Income Tax Appellate Tribunal - Jaipur
Shambhu Dayal Sarraf, Jaipur vs Ito, Jaipur on 10 April, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM
MA No. 97/JP/2016
(Arising out of ITA No. 558/JP/2013
fu/kZkj.k o"kZ@Assessment Year : 2003-04
Shri Shambhu Dayal Sarraf cuke The ITO,
C/o S.D. Sarraf & Co. Vs. Ward- 7(1),
st
1 Floor Shop No. 216-217, Jaipur.
Kishanpole Bazaar, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFPPS 1708 F
vihykFkhZ@Appellant izR;FkhZ@Respondent
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s Assessee by : Shri Manish Agarwal (C.A.
jktLo dh vksj ls@ Revenue by : Smt. Seema Meena (JCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 06/04/2018
mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10/04/2018
vkns'k@ ORDER
PER: VIJAY PAL RAO, J.M. By way of this miscellaneous application the assessee is seeking recalling of the order dated 11.02.2016 of this Tribunal on the ground that there is a mistake apparent on record to the extent of not considering the correct facts on the issue of validity of reopening of the assessment.
MA No. 97/JP/2016
Shri Shambhu Dayal Sarraf vs. ITO
2. The ld. AR of the assessee has submitted that the assessee filed his return of income on 30.06.2003 wherein the transaction of sale of shares and consequential long term capital gain has been duly disclosed which is the subject matter of reopening of the assessment. He has further submitted that the Assessing Officer has stated in the reasons recorded for the reopening of the assessment that the assessee has not shown a sum of Rs. 5,60,845/- in respect of the transactions with MKM Finance Securities in the return of income and therefore, the AO stated to have reason to believe that the income of Rs. 5,60,845/-has escaped assessment. The ld. AR has further submitted that the assessee raised objection against the notice issued u/s 148 of the Act and pointed out that the assessee has duly disclosed this amount being sale transaction of shares and the consequential long term capital gain. However, the AO while disposing of the objections vide order dated 26.11. 2010 again committed mistake for not considering the true facts. He has further submitted that the Tribunal while passing the impugned order has also not considered this fact of disclosing the said amount in the return of income but the issue has been decided on the basis that the AO has duly disposed off the objections of the assessee. Hence, the ld. AR has submitted that the mistake in the impugned order goes to the root of 2 MA No. 97/JP/2016 Shri Shambhu Dayal Sarraf vs. ITO the matter on the issue of validity of reopening therefore, the impugned order may be recalled for hearing and adjudication of the same afresh.
3. On the other hand, ld. DR has vehemently opposed to the miscellaneous application filed by the assessee and submitted that the Tribunal has decided the issue on merits after considering the relevant record as well as the contention of the assessee and therefore the decision given on merits cannot be reviewed in the proceedings u/s 254(2) of the Act.
4. We have considered the rival submissions as well as relevant material on record. There is no dispute that the assessee filed his return of income for the year under consideration on 30.06.2003. The AO reopen the assessment by recording the reasons as under:-
" it has come to the notice of the undersigned that the assessee Sh. Shambhu Dayal Saraf S/o Sh. Madan Lal Saraf C/o M/s Saraf & Co. C.A. 1st Floor Shop No. 216-217 Kishanpole Bazar, Jaipur has made transactions worth Rs. 5,60,845/- with MKM finsec.through two DD of Rs. 2,50,000/-, dated 12.09.2002 and Rs. 3,10,845/- dated 18.09.2002. In the return for the A.Y. 2003- 04 the said sum has not been shown. I have, therefore, reason to believe that income of Rs. 5,60,845/- has escaped assessment."
Thus, the assessment was reopened when the AO came to know that the assessee have transaction with MKM Finance Securities and 3 MA No. 97/JP/2016 Shri Shambhu Dayal Sarraf vs. ITO received a total sum of Rs. 5,60,845/- through two DDs of Rs. 2,50,000/-dated 12.092002 and Rs. 3,10,845/- dated 18.09.2002. The assessee raised the objections against the reopening of the assessment and submitted that the alleged income of Rs. 5,60,845/- was duly disclosed in the return of income as part of the long term capital gain arising from sale of shares and therefore, the AO having no reasons to believe that the income assessable to tax has escaped assessment. We find that this is purely a factual aspect pertains to the discloser of the income by the assessee in the return of income which was considered by the AO as not disclosed by the assessee while recording the reasons for reopening of the assessment. Therefore, this issue is more a factual in nature then, the legal as to whether the Assessing Officer has considered the correct facts while forming the belief that the income of Rs. 5,60,845/- has escaped assessment for the reasons that the assessee has not disclosed the same in the return of income.
5. On the contrary, the assessee has contended that the said amount has been duly disclosed in the return of income as part of the long term capital gain on sale of shares. We note that though the Tribunal while passing the impugned order has rejected the contention of the assessee against the validity of reopening however, this 4 MA No. 97/JP/2016 Shri Shambhu Dayal Sarraf vs. ITO particular fact whether the assessee has disclosed this amount in the return of income or not has escaped consideration by the Tribunal while deciding the issue. Hence, we are of the considered view that there is a mistake apparent on record in the impugned order and consequently we recall the impugned order of the Tribunal for fresh hearing and adjudication of the matter. The registry is directed to fix the appeal of the assessee for fresh hearing and adjudication in regular course. The parties to be informed about the next date of hearing.
In the result, the miscellaneous application is allowed. Order pronounced in the open court on 10/04/2018 Sd/- Sd/-
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(Vikram Singh Yadav) (Vijay Pal Rao)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 10/04/2018.
*Santosh.
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Shambhu Dayal Sarraf, Jaipur.
2. izR;FkhZ@ The Respondent- ITO, Ward-7(1),Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur.
6. xkMZ QkbZy@ Guard File {M.A. No. 97/JP/2016} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar 5