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2013 (2) TMI 600 - HC - Income TaxSale of shares - ITAT affirmed the deletion of a sum by the CIT(Appeals) on account of long term capital gains assessed by the AO on sale of shares - survey u/s 133A - Jamil A. Khan had admitted that the additional income of Rs.10 cores surrendered by him included an income of Rs.6.29 crores being the amount paid by M/s Samiah International Builders Pvt. Ltd. for the purchase of the shares during the financial year 2005-06 - Held that:- Both the CIT (A) and also the Tribunal have founded their conclusion essentially on the premise that the respondent-assessee had requested for an opportunity of cross-examining Jamil A. Khan and that such an opportunity had not been provided by the assessing officer. However, from the record no finding that there was any such request made by the respondent-assessee for cross-examining Jamil A. Khan. In fact, found rather intriguing as to why would the respondent-assessee request for cross-examining Jamil A. Khan when the respondent-assessee himself had furnished affidavits to Jamil A. Khan in support of his case. The observations of the CIT (Appeals) as also of the Tribunal that despite the request of the respondent-assessee, the assessing officer had not provided opportunity of cross-examining Jamil A. Khan, are contrary to the record. The Tribunal had completely overlooked the fact that Jamil A.Khan had filed a revised return after he had made a surrender of Rs.10 crore during the survey operation. In that return an amount of Rs.6.29 crores has been shown as the cash component of the purchase of shares of R.S. Builtwell Pvt. Ltd. from the assessee and his relatives. That aspect of the matter has been ignored by the Tribunal. Consequently, having answered the question in favour of the revenue,the impugned order and remit the matter to the Tribunal for considering the same afresh on all grounds - against assessee.
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