Assistant Commissioner of Income tax, Pune V. Smt. Gauri Avinash Bhosale, Pune

ITA 1303/PUN/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 5101 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HOSHANG BOMAN IRANI
• Keywords: Capital Gains
• Section: 142(1); 201; 143(2); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 1303 /PUN/201 7 / ASSESSMENT YEAR : 20 1 3 - 1 4 ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 2, PUNE ....... / APPELLANT / V/S. SMT. GAURI AVINASH BHOSALE, 2, ABIL HOUSE, RANGE HILL CORNER, GANESH KHIND ROAD, PUNE - 411007 PAN: AAIPB7421J / RESPONDENT . / ITA NO.1445/PUN/2017 / ASSESSMENT YEAR : 2012 - 13 SMT. GAURI AVINASH BHOSALE, 2, ABIL HOUSE, RANGE HILL CORNER, GANESH KHIND ROAD, PUNE - 411007 PAN: AAIPB7421J ....... / APPELLANT / V/S. ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 2, PUNE / RESPONDENT 2 ITA NO S . 1303 & 1445 /PUN/201 7 , A.Y S . 201 3 - 1 4 & 2012 - 13 ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI H O SHANG BOMAN IRANI / DATE OF HEARING : 1 8 - 1 1 - 2019 / DATE OF PRONOUNCEMENT : 2 5 - 1 1 - 2019 / ORDER PER S.S. VISWANETHRA RAVI, JM : THE ABOVE SAID TWO APPEALS BY THE REVENUE AND ASSESSEE FILED AGAINST SEPARATE ORDERS DATED 28.02.2017 AND 27.02.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - III, PUNE [CIT(A)] FOR ASSESSMENT YEARS 2013 - 14 AND 2012 - 13, RESPECTIVELY. 2. THE ONLY ISSUE EMANATING FROM BOTH THE APPEALS WHETHER SET OFF OF LONG TERM CAPITAL GAINS (LTCG) IS ALLOWED AGAINST BROUGHT FORWARD LONG TERM CAPITAL LOSS (LTCL) IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. SHRI NIKHIL PATHAK , THE LD. AR SUBMITS THE FACTS AND CIRCUMSTANCES IN BOTH THE APPEALS ARE SIMILAR AND IDENTICAL AND PRAYED TO TAKE FACTS IN ASSESSEES APPEAL AS LEAD CASE , THEREFORE, W ITH THE CONSENT OF BOTH THE PARTIES, WE PROCEED TO HEAR BOTH CASES TOGETHER AND PASS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 4. FIRST, WE SHALL TAKE UP APPEAL IN ITA NO.1445/PUN/2017 FOR ASSESSMENT YEAR 2012 - 13. 3 ITA NO S . 1303 & 1445 /PUN/201 7 , A.Y S . 201 3 - 1 4 & 2012 - 13 5 . HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE PRESENT CASE THE ASSESSEE IS AN INDIVIDUAL AND DERIVED INCOME FROM HOUSE PROPERTY, CAPITAL GAINS AND INCOME FROM OTHER SOURCES. THE ASSESSEE FILED RETURN OF INCOME DECLARING A TOT AL INCOME OF RS.31,33,218/ - . NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED, IN RESPONSE TO WHICH AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER AND FILED REQUIRED DETAILS. 6. WE FIND THAT THE ASSESSEE CLA IMED SET OFF OF LONG TERM CAPITAL GAINS ARISING FROM THE SALE OF FLAT IN MUMBAI AGAINST BROUGHT FORWARD CAPITAL LOSS ARISING FROM SALE OF SHARES OF PUBLIC LIMITED COMPANY LISTED IN STOCK EXCHANGE. THE ASSESSING OFFICER HELD LONG TERM CAPITAL GAINS WHERE S TT IS PAID, IS EXEMPT FROM TAX U/S 10(38) OF THE ACT . HE HELD THE LOSS ARISING FROM THE SALE OF SHARES OF LISTED COMPANIES IN STOCK EXCHANGE WITH STT PAID IS DEAD LOSS