2018 (12) TMI 1652 - AT - Income Tax

Tribunal remits tax appeal, orders re-examination by Assessing Officer. Key details withheld from assessee.

Shri Aravind Nandlal Khatri Versus The Income Tax Officer, Non Corporate Ward - 4 (1), Chennai

The Tribunal allowed the appeal for statistical purposes and remitted the matter back to the Assessing Officer for re-examination. The Tribunal ... Reopening of assessment u/s 147 - exemption u/s 10(38) denied - investment in a penny stock company - as per AO capital gain arose during the year under consideration on the sale of shares, therefore, AO has rightly reopened the assessment for the year under consideration - HELD THAT:- From the material available on record it appears that a copy of information said to be received from the Investigation Wing of the Department at Kolkata was not furnished to the assessee. It is not brought on record the relationship of the assessee with the promoters of M/s Concrete Credit Limited. It is also not brought on record the role of the assessee in promoting the company, namely, M/s Concrete Credit Limited, issue of public shares, inflation of price of shares, etc. In those circumstances, this Tribunal is of the considered opinion that the matter needs to be re-examined by the AO. Accordingly, the orders of both the authorities below are set aside and the entire issue is remitted back to the file of the AO. AO shall bring on record the role of the assessee in promoting the company and relationship of the assessee with other promoters, role of the assessee in inflating the price of shares, etc. AO shall also furnish a copy of the report said to be received from the Investigation Wing of the Department at Kolkata to the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee. - Appeal of assessee for statistical purposes. Issues:Reopening of assessment under Section 147 for disallowance of exemption under Section 10(38) for profit on sale of shares claimed as short term capital gain.Analysis:The appellant's appeal was against the Commissioner of Income Tax (Appeals)-5's order for the assessment year 2011-12. The appellant's counsel argued that the Assessing Officer disallowed the exemption claim under Section 10(38) after reopening the assessment, but the shares were sold during the year under consideration. The counsel contended that the profit on sale of shares should be treated as short term capital gain. The Departmental Representative mentioned that the Assessing Officer received information about the investment in a penny stock company and disallowed the exemption claim as the capital gain arose during the year under consideration. However, the Tribunal noted that crucial information from the Investigation Wing was not shared with the assessee, and the relationship of the assessee with the company's promoters was not established. The Tribunal set aside the lower authorities' orders and remitted the issue back to the Assessing Officer for re-examination. The Assessing Officer was directed to investigate the role of the assessee in promoting the company, relationship with other promoters, and the inflation of share prices. The Assessing Officer was instructed to provide the Investigation Wing's report to the assessee and decide the matter afresh after granting a reasonable opportunity for the assessee to present their case.In conclusion, the appeal was allowed for statistical purposes, and the matter was remitted back to the Assessing Officer for a detailed re-examination considering the undisclosed crucial information and the assessee's involvement with the company and share price manipulation.