ACIT, Circle - 3, Kolkata, Kolkata V. M/s. Jayshree Nirman Ltd., Kolkata

ITA 1013/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54699 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 15-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: SUBASH AGARWAL
• Keywords: Business income

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ . . . . , ,, , . . ! !! ! . , ] [BEFORE SHRI N. VIJAYA KUMARAN, J. M. & SHRI C. D. RAO, A.M.] $ $ $ $ / I.T.A NO.1013/KOL/2011 / // / ASSESSMENT YEAR : 2006-07 ASSTT. COMMISSIONER OF INCOME TAX -VS.- M/S. JAYSHREE NIRMAN LIMITED CIRCLE-3, KOLKATA. KOLKATA [PAN : AABCJ 3200 H] [ + + + + /APPELLANT ] ]] ] [ -.+ -.+ -.+ -.+/ // / RESPONDENT ] ]] ] + + + + / FOR THE APPELLANT : SHRI S. K. ROY -.+ -.+ -.+ -.+ / FOR THE RESPONDENT : SHRI SUBASH AGARWAL 0 ! 0 ! 0 ! 0 ! /DATE OF HEARING : 17. 11. 2011 0 ! 0 ! 0 ! 0 ! /DATE OF PRONOUNCEMENT : 25.11.2011 [ /ORDER . . . . , PER N. VIJAYA KUMARAN, J. M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I, KOLKATA DATED 11.04.2011 FOR ASSESSMENT YEAR 2006-07. 2. THE GROUND URGED BY THE DEPARTMENT IS AS UNDER : - THAT IN THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN TREATING THE BUSINESS INCOME OF RS.16,35,693/- A S CAPITAL GAIN WITHOUT GOING THROUGH THE MERIT OF THE CASE, BUT FULLY DEPENDING ON THE SUBMISSION OF THE ASSESSEE-CO. 3. THE ONLY ISSUE IS WHETHER THE INCOME RECEIVED TO BE CHARGED UNDER THE HEAD CAPITAL GAIN OR AS BUSINESS INCOME. ASSESSING OFFICER ADDED IT UNDE R BUSINESS INCOME, WHICH WAS CONTESTED AS SHOWN AS CAPITAL GAIN BY THE ASSESSEE. [ ITA NO.1013/KOL/2011 2 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENTS. THERE IS NO DISPUTE ON FA CTS. IT IS ONLY DISPUTE IN APPLICATION OF HEAD OF INCOME, UNDER GIVEN SET OF CIRCUMSTANCE. 5. LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE OR DER OF THE ASSESSING OFFICER AS WELL AS THE GROUNDS URGED BEFORE US. 6. LD. COUNSEL FOR THE ASSESSEE IN REPLY RELIED ON THE FOLLOWING DECISIONS :- I) VESTSA INVESTMENTS & TRADING CO. (P) LTD. VS. CIT 7 0 ITD 2000 (CHD) II) RAMNARAIN SONS (P) LTD. VS. CIT 41 ITR 534 (SC) III) ACIT VS. KETHAN KUMAR A. SHAH 242 ITR 83 (KER.) IV) MOTILAL OSWAL VS. ADDL.CIT 8 SOT 771 (BOM.) V) CIT VS. N.S.S. INVESTMENTS (P) LTD. 277 ITR 149 (MA D.) VI) JANAK S. RANGWALLA VS. ACIT [2007] 11 SOT 627 (MUM. ) LD. COUNSEL ALSO RELIED ON THE RECENT DECISION OF H ONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GOPAL PUROHIT [2010] 228 CTR 582 (BOM.). THE DE CISION OF HONBLE BOMBAY HIGH COURT HAS BEEN CONFIRMED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. GOPAL PUROHIT AS REPORTED IN ITAT ON LINE ORG. JUNE, 21, 2011. HONBLE SUPREME C OURT DISMISSED THE DEPARTMENTS SPECIAL WRIT PETITION AGAINST THE JUDGMENT OF THE HONBLE B OMBAY HIGH COURT CITED BY THE ASSESSING OFFICER IN THE CASE OF GOPAL PUROHIT (SUPRA) AND HE LD AS UNDER :- A) IT WAS OPEN TO AN ASSESSEE TO MAINTAIN TWO SEPARA TE PORTFOLIOS, ONE RELATING TO INVESTMENT IN SHARES AND ANOTHER RELATING TO BUSINE SS ACTIVITIES INVOLVING DEALING IN SHARES. B) WE ARE FINDING A FACT AND HAS BEEN ARRIVED AT BY TH E TRIBUNAL AS REGARDS THE EXISTENCE OF TWO DISTINCT TYPES OF TRANSACTIONS VIZ. THOSE B Y WAY OF INVESTMENT AND THOSE FOR THE PURPOSE OF BUSINESS. C) THAT, THERE SHOULD BE UNIFORMITY IN TREATMENT AND C ONSISTENCY WHEN THE FACTS AND CIRCUMSTANCES OF THE CASE ARE IDENTICAL, PARTICULAR LY IN THE CASE OF THE ASSESSEE. D) THAT ENTRIES AND BOOKS OF ACCOUNTS ALLOWED ARE NOT CONCLUSIVE AND DETERMINING NATURE OF INCOME THOUGH THEY HAVE A BEARING. APPLYING THE ABOVE RATIO, THE ORDER OF LD. CIT(A) H AS TO BE CONFIRMED AND FURTHER IN THE ASSESSEES OWN CASE, THE I.T.A.T., C BENCH, KOLKA TA VIDE ITS ORDER DATED 30.11.2009 IN ITA NO. [ ITA NO.1013/KOL/2011 3 1695/KOL/2009 RELATING TO THE ASSESSMENT YEAR 2005- 06, DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT. RESPECTFULLY, FOLLOWING THE ABOVE DECISIONS, WE ARE OF THE VIEW THAT THE ORDER OF LD. CIT(A) REQUIRES NO INTERFERENCE. 7. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMI SSED. 3 3 3 3 ! ! ! ! ORDER PRONOUNCED IN THE COURT ON 25..11.2011. SD/- SD/- [ . . ! !! ! . , ] [ . . . . , ,, , ] [ C. D. RAO ] [ N. VIJAYAKUMARAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER D ATED : 25TH NOVEMBER, 2011. 0 - 7/ COPY OF THE ORDER FORWARDED TO: 1. + /APPELLANT : ASSTT. COMMISSIONER OF INCOME TAX, CI RCLE-3, 8/2, ESPLANADE EAST, DWARLI HOU SE, 2 ND FLOOR, KOLKATA-700 069. 2 . -.+ / RESPONDENT : M/S. JAYSHREE NIRMAN LIMITED, 1, BR ITISH INDIA STREET, 5 TH FLOOR, ROOM NO. 503, KOLKATA-700 069. 3. - / CIT, 4. ()/ CIT(A), KOLKATA. 5. -/ DR, KOLKATA BENCHES, KOLKATA [. -/ TRUE COPY] / BY ORDER, /ASSTT REGISTRAR [KKC AB C /SR.PS]