Sri. Hasmukh Jain, Bangalore V. DCIT, Bangalore

ITA 1126/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 47698 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 31-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 01-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B A NAVEEN
• Assessee Lawyers: BALRAM R RAO SHRI HARS
• Section: 153A; 234B

Judgement Text

ITA.1118 TO 1121, 1125 TO 1127/B/2010 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'B', BANGALORE BEFORE SHRI. N. BHARATHVAJA SANKAR, VICE PRESIDENT AND SHRI. GEORGE GEORGE K. JUDICIAL MEMBER 1. I.T.A NO.1118/BANG/2010 (ASSESSMENT YEAR : 2005-06) 2. I.T.A NO.1119/BANG/2010 (ASSESSMENT YEAR : 2005-06) 3. I.T.A NO.1120/BANG/2010 (ASSESSMENT YEAR : 2005-06) 4. I.T.A NO.1121/BANG/2010 (ASSESSMENT YEAR : 2005-06) 5. I.T.A NO.1125/BANG/2010 (ASSESSMENT YEAR : 2005-06) 6. I.T.A NO.1126/BANG/2010 (ASSESSMENT YEAR : 2005-06) 7. I.T.A NO.1127/BANG/2010 (ASSESSMENT YEAR : 2005-06) 1. SMT. BHANI BAI, PAN : AASPB1330N 2. SHRI. PRAVEEN KUMAR JAIN, PAN : ABCPJ7942F 3. SMT. REKHA JAIN, ACXPR1350F 4. SHRI. KISHORE KUMAR JAIN AARPK1119K NO.162/1, 5TH MAIN ROAD, CHAMARAJPET, BANGALORE 560 018 5. SHRI. PUKHRAJ JAIN, ABKP1595E 6. SHRI. HASMUKH JAIN, ADAPP6578R 7. SMT. INDIRA P. JAIN, ABQPJ4818E NO.127-10, 128-11, 6TH 'C' MAIN, 4TH BLOCK, JAYANAGAR, BANGALORE 560 011 .. APPELLANTS ITA.1118 TO 1121, 1125 TO 1127/B/2010 PAGE - 2 V. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE -1(4), BANGALORE .. RESPONDE NTS 1-4. APPELLANTS BY : SHRI. B. A. NAVEEN, ADVOCATE 5-7. APPELLANTS BY : SHRI. BALRAM R. RAO, ADVOCATE RESPONDENT BY : SHRI. HARSHA PRAKASH, COMMISSIONER OF INCOME-TAX-II O R D E R PER BENCH : THIS IS A BUNCH OF SEVEN APPEALS FILED BY DIFFEREN T ASSESSES BELONGING TO THE SAME GROUP, AGAINST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME-TAX(A)-VI, BANGALORE, DATED2 7.07.2010 AND 05.08.2009. ALL THE APPEALS PERTAIN TO THE COMMON ASSESSMENT YEAR 2005-06. ITA.NOS.1118 TO 1121/BANG/2010 & ITA NOS.1125 TO 1 127/BANG/2010 : 2. IN ALL THESE SEVEN APPEALS THE COMMON ISSUE INVO LVED IS THE DETERMINATION OF THE NATURE OF SURPLUS EARNED BY TH E ASSESSES ON SALE OF SHARES HELD BY THEM. THE ASSESSES HAVE SOLD THEIR SHARES IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDE R APPEAL AND OFFERED THE SURPLUS AS LONG TERM CAPITAL GAINS FOR TAXATION. THE ASSESSING OFFICER HELD THE SALE OF SHARES AS BOGUS AND TREATED THE SURPLUS AS 'INCOME FROM OTHER SOURCES' AS AGAINST T HE CLAIM OF LONG TERM CAPITAL GAINS BY THE ASSESSES. THE ABOVE ACTI ON OF THE ASSESSING ITA.1118 TO 1121, 1125 TO 1127/B/2010 PAGE - 3 OFFICER WAS CONFIRMED BY THE COMMISSIONER OF INCOME -TAX(A). THE ASSESSES ARE AGGRIEVED BY THE ORDERS OF THE LOWER A UTHORITIES AND ARE IN SECOND APPEAL BEFORE THIS TRIBUNAL. 3. WE FIND THAT THIS ISSUE HAS BEEN DEALT WITH AT L ENGTH BY THE EARLIER ORDER OF THE BANGALORE BENCH OF THE TRIBUNA L IN GROUP CASES INVOLVING THIRTY APPEALS OF MEHTA GROUP, CHAJJER GR OUP, TAINWALA GROUP AND NAGORI GROUP ETC., IN ITA NOS.513 TO 526/ BANG/2010, ETC., DATED.23.03.2011, WHEREIN THE TRIBUNAL HAS REMANDED THE MATTER BACK TO THE ASSESSING OFFICER WITH A DIRECTION TO TREAT THE SURPLUS AS LONG- TERM CAPITAL GAINS. THE FACTS AND CIRCUMSTANCES BE ING IDENTICAL IN THESE APPEALS ALSO, FOLLOWING THE ABOVE ORDER OF TH E COORDINATE BENCH, WE REMAND THE MATTER BACK TO THE FILE OF THE ASSESS ING OFFICER TO REDO THE ASSESSMENTS AS PER THE ABOVE DIRECTIONS. THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSES. ITA NOS.1118 TO 1121/BANG/2010 : 4. ANOTHER ISSUE WHICH IS COMMON IN THESE APPEALS O NLY IS THE ISSUE RELATING TO CHALLENGING THE JURISDICTION U/S. 153A OF THE ACT. SINCE THE APPEAL HAS BEEN DECIDED ON MERITS, WHICH IS COVERED BY AN EARLIER ORDER OF THIS TRIBUNAL DATED.23.03.2011, T HE ISSUE RELATING TO THE JURISDICTION DOES NOT SUSTAIN. THIS GROUND IS DISMISSED. ITA.1118 TO 1121, 1125 TO 1127/B/2010 PAGE - 4 ITA.NOS.1118 TO 1121/BANG/2010 & ITA NOS.1125 TO 1 127/BANG/2010 : 5. THE OTHER ISSUE WHICH IS COMMON IN ALL THE SEVEN APPEALS IS THE LEVY OF INTEREST U/SS.234A AND 234B OF THE ACT. TH E LEVY OF INTEREST U/SS.234A AND 234B IS A MATTER OF CONSEQUENCE. HEN CE, WE DIRECT THE ASSESSING OFFICER TO GIVE CONSEQUENTIAL RELIEF TO T HE ASSESSEES WHILE GIVING EFFECT TO OUR ORDER. 6. IN THE RESULT, THE APPEALS IN ITA NOS.1125 TO 11 27/BANG/2010 ARE ALLOWED AND THE APPEALS IN ITA NOS.1118 TO 1121 /BANG/2010 ARE PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 24.06.2011, AT B ANGALORE. SD/- SD/- (GEORGE GEORGE K) (N. BHARATHVAJA SANKAR) JUDICIAL MEMBER VICE PRESIDENT