DCIT, New Delhi V. M/s. D & M Components Ltd., New Delhi

ITA 1305/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74062 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-02-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 06-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Keywords: Business income
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI) BEFORE SHRI U. B. S. BEDI, JUDICIAL MEMBER AND SHRI B. C. MEENA , ACCOUNTANT MEMBER I.T.A. NO. 1305 /DEL/2013 (ASSESSMENT YEAR 2008-09) DCIT, CIRCLE 10(1), VS. D & M COMPONENTS LTD., NEW DELHI 103, PRATAP BHAWAN, BAHADURSHAH ZAFAR MARG, I. P. ESTATE, NEW DELHI PAN/GIR NO.: AABCD8920G (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI ASHWANI KUMAR, CA DEPARTMENT BY: SMT. NIDHI SRIVASTAVA, SR. DR ORDER PER U B S BEDI, JUDICIAL MEMBER: THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A) - VI, NEW DELHI DATED 17.12.2012 RELEVAN T TO ASSESSMENT YEAR 2008-09 WHEREBY, THE FOLLOWING SINGLE EFFECTIVE GRO UND HAS BEEN RAISED BY THE DEPARTMENT. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) IS RIGHT IN DIRECTING THE A.O. TO TREAT INCO ME FORM SALES OF SHARES AS ASSESSABLE AS LONG TERM CAPITAL GAINS A ND SHORT TERM CAPITAL GAINS INSTEAD OF BUSINESS INCOME ASSESSE D BY THE A.O. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF AUTO COMPONENTS IN RESPECT OF THREE I.T.A. NO.305/DEL/2013 2 WHEELERS SCOOTERS. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.57,100/- FOR THE REL EVANT ASSESSMENT YEAR ON 28.09.2008. SUBSEQUENTLY, THE CASE WAS SELECTED FO R SCRUTINY AND STATUTORY NOTICES U/S 143(2) AND 142(1) WERE SERVED UPON THE ASSESSEE COMPANY. DURING THE COURSE OF ASSESSMENT, THE A.O. NOTED THA T THE ASSESSEE COMPANY HAD DECLARED SHORT TERM CAPITAL GAINS AT RS.10,83,5 17/- AND LONG TERM CAPITAL GAIN AT RS.86,60,412/- BESIDES, THE BUSINESS INCOME . DURING THE ASSESSMENT PROCEEDINGS, THE A.O. TREATED THE SHORT TERM AND LO NG TERM CAPITAL GAINS DECLARED BY THE ASSESSEE COMPANY AS BUSINESS INCOME AND COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT VIDE HIS ORDER DAT ED 30.11.2010. 3. AGGRIEVED BY THE AFORESAID DECISION, THE ASSESSE E TOOK UP THE MATER IN APPEAL AND SUBMITTED BEFORE THE FIRST APPELLATE AUT HORITY THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE COMPANY VIDE APPE LLATE ORDER DATED 16.04.2009 PASSED BY LD. CIT(A) XIII, NEW DELHI FOR THE ASSESSMENT YEAR 2006-07. THE SAME ISSUE ALSO STANDS COVERED IN FAV OUR OF THE ASSESSEE COMPANY VIDE ORDER DATED 02.12.2011 PASSED BY ITAT, NEW DELHI IN I.T.A. NO. 2687/DEL/2009 AND I.T.A. NO. 3114/DEL/2009. TH E LD. A.R. FOR THE ASSESSEE ALSO FURNISHED COPIES OF THE AFORESAID ORD ERS AND REQUESTED THE FIRST APPELLATE AUTHORITY TO DECIDE THE ISSUE KEEPING IN VIEW THE AFORESAID DECISIONS OF ITAT. 4. LD. CIT(A), WHILE CONSIDERING AND ACCEPTING THE PLEA OF THE ASSESSEE, OBSERVED THAT THE IDENTICAL ADDITION WERE MADE BY T HE A.O. IN THE CASE OF THE ASSESSEE COMPANY IN ASSESSMENT YEAR 2006-07, WHICH HAVE BEEN DELETED BY ITAT FOR THAT YEAR VIDE ORDER DATED 02.12.2011 AND BY REPRODUCING PARAS 7, 8 & 9 OF THE TRIBUNAL ORDER FOR THE ASSESSMENT YEAR 2006-07, LD. CIT(A) I.T.A. NO.305/DEL/2013 3 CONCLUDED TO DELETE THE IMPUGNED ADDITION AS PER 2 ND BUT LAST PARA OF HIS ORDER WHICH READS AS UNDER: SINCE, THERE IS NO CHANGE IN THE FACTS AND CIRCUMS TANCES OF THE PRESENT CASE FORM THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07. RESPECTFULLY FOLLOWING THE AFORESAID DECI SIONS OF HONBLE ITAT, ADDITIONS MADE BY THE A.O. ON ACCOUNT OF CAP ITAL GAINS BEING TREATED AS BUSINESS INCOME OF RS.94,84,009/- IS D IRECTED TO BE DELETED. 5. AGGRIEVED BY THIS ORDER OF LD. CIT(A), DEPARTMEN T HAS COME UP IN APPEAL AND WHILE RELYING UPON THE A.O.S ORDER, IT WAS PLEADED FOR REVERSAL OF THE ORDER OF LD. CIT(A). 6. LD. D.R. WAS ASKED TO COMMENT WHETHER THERE IS A NY CHANGE OF FACTS IN THE ISSUE INVOLVED FOR THE YEAR UNDER CONSIDERAT ION AND FOR ASSESSMENT YEAR 2006-07, WHICH HAS BEEN DECIDED BY THE TRIBUNA L IN ASSESSEES OWN CASE, SHE HAD NO COMMENTS TO OFFER. WHEREAS, THE L D. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE IT IS COVERED ISSUE I N FAVOUR OF THE ASSESSEE BY EARLIER DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07 AND LD. CIT(A) HAS FOLLOWED THAT ITAT DECISION TO DELETE THE IMPUGNED ADDITION AND THE DEPARTMENT HAS NOT COME F ORWARD WITH ANY CONTRARY DECISION, THEREFORE, THE ORDER OF LD. CIT( A) MAY BE UPHELD AND THE APPEAL OF THE REVENUE SHOULD BE DISMISSED. 7. AFTER HAVING HEARD BOTH THE SIDES AND CONSIDERIN G THE MATERIAL ON RECORD AS WELL AS THE PRECEDENT RELIED UPON BY THE LD. CIT(A) WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE, AS THERE IS NO CHANGE IN FACTS AND NO CONTRARY MATERIAL HAS BEEN PLACED BY THE DEPARTMENT WHEN THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE, THEREFO RE, FOLLOWING EARLIER I.T.A. NO.305/DEL/2013 4 DECISION OF ITAT IN ASSESSEES OWN CASE FOR ASSESSM ENT YEAR 2006-07, WE UPHOLD THE ORDER OF LD. CIT(A) AND DISMISS THE APPE AL OF THE DEPARTMENT. 8. AS A RESULT, THE APPEAL OF THE REVENUE GETS DISM ISSED. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH FEB., 2014. SD./- SD./- (B. C. MEENA) (U.B.S.BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 14 TH FEB., 2014. SP. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXV, NEW DELHI AR, ITAT, 5. CIT(ITAT), NEW DELHI NEW DELHI