Order passed without considering documents and examining residential status needs to be restore back

Ajay Jain Vs ACIT (ITAT Mumbai)

ITAT Mumbai held that order passed without considering the documents and without examining the correct residential status of the assessee is liable to be restore back for de novo adjudication.

Facts- In appeal before the learned CIT(A), the assessee raised grounds challenging the assessment by treating the assessee as ‘Resident’ as against the return of income filed in the status of ‘Non-Resident’. The assessee also challenged the computation of long-term capital gains by treating the cost of acquisition of shares as Nil. In order to substantiate the cost of acquisition of shares at Rs.81,04,212, the assessee also furnished additional documents, which could not be filed during the assessment proceedings, along with an application under Rule 46A of the Income Tax Rules, 1962. However, the learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee on both issues. Being aggrieved, the assessee is in appeal before us.

Conclusion- From the perusal of the impugned order, it is evident that the learned CIT(A) neither sought any remand report from the AO nor considered any of the aforesaid documents while dismissing the assessee’s appeal in respect of the computation of long-term capital gains at Rs.1,78,60,000. Further, there is no examination of the correct residential status of the assessee by any of the lower authorities. Therefore, in view of the above and in the interest of justice, we deem it appropriate to restore both issues to the file of the AO for de novo adjudication after considering the details filed by the assessee pertaining to his residential status as well as the documents/information furnished before the learned CIT(A) as additional evidence. The assessee is also directed to fully cooperate and comply with all the notices and furnish all the details as sought by the AO without any default. As a result, the grounds raised by the assessee are allowed for statistical purposes.

FULL TEXT OF THE ORDER OF ITAT MUMBAI

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