER THE FACTS NARRATED ABOVE NO PERSON SHOULD BE CONDEMNED IN THE ABSENCE OF PROPER OPPORTUNITY. THE LD. ASSESSING OFFICER IS DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE AND DECIDE AS PER THE PROVISIONS OF THE ACT FOR WHICH DUE OPPORTUNITY BE PROVIDED TO THE ASSESSEE. THE AS SESSEE IS AT FURTHER LIBERTY TO FURNISH EVIDENCE IF ANY TO SUBSTANTIAT E ITS CLAIM. 3 FINALLY THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST 2010. SD/- (JOGINDER SINGH) JUDICIAL MEMBER DATED: 30 TH AUGUST 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE !VYAS!