Sh. Surjit Singh, Jalandhar V. The DCIT, Jalandhar

ITA 103/ASR/2012

• Counselvise Citation: 10320914 RSA 2012
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-08-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: Y K SUD
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.103(ASR)/2012 ASSESSMENT YEAR:2006-07 PAN :AJTPS8525Q SH. SURJIT SINGH VS. DY. COMMR. OF INCOME TAX, M/S. SONA JEWELLERS, RANGE-III, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.Y.K. SUD, CA RESPONDENT BY:SH. TARSEM LAL, DR DATE OF HEARING:16/10/2012 DATE OF PRONOUNCEMENT:16/10/2012 ORDER PER BENCH ; THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O THE CIT(A), JALANDHAR, 16.01.2012 FOR THE ASSESSMENT YEAR 2006- 07. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1. THAT THE CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE A.O. IN TREATING THE LONG TERM CAPITAL GAIN FROM SA LE OF SHOPS AS BUSINESS INCOME AGAINST THE CAPITAL GAINS DECLAR ED BY THE ASSESSEE. ITA NO.103(ASR)/2012 2 2. THAT WHILE UPHOLDING THIS ACTION OF A.O. THE CIT (A) CLEARLY OVERLOOKED THE PAST HISTORY OF THE CASE WHEREIN THE SAID INCOME HAS BEEN DECLARED AND ACCEPTED AS LONG TERM CAPITAL GAIN BY THE REVENUE. 3. THAT THE CIT(A) WAS NOT JUSTIFIED IN INCLUDING T HE 50% SHARE OF WIFE OF THE ASSESSEE INTO THE INCOME OF THE ASSESSE E. HE CLEARLY OVERLOOKED THAT THE LAND WAS PURCHASED BY THE WIFE OF THE ASSESSEE IN HER OWN NAME BY MAKING HER OWN INVESTME NTS WHICH WAS ACCEPTED BY THE DEPARTMENT. 4. THAT ORDER OF THE CIT(A) & A.O. IS AGAINST LAW A ND FACTS OF THE CASE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE HAD DECLARED 50% INCOME FROM SALE OF SHOPS UNDER THE HEAD SHORT/LON G TERM CAPITAL GAINS AS HIS INCOME IN HIS RETURN OF INCOME. THE AO NOTED TH AT THIS INCOME WAS BEING TREATED AS INCOME FROM BUSINESS IN THE ASSESSEES H ANDS ALONE FULLY AS PER THE PAST HISTORY OF ASSESSMENT. HE ARRIVED AT THE P ROFIT ON THE SALE OF THE SHOPS AT RS.75,796/- BY DEDUCTING THE COST PRICE OF THE SHOPS FROM THE SALE CONSIDERATION OF RS.2.50 LACS AND ADDED IT TO THE A SSESSEES INCOME. 4. THE LD. CIT(A) FOLLOWING THE DECISION IN ASSESSE ES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 BY THE CIT(A), TREATED THE SALE OF SHOPS AS THE BUSINESS PROFIT OF THE ASSESSEE. 5. THE LD. COUNSEL FOR THE ASSESSEE, SH.Y.K.SUD, CA INVITED OUR ATTENTION TO THE ORDER OF THE ITAT, AMRITSAR BENCH, PASSED IN ITA NO.211(ASR)/2010, DATED 10.04.2012 FOR THE ASSESSM ENT YEAR 2005-06 IN ITA NO.103(ASR)/2012 3 ASSESSEES OWN CASE ON THE IDENTICAL FACTS, WHICH H AS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THEREFORE, HE PRAYED THE BENCH TO ALLOW THE APPEAL OF THE ASSESSEE, AS THE SAME IS A COVERED MATTER IN ASSESS EES OWN CASE, AS MENTIONED HEREINABOVE. 6. THE LD. DR, MR. TARSEM LAL, APPEARING ON BEHALF OF THE REVENUE CONCEDED THAT THE MATTER IS COVERED BY THE DECISION OF THE ITAT, AMRITSAR BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEA R 2005-06 (SUPRA). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE FACTS IN THE PRESENT CASE WITH RESPECT TO ALL T HE GROUNDS ARE IDENTICAL TO THE FACTS IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06, IN ITA NO.211(ASR)/2010, DATED 10.04.2012, WHICH HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ITAT, AMRITSAR BENCH. FOR THE S AKE OF CLARITY, WE REPRODUCE THE FINDINGS OF THE SAID ORDER IN PARA 8 & 9 AS UNDER: 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE ARE CONVINCED WITH THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE, MR. Y.K. SUD, CA, THAT TH E ASSESSEE HAD PURCHASED PROPERTIES LONG WAY BACK I.E. 6-7 YEARS B ACK WITH THE INTENTION TO MAKE THE INVESTMENT AND THE SHOPS HAV E BEEN CONSTRUCTED THEREAFTER FROM YEAR TO YEAR IS NOT UNDER DISPUTE. NOTHING HAS BEEN BROUGHT ON RECORD BY ANY OF THE AUTHORITIES BELOW T HAT THE ASSESSEE HAD AN INTENTION TO TRADE IN THE SAID PROPERTIES AN D, THEREFORE, THE INTENTION OF THE ASSESSEE TO KEEP THE PROPERTIES AS INVESTMENT CANNOT BE DOUBTED. AS REGARDS THE SHARE OF THE WIFE OF THE ASSESSEE, WHICH HAS BEEN DECLARED AT 50% FROM INCEPTION CANNOT BE D OUBTED IN THE ABSENCE OF ANY ADVERSE EVIDENCE ON RECORD. THEREFOR E, IN THE FACTS AND CIRCUMSTANCES AND IN VIEW OF THE DECISIONS RELI ED UPON BY THE LD. COUNSEL FOR THE ASSESSEE AND SETTLED POSITION OF LA W, THE INTENTION OF ITA NO.103(ASR)/2012 4 THE ASSESSEE IN THE PRESENT CASE IS HELD TO BE AS I NVESTMENT AND NOT AS BUSINESS INCOME. THEREFORE, THE AO IS NOT JUSTIFIED IN TREATING THE SAME AS BUSINESS ASSET AND ACCORDINGLY, HE IS DIREC TED TO ACCEPT THE CLAIM OF THE ASSESSEE. THEREFORE, THE ORDER OF THE LD. CIT(A) IS REVERSED AND ALL THE GROUNDS OF APPEAL OF THE ASSES SEE ARE ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.211(ASR)/2011 IS ALLOWED. 7.1. THEREFORE, FOLLOWING OUR OWN ORDER IN ASSESSE ES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 MENTIONED HEREINABOVE, WE A LLOW ALL THE GROUNDS OF APPEAL OF THE ASSESSEE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.211(ASR)/2010 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16TH OCTOBER, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16TH OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. SURJIT SINGH, JALANDHAR. 2. THE DCIT-R-III, JALANDHAR. 3. THE CIT(A), JLR. 4. THE CIT, JLR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.