2018 (2) TMI 1743 - AT - Income Tax

Assessment completed hurriedly without giving any opportunity to the assessee - entire assessment appears to be made only on the basis of the statement of Shri Ashok Kumar Kayan, who is considered to be a penny stock broker - Claim of exemption u/s.10(38) - Held that - Admittedly, the statement said to be recorded from Shri Ashok Kumar Kayan was not furnished to the assessee. It is also not known whether the purchase price of the shares was paid by cheque or by cash. AO observed that the assessee did not disclose the mode of payment of purchase price. In those circumstances, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the Assessing Officer. Accordingly, the orders of both the authorities below are set aside and the entire issue raised by the assessee is remitted back to the file of the Assessing Officer. - Appeal filed by the assessee is allowed for statistical purposes.

Summary

Issues:
Assessment completed without providing opportunity to assessee, reliance on statement not furnished to assessee, claim of long term capital gains under Section 10(38), investment in penny stock, lack of disclosure on mode of payment for share purchase.

Analysis:
The appeal was against the order of the Commissioner of Income Tax (Appeals) for the assessment year 2010-11. The assessee's counsel argued that the assessment was rushed without giving a proper opportunity to defend, based on a statement from a share broker not shared with the assessee. The counsel contended that the statement should have been provided for a fair defense. The assessee had submitted detailed purchase and sale records of shares. On the other hand, the Departmental Representative claimed that the share broker was involved in providing bogus long term capital gains through penny stocks, including those of Bakra Pratishtan Limited, in which the assessee had invested. The shares were allegedly dematerialized and sold at a much higher rate. The CIT(Appeals) upheld the Assessing Officer's decision.

Upon review, the Tribunal noted that the assessment heavily relied on the statement from the share broker, which was not shared with the assessee. The mode of payment for share purchase was also not disclosed. Considering these gaps, the Tribunal set aside the lower authorities' orders and remitted the issue back to the Assessing Officer. The Assessing Officer was directed to provide the statement to the assessee and obtain details on the payment mode for shares. The Tribunal instructed the Assessing Officer to reexamine the issue and make a fresh decision after giving the assessee a fair opportunity.

As a result, the appeal by the assessee was allowed for statistical purposes. The order was pronounced on 28th February 2018 in Chennai.