AND DENIED SET OFF OF LONG TERM CAPITAL GAINS AGAINST BROUGHT FORWARD LOSS . THE CIT(A) CONFIRMED THE VIEW OF ASSESSING OFFICER. SHRI NIKHIL PATHAK, LD. AR SUBMITTED THAT THE SAME CIT(A) FOR ASSESSMENT YEAR 2013 - 14 WHICH IS IMPUGNED BEFORE THIS TRIBUNAL IN ITA NO.1303/PUN/2017 BY THE REVENUE HAS ALLOWED THE CLAIM OF ASSESSEE IN SETTING OFF LTCG AGAINST BROUGHT FORWARD LONG TERM CAPITAL LOSS AND PLACED RELIANCE ON THE ORDER OF THIS TRIBUNAL IN THE CASE OF SHRI SOMNATH VAIJANATH SAKRE . 7. WE FIND THAT CO - ORDINATE BENCH OF THIS TRIBUNAL IN ITS CONSOLIDATED ORDER DATED 08 - 03 - 2019 IN THE CASE OF SHRI SOMNATH VAIJANATH SAKRE IN ITA NO.2986/PUN/2016 AND ITA NO.2605/PUN/2016 FOR ASSESSMENT YEAR 4 ITA NO S . 1303 & 1445 /PUN/201 7 , A.Y S . 201 3 - 1 4 & 2012 - 13 2012 - 13 HELD THAT THE ASSESSEE THEREIN IS ENTITLED TO SET OFF LOSS OF LONG TERM CAPITAL GAINS FROM THE SHARES ON WHICH SECURITY TRANSACTION IS PAID OR PAYA BLE AGAINST T HE LONG TERM CAPITAL GAINS EARNED FROM SHARES ON WHICH NO SECURITY TRANSACTION IS PAID OR PAYABLE. WE NOTE THAT IN ORDER TO COME TO SUCH CONCLUSION, CO - ORDINATE BENCH PLACED RELIANCE ON THE ORDER OF MUMBAI ITAT IN THE CASE OF RAPTAKOS BRETT & CO. LTD., VS. DCIT IN ITA NO.3317/MUM/2009 & ITA NO.1692/MUM/2010, DATED 10.06.2015. WE FIND THE FACTS AND CIRCUMSTANCES OF THE SAID CASE ARE SIMILAR, BASING ON SAME IDENTICAL FACTS. THEREFORE, IN OUR OPINION, IN THE PRESENT CASE, THE ASSESSEE IS ENTITL ED TO SET OFF OF BROUGHT FORWARD LOSSES FROM LONG TERM CAPITAL GAINS FROM THE SHARES LISTED IN STOCK EXCHANGE ON WHICH SECURITY TRANSACTION IS PAID OR PAYABLE. THEREFORE, THE ORDER OF CIT(A) IN CONFIRMING THE ORDER OF ASSESSING OFFICER IN NOT ALLOWING SET OFF OF LONG TERM CAPITAL GAINS AGAINST BROUGHT FORWARD LONG TERM CAPITAL LOSS IS NOT JUSTIFIED. THUS, GROUND NO.1 RAISED BY THE ASSESSEE IS ALLOWED. 8 . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. 9 . NEXT, WE SHALL TAKE UP APPEAL IN ITA NO.1303/PUN/2017 FILED BY THE REVENUE FOR ASSESSMENT YEAR 2013 - 14. 10. WE FIND GROUNDS NO.1 TO 3 RAISED BY THE REVENUE ARE SIMILAR TO THE GROUND NO.1 RAISED BY ASSESSEE IN ITA NO.1445/PUN/2017, WHEREIN WE DECIDED THE ISSUE IN FAVOUR OF ASSESSEE IN THE AFOREMENTIONED PARAGRAPHS. THEREFORE, THE ORDER OF CIT(A) IN ALLOWING SET OFF OF LONG TERM CAPITAL GAINS 5 ITA NO S . 1303 & 1445 /PUN/201 7 , A.Y S . 201 3 - 1 4 & 2012 - 13 AGAINST BROUGHT FORWARD LONG TERM CAPITAL LOSS IS JUSTIFIED. THUS, GROUNDS NO.1 TO 3 RAISED BY REVENUE ARE DISMIS SED. 11 . IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. 12. TO SUM UP, THE APPEAL OF ASSESSEE IS ALLOWED AND THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 T H NOVEM BER, 2019. SD/ - SD/ - ( ANIL CHATURVEDI ) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 2 5 T H NOVEMB ER, 2019 GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 3 , PUNE 4. / THE PR. CIT - 2 , PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / SR. PRIVATE SECRETARY , / ITAT, PUNE