RAMCHANDRA S. KHAIRNAR, MUMBAI V. ACIT CIR 3, KALYAN

CO 71/MUM/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 6883 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 23-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 23-01-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARTHASARTHY NAIK
• Assessee Lawyers: GOVIND APTE
• Keywords: Business income; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE SHRI D.K.AGARWAL (JM) AND SHRI T.R.SOOD(AM) ITA NO.4577/MUM/2010 (ASSESSMENT YEAR:2005-06) ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-3, KALYAN. SHRI RAMCHANDRA S. KHAIRNAR, 31, KRISHNA SARASWATI APARTS, BABASAHEB JOSHI MARG, DOMBIVILI (E), PAN:ABIPK4991P APPELLANT V/S RESPONDENT CROSS-OBJECTION NO.71/MUM/2011 IN ITA NO.4577/MUM/2010 (ASSESSMENT YEAR:2005-06) SHRI RAMCHANDRA S. KHAIRNAR, 31, KRISHNA SARASWATI APARTS, BABASAHEB JOSHI MARG, DOMBIVILI (E), PAN:ABIPK4991P ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-3, KALYAN. APPELLANT V/S RESPONDENT DATE OF HEARING : 23.1.2012 DATE OF PRONOUNCEMENT : 23.1.2012 REVENUE BY :SHRI PARTHASARTHY N AIK ASSESSEE BY :SHRI GOVIND APTE O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 29.1.2010 PASSED BY THE ITA NO.4577/MUM/2010 CROSS-OBJECTION NO.71/MUM/2011 (ASSESSMENT YEAR:2005-06) 2 LD.CIT(A) FOR THE ASSESSMENT YEAR 2005-06 AGAINST WHICH THE ASSESSEE HAS ALSO FILED CROSS-OBJECTION. THE REVENUES APPEAL AND ASSESSEES CROSS-OBJECTION AR E DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.4577/MUM/2010 (BY REVENUE) 2. THE GROUNDS TAKEN BY THE REVENUE READ AS UNDER: 1. THE LD.CIT(A) ERRED IN FACT AND IN LAW IN ALLOWING THE ASSESSEES CLAIM OF SHORT TERM CAPITAL GAIN ON SHARE TRANSACTIONS INSTEAD OF TREATING IT AS BUSINESS INCOME. 2. THE LD.CIT(A) ERRED IN FACT AND IN LAW IN APPLYING THE RATIO IN THE CASE OF GOPAL PUROHIT V/S JCIT (ITAT G BENCH, MUMBAI) WHEN THE FACTS ARE DISTINGUISHABLE 3. AT THE TIME OF HEARING, IT WAS OBSERVED THAT THE TAX EFFECT IN THE APPEAL FILED BY THE REVENUE IS LESS THAN THE MONETARY LIMIT OF RS.3,00,000/- FIXED BY THE CBDT. THE LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT DISPUTE ON THE SAID FACTUAL MATRIX OF THE C ASE. 4 THAT BEING SO AND IN VIEW OF THE RECENT CBDT INSTRUCTION NO. 3 OF 2011 DATED 9 TH FEBRUARY, 2011 REPORTED IN (2011) 332 ITR 1 (STATUTES) AND THE RAT IO ITA NO.4577/MUM/2010 CROSS-OBJECTION NO.71/MUM/2011 (ASSESSMENT YEAR:2005-06) 3 OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S MADHUKAR K. INAMDAR (HUF) (2009) 318 ITR 148(BOM), WHEREIN IT HAS BEEN HELD THAT THE REVISED MONETARY LIMIT IN THE CIRCULAR DAT ED MAY 15, 2008 WOULD BE APPLICABLE FOR ALL PENDING APPEALS AND ALSO THE CONSISTENT VIEW OF THE CO- ORDINATE BENCHES OF THE TRIBUNAL, WE ARE OF THE VIE W THAT THE DEPARTMENT SHOULD NOT HAVE FILED THE APPEA L AND ACCORDINGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. CO.NO.71/MUM/2011 (BY ASSESSEE) 5. GROUNDS TAKEN BY THE ASSESSEE READ AS UNDER : 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, KALYAN HAS ERRED IN PREFERRING AN APPEAL AGAINST THE ORDER OF THE LD. CIT APPEALS, THANE DISREGARDING HIS VERDICT ON CONFIRMING THE STAND OF THE RESPONDENT OF TREATING THE SHARE TRANSACTIONS AS SHORT TERM CAPITAL GAINS. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, KALYAN HAS ERRED IN RECOGNIZING THE FACT THAT THE FACTS OF THE CASE OF THE RESPONDENT WERE SIMILAR TO THAT OF GOPAL PUROHIT V/S JCIT AND TH E LEARNED COMMISSIONER OF APPEALS WAS VERY MUCH JUSTIFIED IN APPLYING THE RATIO OF ITAT G BENCH, MUMBAI 20 DTR 99 (2009) & ALSO THAT OF MUMBAI HIGH COURT 228 CTR 582 BOM (2010) IN THE CASE OF GOPAL PUROHIT V/S JCIT. ITA NO.4577/MUM/2010 CROSS-OBJECTION NO.71/MUM/2011 (ASSESSMENT YEAR:2005-06) 4 6. SINCE THE GROUNDS TAKEN BY THE ASSESSEE ARE IN SUPPORT OF THE ORDER OF THE LD. CIT(A) WHICH DO NOT REQUIRE ANY FRESH ADJUDICATION AND KEEPING IN VIEW OF OUR FINDING RECORDED IN THE REVENUES APPEAL, THE CROSS-OBJECTION FILED BY THE ASSESSEE ARE, THEREFOR E, REJECTED. 7. IN THE RESULT, THE REVENUES APPEAL AND ASSESSEE S CROSS-OBJECTION ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD JAN.,201 2. SD SD (T.R.SOOD) (D.K.AGARW AL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, 23RD JANUARY, 2012 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI