ACIT, CHENNAI V. M/s. Star gate Investments Private Ltd., CHENNAI

ITA 1004/CHNY/2011

• Counselvise Citation: 100421714 RSA 2011
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR I V IJAYAKUMAR IRS
• Assessee Lawyers: DR ANITHA SUMANTH; G STANLY ADCOCATES
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER ITA NO.1004(MDS)/2011 ASSESSMENT YEAR: 2008-09 THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE VI(4), CHENNAI. VS. M/S. STARGATE INVESTMENTS PVT. LTD., 9-CATHEDRAL ROAD, CHENNAI-600 086. PAN AAACS9436K. (APPELLANT) (RESPONDENT) APPELLANT BY : DR. I.VIJAYAKUMAR, IRS, CIT-DR. RESPONDENT BY : DR.ANITHA SUMANTH & SHRI G.STANLY, ADCOCATES. DATE OF HEARING : 15 TH SEPTEMBER, 2011 DATE OF PRONOUNCEMENT : 15 TH SEPTEMBER, 2011. O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THIS APPEAL IS FILED BY THE REVENUE. THE RELEVAN T ASSESSMENT YEAR IS 2008-09. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-V AT CHENNAI DATED 4-3-2011. THE APPEAL ARISES OUT OF THE ASSES SMENT COMPLETED UNDER SECTION 143(3) OF THE INCOME-TAX AC T, 1961. - - ITA NO.1004 OF 2011 2 2. THE GROUND RAISED BY THE REVENUE IS THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS ERRED IN HO LDING THAT THE INCOME FROM THE SALE OF SHARES OF INDIA CEMENTS LTD. SHOULD BE CONSIDERED UNDER THE HEAD CAPITAL GAINS AND TH E ASSESSEE IS ENTITLED FOR RELIEF UNDER SECTION 10(38) OF THE INC OME-TAX ACT, 1961. 3. WE HEARD DR. I.VIJAYAKUMAR, THE LEARNED COMMISSIONER OF INCOME-TAX, APPEARING FOR THE REVEN UE AND DR. ANITHA SUMANTH ALONGWITH SHRI G.STANLY, LEARNED COU NSELS APPEARING FOR THE ASSESSEE. THE VERY SAME ISSUE OF SALE OF SHARES OF INDIA CEMENTS LTD., HELD BY THE ASSESSEE, WAS CONSIDERED BY THIS BENCH OF THE TRIBUNAL IN THEIR O RDER DATED 13-8-2010 IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07 IN THE DEPARTMENTAL APPEAL IN ITA NO.1400(M DS)/2009. AFTER EXAMINING THE FACTS OF THE CASE EXHAUSTIVELY, THE TRIBUNAL UPHELD THE FINDING OF THE COMMISSIONER OF INCOME-TA X(APPEALS) THAT THE SHARES WERE HELD BY THE ASSESSEE AS A LONG -TERM INVESTMENT AND THERE WAS NO BASIS IN TREATING SUCH INVESTMENT AS STOCK-IN-TRADE OF THE ASSESSEE COMPANY. THE TRI BUNAL FURTHER HELD THAT, OBVIOUSLY, IN SUCH CIRCUMSTANCES ANY GAI N ARISING OUT - - ITA NO.1004 OF 2011 3 OF THE TRANSFER OF SUCH LONG-TERM INVESTMENT WOULD BE IN THE NATURE OF LONG-TERM CAPITAL GAINS. ACCORDINGLY, TH E TRIBUNAL UPHELD THE ORDER OF THE COMMISSIONER OF INCOME-TAX( APPEALS), WHEREIN THE COMMISSIONER OF INCOME-TAX(APPEALS) HAD DIRECTED THE ASSESSING AUTHORITY TO TAX THE SURPLUS UNDER TH E HEAD CAPITAL GAINS. 4. THE PRESENT CASE ALSO ARISES OUT OF THE SAME SE T OF FACTS AND CIRCUMSTANCES. THE EARLIER DECISION OF T HE COORDINATE BENCH IS APPLICABLE TO THE PRESENT CASE. THE COMMI SSIONER OF INCOME-TAX(APPEALS) ALSO HAS FOLLOWED THE SAID ORDE R OF THE TRIBUNAL. 5. IN THE CIRCUMSTANCES WE FIND THAT THE APPEAL FI LED BY THE REVENUE IS LIABLE TO BE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THURSDAY, THE 15 TH OF SEPTEMBER, 2011 AT CHENNAI. SD/- SD/- (HARI OM MARATHA) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI DATED THE 15 TH SEPTEMBER, 2011. V.A.P. COPY TO: APPELLANT/RESPONDENT/CI T/CIT(A)/DR/GF