Twenty First Century Management Services Limited, CHENNAI V. ACIT, CHENNAI

CO 81/CHNY/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0948 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 19-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 30-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R VISWANATHAN
• Assessee Lawyers: A V SREEKANTH IRS
• Keywords: Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . ! , ' #$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER SHRI V. DURGA RAO, JUDICIAL MEMBER ./ I.T.A. NO.381/MDS/2013 & C.O.NO.81/MDS/2013 (IN ITA NO.381/MDS/2013) ( / ASSESSMENT YEAR : 2007-2008) THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE III(2), CHENNAI 600 034. ( %& /APPELLANT) VS M/S. TWENTY FIRST CENTURY MANAGEMENT SERVICES LTD, G3, NO.67, ELDAMS ROAD, CHENNAI 600 018. [PAN: AAACT 2397L] ( '(%& /RESPONDENT/CROSS OBJECTOR) / APPELLANT BY : SHRI. A.V. SREEKANTH, IRS, JCIT. / RESPONDENT BY : SHRI. R. VISWANATHAN, C.A. /DATE OF HEARING : 19.05.2015 /DATE OF PRONOUNCEMENT : 19.06.2015 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THE APPEAL BY REVENUE AND CROSS OBJECT ION BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOM E TAX (APPEALS), TRICHY, DATED 07.12.2012 FOR THE ASSESSMENT YEAR 20 07-2008. I.T.A.NO.381/MDS/2013 & C.O.NO. 81/MDS/2013. :- 2 -: 2. THE ISSUE INVOLVED IN THIS APPEAL IS WITH REGARD TO TREATING THE GAINS ARISING FROM SALE OF SHARES AS SHORT TERM CAP ITAL GAINS HEAD THOUGH THE ASSESSING OFFICER ASSESSED THE SAME AS B USINESS INCOME. 3. THE ASSESSEE HAS PURCHASED 14,000 SHARES OF M/S. AN ENT RAJ INDUSTRIES AND 1,44,431 SHARES OF M/S. KLG SYSTEMS AND SALE ON SAME, THE ASSESSEE OFFERED THE GAINS AS SHORT TERM CAPITAL GAINS IN ITS RETURN OF INCOME. IT IS NOTED BY THE ASSESSING OFFICER THAT ASSESSEE HAD SOLD 74,000 SHARES OF M/S. ANANT RAJ I NDUSTRIES AND 3,75,980 SHARES OF M/S. KLG SYSTEMS. THE ASSESSEE PLEADED BEFORE THE ASSESSING OFFICER THAT IT WAS HELD ORIGINALLY H AD STOCK IN TRADE OF 60,000 SHARES OF M/S. ANANT RAJ INDUSTRIES AND 2,3 1,549 SHARES OF M/S.KLG SYSTEMS AND CONVERTED THE STOCK IN TRADE AS INVESTMENT. THE ASSESSING OFFICER NOT AGREEING WITH THE CONTENT ION OF THE ASSESSEE TREAT THE GAIN IN SHARE OF SALE AS SHORT TERM CAPITAL GAINS. AGGRIEVED, THE ASSESSEE WENT ON APPEAL BEFORE THE C OMMISSIONER OF INCOME TAX (APPEALS). 3.1 ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS ) AGREED WITH THE CONTENTION OF THE ASSESSEE BY PLACING RELI ANCE ON THE JUDGMENT OF HIGH COURT OF DELHI IN THE CASE OF V. JUBILANT SECURITIES (P) LTD VS. CIT REPORTED IN (2011) 11 TAXMAN.COM 88 AND OTHER PRECEDENTS. AGAINST THIS, THE REVENUE IS IN APPEA L BEFORE US. I.T.A.NO.381/MDS/2013 & C.O.NO. 81/MDS/2013. :- 3 -: 4. AT THE TIME OF HEARING, THE DEPARTMENTAL REPRESENTA TIVE SUBMITTED THAT THE ASSESSEE FILED THIS APPEAL BEFO RE THE COMMISSIONER OF INCOME TAX (APPEALS) ON 11.05.2011, WHEREAS THE ORDER U/S.143(3) WAS SERVED TO THE ASSESSEE ON 04.0 1.2010, HENCE THE APPEAL SHOULD HAVE BEEN FILED IN FEBRUARY, 2010 BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). IN THE ABSEN CE OF ANY MENTION OF CONDONATION OF DELAY IN FILING OF APPEAL , THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE DISMISSED TH E APPEAL IN LIMINE AS BELATED. 5. THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE SUBM ITTED THAT THE ASSESSEE HAD FILED CONDONATION PETITION BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). IF IT WAS NOT DISCUSSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE CANNOT BE FOU ND FAULT WITH IN THIS PRIMARY ISSUE. 6. ADMITTEDLY, THERE WAS A DELAY IN FILING OF APPEAL B EFORE THE COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THE RE IS NO DISCUSSION WHATSOEVER BY THE COMMISSIONER OF INCOME TAX (APPEALS) REGARDING DELAY IN FILING OF APPEAL BEFORE HIM. T HE COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT CONDONING THE DELAY, A DJUDICATED THE APPEAL ON MERIT WHICH IS NOT APPROPRIATE. HENCE IN THE INTEREST OF I.T.A.NO.381/MDS/2013 & C.O.NO. 81/MDS/2013. :- 4 -: JUSTICE, WE ARE OF THE OPINION THAT IT IS APPROPRI ATE TO REMIT THE CASE TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APP EALS) TO GIVE HIS FINDINGS WITH REFERENCE TO DELAY IN FILING THE APPE AL BEFORE HIM AND THEREAFTER, HE SHALL PROCEED TO DECIDE THE ISSUE O N MERITS. 7. AT THIS STAGE, WE REFRAIN FROM GOING INTO OTHER GRO UNDS RAISED BY THE REVENUE IN THIS APPEAL, SINCE WE ARE REMITTI NG THE ISSUE WITH REGARD TO DELAY OF FILING OF APPEAL BEFORE THE COMM ISSIONER OF INCOME TAX (APPEALS) FOR HIS CONSIDERATION. THE CROSS OBJE CTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND ACCORDINGLY DIS MISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED AND THE CROSS OBJECTION BY ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 19TH DAY OF JUNE, 2 015, AT CHENNAI. SD/- SD/- ( . ! ) V. DURGA RAO ' / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER !' /CHENNAI. #$ /DATED:19.06.2015. KV $% &' (' /COPY TO: 1. ) APPELLANT 2. / RESPONDENT 3. * ( )/CIT(A) 4. * /CIT 5. '+, - /DR 6. ,. / /GF. I.T.A.NO.381/MDS/2013 & C.O.NO. 81/MDS/2013. :- 5 -: