TARUN MAFATLAL SHAH, V. JCIT 15(1),

CO 77/MUM/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0579 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 07-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Business income; Retrospective amendment; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI VIJAY PAL RAO ( JM ) AND D. KARUNAKAR A RAO, (AM) , . , ./ I.T.A. NO 2168 / MUM/20 1 2 ( / ASSESSMENT YE A R : 20 0 8 - 09 ) JOINT COMMISSIONER OF INCOME TAX - 15(1), ROOM NO. 104, MATRU MANDIR,1 ST FLOOR, TARDEO ROAD, MUMBAI - 400007 / VS. SHRI TARUN MAFATLAL SHAH, PROP M/S KALYAN METAL SYNDICATE , 134/ 1 50, SHOP NO.1, KIKA STREET, GULALWADI, MUMBAI - 400 0 04 ( / APPELLANT ) .. ( / RESPONDENT ) CROSS - OBJECTION NO. 77 /MUM/201 3 ARISING OUT OF I.T.A. NO .2168 /MUM/201 2 ( / ASSESSMENT YEAR :2008 - 09) SHRI TARUN MAFATLAL S HAH, PROP M/S KALYAN METAL SYNDICATE, 134/150, SHOP NO.1, KIKA STREET, GULALWADI, MUMBAI - 400004 / VS. JOINT COMMISSIONER OF INCOME TAX - 15(1), ROOM NO.104, MATRU MANDIR,1 ST FLOOR, TARDEO ROAD, MUMBAI - 400007 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAIPS4102M / REVENUE BY SHRI NEIL PHILIP / ASSESSEE BY S HRI JITENDRA SINGH / DATE OF HEARING : 7 .5.2015 / DATE OF PRONOUNCEMENT : 20 .5. 2015 / O R D E R PER VIJAY PAL RAO ( JM ) THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2008 - 09 AGAINST ORDER OF LD. CIT(A) DATED 17.1.2012 ON FOLLOWING GROUNDS : 1. O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN HOLDING THAT THE DISALLOWANCE OF INTEREST CAN NOT BE SUSTAINED. 2168 /MUM/201 2 AND CO NO. 77 /M/201 3 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DIRECTING THE AO TO TREAT THE INCOME FROM SHARE TRADING OF RS.6,05,900/ - SHOWN AS INCOME UNDER THE HEAD LONG TERM CAPITAL GAIN AS SUCH WITHOUT APPRECIATING THE VOLUME OF TRANSACTIONS, TIME DEVOTED BY THE ASSESSEE, FREQUENCY OF TRANSACTIONS AND MOTIVE OF THE ASSESSEE. 2. THE ASSESSEE HAS ALSO FILED CROSS - OBJECTION AGAINST THE SAME ORDER ON FOLLOWING GROUNDS : 1. THE LD. CIT(A) ERRED IN PASSING THE ORDER DATED 17.1.2012 CONFIRMING THE ACTION OF THE AO IN TREATING THE SHORT TERM CAPITAL GAIN AMOUNTING TO RS.4 7,91,011/ - DECLARED BY THE A PP ELLANT AS BUSINESS INCOME WITHOUT APPRECIATING THE FA CTS AND CIRCUMSTANCES OF THE CA S E. 2. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT IS AN INVESTOR AND NOT TRADER IN SHARES. THEREFORE, TREATING THE SHORT T ERM CAPITA L GAIN AS BUSINESS INCOME IS WITHOUT ANY BASIS AND HENCE, TH E SAME BY BE DELETED 3. ADMITTEDLY IN THIS CASE THE TAX EFFECT ON THE DISPUTED ISSUE IS LESS THAN FOUR LAKHS. IN VIEW OF CBDT INSTRUCTION NO. 5/2014 (F.NO.279/MISC.142/2007 - ITJ(PT) DATED 10.7.2014, THE REVENUE CAN NOT FILE ANY APPEAL BEFORE THE TRIBUNAL, WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMIT OF RS. 4,00,000/ - UNLESS THE CASE FALLS IN THE EXCEPTIONS. T HE HONBLE BOMBAY HIGH COURT TIME AND AGAIN HELD THAT THE INSTRUC TIONS/CIRCULARS PRESCRIBING MONETARY LIMIT FOR FILING OF THE APPEAL WILL HAVE RETROSPECTIVE EFFECT AND WOULD BE APPLICABLE ON PENDING APPEAL ALSO. IN THE CASE OF CIT VS. SHRI MAHDHUKAR K. INAMDAR (HUF) THANE IN ITA NO. 1021 TO 1025 OF 2008, VIDE ORDER DATE D 02.10.2009, THE HONBLE HIGH COURT WHILE INTERPRETING THE CBDT CIRCULAR DATED 15.05.2008, HELD THAT SUCH CIRCULARS WILL BE APPLICABLE ON THE OLD APPEAL ALSO. THEIR LORDSHIPS HAVE ALSO REFERRED TO THE EARLIER DECISIONS OF THE HONBLE BOMBAY HIGH COUR T. IN VIEW OF THE AFORESAID BINDING PRECEDENCE OF THE HONBLE JURISDICTIONAL HIGH COURT, WE HOLD THAT THE APPEAL FILED BY THE REVENUE IN THE PRESENT CASE IS NOT MAINTAINABLE AS THE TAX EFFECT IS LESS THAN FOUR LAKHS. ACCORDINGLY THE APPEAL FILED BY THE REVENUE IS TREATED AS DISMISSED. SINCE, THE APPEAL FILED BY THE REVENUE IS 2168 /MUM/201 2 AND CO NO. 77 /M/201 3 3 DISMISSED AS NOT MAINTAINABLE, THE CROSS - OBJECTION FILED BY THE ASSESSEE ALSO STANDS DISMISSED AS INFRUCTUOUS. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED AND THE CROSS - OBJECTION FILED BY THE ASSESSEE ALSO STANDS DISMISSED AS INFRUCTUOUS. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 20TH MAY , 201 5 . 20TH MAY , 2015 SD SD ( . / D. KARUNAKAR A RAO) ( / VIJAY PAL RAO ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: 20TH MAY , 2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI