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08-01-2019, VIKAS SAINI, Section 68, 10(38), 234B, Tribunal Delhi

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2 months 1 week ago #8302 by amit
Section - 68, 10(38), 234B
Order Date - 08-01-2019
Favouring - Allowed for statistical purposes.
Court - Tribunal Delhi
Appellant - VIKAS SAINI
Respondent - ITO
Justice - H.S. SIDHU JM
Citation - 119Taxpundit99
Appeal No. - ITA No. 3332/Del/2018
Asstt. Year - 2015-16

Order

PER : H.S. SIDHU

The aforesaid assessees have filed the appeals against the respective orders passed by Ld. CIT(A) confirming the orders of Assessing Officer wherein following additions were made against sale of shares in the scrip of M/s Effingo Textile & Trading Ltd, treated as unexplained cash credit u/s 68 of the Income Tax Act, 1961 (in short “Act”). This was claimed as exempt by assessees u/s 10(38) of the Income Tax Act, 1961.

2. Since facts involved in these appeals are same and identical, hence, the appeals were heard together and for the sake of convenience, all these appeals are being consolidated and disposed of by this common order. For sake of reference and facility, the facts in case of Sh. Vikas Saini vs. ITO, Ward 4(5), Gurgaon (AY 2015-16) are taken up and only Grounds of appeal raised by assessee in this case are reproduced hereunder for the sake of convenience, being identical and similar, except the difference in the figures.

1. That having regard to the facts and circumstances of the acse, Ld. CIT(A) has erred in law and onf acts in confirming the action of the AO in making addition of Rs. 25,02,610/- u/s. 68 and has further erred in not allowing the exemption u/s. 10(38) as claimed by the assessee and that too by recording incorrect facts and findings and without granting opportunity of cross examination as per law and without providing the entire adverse material on records and without observing the principles of natural justice.

2. That in any case and in any view of the matter, action of the Ld. CIT(A) in confirming the action of the AO in making addition of Rs. 25,02,610/- u/s. 68 and not allowing the benefit of exemption u/s. 10(38), is bad in law and against the facts and circumstances of the case.

3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of AO in charging interest u/s. 234B of the Income Tax Act, 1961.

4. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.

3. At the time of hearing, Ld. Counsel for the assessee has stated that the issue in all the appeals are almost identical, but he is arguing only one appeal i.e. ITA No. 3332/Del/2018 (AY 2015-16) – Vikas Saini vs. ITO and drew my attention towards Ground No. 1 raised by the assessee in the appeal as well as the ground raised by the assessee before the Ld. CIT(A), which the Ld. CIT(A) has reproduced in his impugned order. Also during the hearing, he further draw my attention towards ground no. 1 in all the appeals and stated that the said issue is in legal nature, hence, he wants to argue the same first and if the assessee succeeds in this ground, then the addition in dispute may be deleted and assessment may be cancelled. He further stated that if the Bench is not agreed with the assessee’s contention on the issue involved in ground no. 1, then on merits, the appeal of the asses ee may be re-fixed for hearing. He further submitted that the addition in dispute in all the appeals have been made by the AO and confirmed by the Ld. CIT(A) u/s. 68 of the I.T. Act on the basis of the statement of the entry provider Sh. Anil Kumar Khemka and Nikhil Jain referred in the impugned order, but the same has not been provided to the assessee as well as the opportunity of cross examination has also not been provided to the assessee despite the request made by the assessee to the AO. He further requested that nonproviding of opportunity to cross examine the above said entry providers, it is against the principle of natural justice and against the settled law. He also draw my attention towards one Paper Book filed by the assessee containing pages 1 to 67 especially the Page No. 21-29 in which he has

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