Income Tax Appellate Tribunal - Kolkata
Soumitra Choudhury , Kolkata vs Acit, Circle - 22 , Kolkata on 15 February, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL "C", BENCH KOLKATA BEFORE SHRI ABY.T. VARKEY, JM &DR. A.L.SAINI, AM S.A. No.12/Kol/2019 आयकरअपीलसं./ITA No.256/Kol/2019 ( नधा रणवष / Assessment Years:2012-13) Soumitra Chowdhury Vs. ACIT, Circle-22(4), Kolkata 2nd Floor, 28C, Satish Mukherjee Road, Kalighat, Kolkata-700026 थायीले खासं . /जीआइआरसं . /PAN/GIR No.: ACNPC 4627 Q (Assessee) .. (Revenue) Assessee by :Shri M.D.Shah, AR Respondent by : Shri Sankar Halder, JCIT, Sr. DR सन ु वाईक तार ख/ Date of Hearing : 15/02/2019 घोषणाक तार ख/Date of Pronouncement : 15/02/2019 आदे श / O R D E R Per Dr. A. L. Saini:
This is a stay application moved by the assessee against the order of ld. Commissioner of Income Tax (Appeals)-6, Kolkata dated 08.02.2019 for assessment year 2012-13, praying for an order of stay of recovery of outstanding demand of Rs.37,84,787/-.
2.The outstanding demand arises out of the conclusions drawn by the assessing officer that transactions of sale of shares of 'Twenty First Century Pvt. Ltd' received during the assessment year 2012-13, were not genuine.The said sale proceeds was treated as unexplained cash credit under section 68 of the Act and AO made addition of Rs.70,25,200/-. As a result of the addition, a demand to the tune of Rs.43,57,330/- was raised by the AO including interest. Out of the total Soumitra Chowdhury SA No. 12/Kol/2019 (Arising out of I.T.A. No. 256/Kol/2019) Assessment Year:2012-13 demand the assessee paid Rs.5,73,542 and for balance demand of Rs.37,84,787/-, the assessee prays the Bench to stay on the Recovery.
3. The ld. Counsel for the assessee brought to our notice that the assessee is an advocate by profession and had earned Long term capital gain(LTCG),of Rs. 70,25,200/- on sale of shares of 'Twenty First Century Pvt. Ltd'. The Assessing Officer treated the said LTGC as bogus and made addition U/s 68 of the Act. On appeal, ld CIT(A) confirmed the addition made by assessing officer. The ld Counsel submitted before the Bench that shares of 'Twenty First Century India Pvt. Ltd.' has been found to be genuine by the Coordinate Bench of ITAT Mumbai in the case of Ashok Bhatt (HUF) in I.T.A.6909/Mum/2008, order dated 19.10.2011, therefore the assessee has made out the prima facie case to win the appeal and hence the stay on the balance amount may be granted.
4. On the other hand, the ld. DR vehemently opposes the stay and states that blanket stay should not be granted. The assessee has to deposit at least 25% of the demand.
5. We have heard both the parties.We note that out of the total demand, the assessee paid Rs.5,73,542/- and for balance demand of Rs.37,84,787/-, the assessee prays the Bench to stay on the Recovery. We note that ld. DR vehemently opposes the stay and states that the assessee has to pay at least 25% of the demand. The ld. Counsel fairly agrees before the Bench to remit up to 25% and therefore we are inclined to grant stay, as the assessee has made out the prima facie case,as we have noticed that the Coordinate Bench of ITAT Mumbai in the case of Ashok Bhatt (HUF) in I.T.A.6909/Mum/2008 dated 19.10.2011(supra) held that sale of shares of 'Twenty First Century India Pvt. Ltd' is not a bogus LTGC.
6. Keeping in mind the submissions made by the Counsel and also keeping in mind the existence of the prima facie case, the balance of convenience and relative hardship, we are of the view that there should be a stay of recovery of outstanding demand. There would be irreparable damage if the stay is not granted to the assessee therefore, we are inclined to grant stay of the remaining account provided the assessee pays Rs. 5,00,000/- within March 15, 2019. The stay will be granted Pa g e | 2 Soumitra Chowdhury SA No. 12/Kol/2019 (Arising out of I.T.A. No. 256/Kol/2019) Assessment Year:2012-13 for six months from today or the date of disposal of appeal, whichever is earlier. The appeal is accordingly directed to be fixed out of turn hearing on 13.03.2019, since the date of hearing is announced in the open court hence no separate notice of hearing will be sent to the parties. The assessee shall not seek any adjournment except for exceptional cause.
7. In the result, the Stay Application is thus allowed to the extent indicated above.
Order is pronounced in the open court on 15 .02.2019.
Sd/- Sd/-
(A.T. VARKEY) (A.L.SAINI)
या यकसद य / JUDICIAL MEMBER लेखासद य / ACCOUNTANT MEMBER
कोलकाता /Kolkata;
दनांक/ Date: 15/02/2019
(SB, Sr.PS)
Copy of the order forwarded to:
1. Soumitra Chowdhury
2. ACIT, Circle-22, Kolkata
3. C.I.T(A)- 4. C.I.T.- Kolkata.
5. CIT(DR), Kolkata Benches, Kolkata.
6. Guard File.
True copy
By Order
Assistant Registrar
ITAT, Kolkata Benches
Pa g e | 3
Soumitra Chowdhury
SA No. 12/Kol/2019
(Arising out of I.T.A. No. 256/Kol/2019) Assessment Year:2012-13 Pa g e | 4