ACIT, Jaipur V. SH. GOPAL DAS SONKIA, Jaipur

ITA 1137/JPR/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7779 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 28-05-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 29-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Assessee Lawyers: G G MUNDRA
• Keywords: Business income
• Section: 14A

Judgement Text

ITA NO. 1137//JP/2011 ACIT VS. SHRI GOPAL DAS SONKIAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 1137/JP/2011 ASSESSMENT YEARS : 2008-09 PAN : BJQPS 9676 A THE ACIT VS. SHRI GOPAL DAS SONKIA CIRCLE- 1 T-29, MAYUR TOWER JAIPUR NEHRU BAZAR, JAIPUR (APPELLANT) (RESPONDENT) C.O. NO. 18/JP/2012 (ARISING OUT OF ITA NO. 1137/JP/2011) ASSESSMENT YEARS : 2008-09 PAN : BJQPS 9676 A SHRI GOPAL DAS SONKIA VS. THE ACIT T-29, MAYUR TOWER CIRCLE- 1 NEHUR BAZAR, JAIPUR JAIPUR (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI D.C. SHARMA ASSESSEE BY : SHRI G.G. MUNDRA DATE OF HEARING: 12-08-2014 DATE OF PRONOUNCEMENT: 05-09-2014 ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST TH E ORDER OF THE LD. CIT(A)- 1, JAIPUR DATED 05-10-2011 FOR THE ASSE SSMENT YEAR 2008-09. THE ASSESSEE HAS FILED THE CROSS OBJECTION. ITA NO. 1137//JP/2011 ACIT VS. SHRI GOPAL DAS SONKIAL 2 2.1 DURING THE COURSE OF HEARING, THE LD. AR HAS NO T PRESSED THE C.O. THUS THE SAME IS DISMISSED BEING NOT PRESSED. 3.1 THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED IN:- (I) DELETING THE DISALLOWANCE OF RS. 9,78,378/- MAD E BY THE AO ON ACCOUNT OF TREATING THE INCOME OF STC G FROM TRANSACTIONS THROUGH PMS AS BUSINESS INCOME. (II) DELETING THE DISALLOWANCE OF RS. 2,12,4,670/-M ADE BY THE AO ON ACCOUNT OF LONG TERM CAPITAL GAIN O F RS. 1,88,89,185/- (ON REDEMPTION OF MUTUAL FUND) CLAIME D AS EXEMPT U/S 10(38) AND RS. 25,55,485/- BY SELLING OF SHARES OF M/S. SHARE STREET (P) LTD. WHICH WERE UNLISTED SHAR ES. (III) DELETING THE DISALLOWANCE OF RS.63,85,224/- (RS.60,91,986 + RS. 2.93,238) MADE BY THE AO BY APP LYING SECTION 14A READ WITH RULE 8D. 3.2 IN THIS CASE, THE ASSESSEE IS AN INDIVIDUAL WHO DERIVES THE INCOME FROM TRADING OF SHARES & SECURITIES, FUTURE AND OPT ION IN THE NAME AND STYLE OF M/S. GOPAL DAS SONKIA (SHARE DIVISION). THE ASSE SSEE ALSO CARRIES ON BUSINESS OF MANUFACTURING AND DEALERSHIP OF GEMS AN D STONES IN THE NAME AND STYLE OF M/S. GOPAL DAS & CO. THE ASSESSEE IS A LSO PARTNER IN VARIOUS FIRMS / SHAREHOLDER/ DIRECTOR IN SOME COMPANIES. 3.3 DURING THE COURSE OF HEARING, THE LD. DR CONTEN DS THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE NEARLY SIMILA R TO THE FACTS IN THE CASE OF ACIT VS. SHYAM SUNDER KHANDELWAL (IN ITA NO. 113 8/JP/2011 BY ITA NO. 1137//JP/2011 ACIT VS. SHRI GOPAL DAS SONKIAL 3 REVENUE & C.O. 16/JP/2012 BY ASSESSEE). IT IS FURT HER PLEADED THAT THE FACTS LEADING TO THE GROUNDS RAISED ABOVE ARE SAME IN NAT URE AS THAT OF THE CASE OF SHRI SHYAM SUNDER KHANDELWAL (SUPRA) AS IN THIS CAS E, THERE IS ALSO INTERMIXING AND INTERLACING OF THE FUNDS BY THE ASS ESSEE. THE SHARE TRADING ACTIVITIES ARE PURPORTEDLY CLAIMED TO BE THE BUSINE SS PORTFOLIO AND INVESTMENT PORTFOLIO. THUS THE GROUND NO. 1 OF THE REVENUE IS THE SAME AS IN THE FACTS AND CIRCUMSTANCES OF THE CASE OF SHRI SHYAM SUNDER KHANDELWAL (SUPRA). 3.4 APROPOS GROUND NO. 2 , THE ISSUE IS IN RESPECT OF SELLING OF SHARES OF M/S. SHARES STREET (P) LTD. I.E. PERTAINING TO UNQU OTED EQUITY SHARES IN PRIVATE COMPANY. THE ASSESSEE SOLD THESE SHARES AT OVERVALUED PRICE AND THE ASSESSEE CLAIMED EXEMPTION U/S 10(38) OF THE ACT. T HE FACTS AND CIRCUMSTANCES OF THE CASE ARE SIMILAR TO THE CASE O F SHRI SHYAM SUNDER KHANDELWAL (SUPRA). 3.5 SIMILARLY THE GROUND NO. 3 IS IN RESPECT OF SE CTION 14A OF THE ACT IN WHICH CASE THE FACTS AND CIRCUMSTANCES ARE SIMILAR TO THE FACTS OF SHRI SHYAM SUNDER KHANDELWAL (SUPRA). 3.6 THE LD. COUNSEL FOR THE ASSESSEE FILED THE WRIT TEN SUBMISSION TO THIS EFFECT AND MADE ARGUMENTS BEFORE US. 3.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE FACTS AND CIR CUMSTANCES OF THE PRESENT CASE ARE SIMILAR TO THE FACTS IN THE CASE OF SHRI S HYAM SUNDER KHANDELWAL ITA NO. 1137//JP/2011 ACIT VS. SHRI GOPAL DAS SONKIAL 4 WHICH HAS BEEN DECIDED BY US ON EVEN DATE FOR THE S AME REASONING AND OBSERVATION THAT WE SET ASIDE THESE ISSUES BACK TO THE FILE OF THE LD. CIT(A) WITH SIMILAR OBSERVATIONS AS MADE IN THE CASE OF SH RI SHYAM SUNDER KHANDELWAL (SUPRA) AND THE SAME SHALL APPLY MUTATIS MUTANDIS. 4.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES AND THE C.O. OF THE ASSESSEE IS DISMISSED. . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05 - 09-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 05 TH SEP. 2014 *MISHRA COPY FORWARDED TO:- 1. THE ACIT, CIRCLE- 1, JAIPUR 2. SHRI GOPAL DAS SONKIA, JAIPUR 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 1137/JP/2011) AR ITAT, JAIPUR ITA NO. 1137//JP/2011 ACIT VS. SHRI GOPAL DAS SONKIAL 5 ITA NO. 1137//JP/2011 ACIT VS. SHRI GOPAL DAS SONKIAL 6 ITA NO. 1137//JP/2011 ACIT VS. SHRI GOPAL DAS SONKIAL 7