DCIT, CC-XXVIII, Kolkata, Kolkata V. Smt. Vijaya Srinivasan, wife & Legal representative of Late K. Srinivasan, Kolkata

ITA 1090/KOL/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8067 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2012
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 12-08-2011
• Court: TRIBUNAL
• Department Lawyers: A K MAHAPATRA
• Assessee Lawyers: D S DAMLE
• Keywords: Business income

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [ () . .. . . .. . , ,, , , ! ''# $% ''# $% ''# $% ''# $% ] ]] ] [BEFORE HONBLE SRI C.D.RAO, AM & HONBLE SRI GE ORGE MATHAN, JM] !' !' !' !' /ITA NO.1090/KOL/2011 (%) *+/ ASSESSMENT YEAR : 2008-09 ($- / APPELLANT ) - % - ( /0$- /RESPONDENT) D.C.I.T., CENTRAL CIRCLE-XXVIII, SMT.VIJAYA SRINI VASAN KOLKATA -VERSUS- WIFE & L/R OF LATE K.SRINIVASA N KOLKATA (PAN:AMGPS 8648 N) $- 1 2 / FOR THE APPELLANT: SHRI A.K.MAHAPATRA, CIT(DR) /0$- 1 2 / FOR THE RESPONDENT: SHRI D.S.DAMLE 3%4 1 /DATE OF HEARING : 17.10.2012. 5* 1 /DATE OF PRONOUNCEMENT : 17.10.2012. 6 / ORDER . .. . . .. . , PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST ORDER O F THE LD. CIT(A) CENTRAL-I, KOLKATA DATED 31.05.2011 FOR ASSESSMENT YEAR 2008 -09. 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLO WING GROUND :- THAT IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING INCOME EARNED BY THE ASSESSEE DURING THE F INANCIAL YEAR AS LIABLE TO ASSESSED AS LTCG AND NOT AS BUSINESS INCOME THOUGH THERE WAS THE FACTUAL ASPECT OF FREQUENCY AS WELL AS VOLUMINOUS TRANSACTIONS OF SALE AND PURC HASE OF SHARES BY THE ASSESSEE. 3. AT THE TIME OF HEARING BOTH THE PARTIES FAIRLY CONCEDED THAT THE ISSUE RAISED BY THE REVENUE IS COVERED BY ORDER OF THIS TRIBUNAL VI DE ITA NO.891/KOL/2009 DATED 08.06.2012 IN ASSESSEES OWN CASE FOR A.YR. 2006-07 . IT IS FURTHER OBSERVED THAT THERE IS NO DISPUTE IN RESPECT OF THE FACTS INVOLVED FOR A.YRS.2006-07 AND 2008-09 WHICH IS UNDER APPEAL. 2 4. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.891/KOL /2009 FOR A.YR.2006-07 THE RELEVANT OBSERVATIONS OF THIS TRIBUNAL ARE AS UNDER :- 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, KEEPING IN VIEW OF THE FACT THAT THE LD. DR COULD NOT BRING ANY CONTRARY MATERIAL TO CONTROVERT THE OBSERVATIONS MADE BY LD. CIT(A) A ND THIS TRIBUNAL HAS CONSISTENTLY TAKING THE VIEW THAT SHEER VOLUME OF SURPLUS REALIZ ED, THERE IS NOTHING IN THESE TRANSACTIONS WHICH WOULD REQUIRE THEM TO BE TREATED AS BUSINESS TRANSACTIONS. THE BENEFIT OF SECTION 10(38) OR OF SECTION 111A OF THE ACT IS AGAIN A CONSEQUENCE OF AND INCIDENTAL TO THE TIMING OF THE TRANSACTION. JUST B ECAUSE THESE BENEFITS FOLLOW THE CAPITAL GAIN, WHAT IS CAPITAL GAIN BY THE CRITERIA FOLLOWED IN PRECEDING ASSESSMENT YEARS DO NOT BECOME PROFITS OF BUSINESS. WE FIND NO INFIRMITY IN THE ORDERS OF LD. CIT(A) TO BE INTERFERED WITH. WE CONFIRM THE SAME AND DISMISS TH E APPEAL OF REVENUE. 4.1. KEEPING IN VIEW OF THE FACT THAT THERE IS NO D ISPUTE IN RESPECT OF THE FACTS INVOLVED IN BOTH THE ASSESSMENT YEARS WE FIND NO RE ASON TO DEVIATE FROM THE DECISION TAKEN BY US. THEREFORE WE DISMISS THE APPEAL OF REV ENUE BY FOLLOWING OUR OWN ORDER FOR A.YR.2006-07. 5. IN THE RESULT THE APPEAL OF REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 17.10.2012. SD/- SD/- [ .''# $% , ] [ .., ] [ GEORGE MATHAN ] [ C. D. RAO ] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( ( ) )) ) DATE: 17.10.2012. R.G.(.P.S.) 3 6 1 /((7 87*9- COPY OF THE ORDER FORWARDED TO: 1. SMT. VIJAYA SRINIVASAN, WIFE AND L/R OF SHRI K.SRIN IVASAN, 14, BALLYGUNJE ROAD, KOLKATA-700019. 2 THE D.C.I.T., CENTRAL CIRCLE-XXVIII, KOLKATA. 3. THE CIT- 4. THE CIT(A)-CENTRAL-I, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 07 /(/ TRUE COPY, 6%3/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES