DCIT, Circle - 11, Kolkata, Kolkata V. M/s. Century Plyboards (I) Ltd., Kolkata

ITA 134/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9325 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 05-05-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 22-01-2010
• Court: TRIBUNAL
• Department Lawyers: A K TULSIYAN LD
• Assessee Lawyers: S S KUMAR LD
• Keywords: Business income

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA () . . , , !' ..! , # , ,, , ) [BEFORE HONBLE SRI D.K.TYAGI, JM & HONBLE SRI C.D.RAO,, AM] '$ / I.T.A NO. 134/KOL/2010 %&' !() / ASSESSMENT YEAR : 2006-07 DEPUTY COMMISSIONER OF INCOME-TAX,- VS- M/S. CENTURY PLYBOARDS (I) LTD CIR-II, KOLKATA PAN: AABCC 1682J (+, /APPELLANT ) (-+,/ RESPONDENT ) +, / FOR THE APPELLANT : . / SHRI S.S. KUMAR, LD.DR -+, / FOR THE RESPONDENT : . / SHRI A.K TULSIYAN, LD.AR / / ORDER ..! , , , , # , ,, , SHRI C.D.RAO, ACCOUNTANT MEMBER . : THE REVENUE IS IN APPEAL AGAINST THE ORDER D T. 28-10-2009 OF THE COMMISSIONER OF INCOME-TAX (APPEALS), KOLKATA FOR THE AY 2006-07 . 2. THE ONLY GROUND TAKEN BY THE REVENUE IS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, HONBLE CIT(A) HAS ERRED IN TREATING THE INCOME OF RS.2,97, 68,343/- AS LONG TERM CAPITAL GAIN WHICH SHOULD BE TREATED A S INCOME FROM BUSINESS AND PROFESSION ON THE BASIS OF DECISI ON IN THE CASES OF (1) CIT -VS- DISTRIBUTORS BORODA (83 ITR 3 77(SC)], (II) CIT -VS- AMALGAMATIONS PVT. LTD.[108 ITR 885(M AD)], (III) CIT -US- K.S.VENKATASUBBAIAH REDDIAR [222 ITR 18(MAD)J, (IV) STATE OFANDHRA PRADESH US- H. ABDUL BAKSHI & BRS. [(1964) 15 STC 644(SC)] AND (V) G. VENKATASWAMY NAIDU & CO. -VS. - CITI(1959) 35 IT R 594 (SC)]. 3. AT THE TIME OF HEARING BEFORE US BOTH THE PARTIE S FAIRLY CONCEDED THAT THIS ISSUE IS COVERED BY THE EARLIER ORDER OF THE ITAT IN ASSE SSEES OWN CASE FOR THE AY 2005- 06 [ITA NO.552 & 1060/KOL/2009 FOR THE AY 2005-06 O RDER DATED 4-9-09]. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO FILED COPIES OF S AID ORDER IN ASSESSEES OWN CASE AND THE CASES OF OTHER ASSESSEE ON THE SIMILAR ISSU E, WHICH ARE AVAILABLE AT PAGES 1-13 & 14-36 OF THE PAPER BOOK FILED BY THE ASSESSEE. ITA NO.134/KOL/2010-CDR 2 4. AFTER HEARING THE RIVAL SUBMISSIONS, ON CAREFU L PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS OBSERVED THAT THE LD.CIT (A) HAS DIRECTED THE AO TO ACCEPT THE LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL G AIN BY OBSERVING AS UNDER:- IN VIEW OF THE DISCUSSION AND RESPECTFULLY FOLLOWI NG THE KOLKATA TRIBUNAL DECISION IN RELIANCE TRADING ENTER PRISES LTD. (SURA), REENA SAROGI (SUPRA) AND KAVITA PARSRA MKA (SUPRA) AND KOLKATA TRIBUNAL DECISION IN APPELLANT S OWN CASE FOR A.Y. 20QSOPND THE RATIO LAID DOWN BY THE COURTS INCLUDING SUPREME COURT IN THE ABOVE CITED CASES, I HOLD THE GAINS ON ACCOUNT OF SALE OF SHARES AND SECURITIES SHALL BE T REATED AS CAPITAL GAINS AS AGAINST BUSINESS INCOME ASSESSED B Y THE A.O. ACCORDINGLY, I DIRECT THE A.O TO ACCEPT THE LTCG AN D STCG AS SHOWN BY THE APPELLANT. THE APPELLANTS GROUND IS U PHELD ON THIS COUNT. 4.1 KEEPING IN VIEW OF THE FACT THAT THE LD.CIT(A) HAS FOLLOWED THE TRIBUNALS ORDER IN ASSESSEES OWN CASE IN ITA NOS. 552 & 1060 /KOL/2009 AY 2005-06 DATED 4-9-2009 WE FIND NO INFIRMITY IN THE ORDER OF THE L D.CIT(A) IN DIRECTING THE AO TO ACCEPT THE LTCG AND STCG AS SHOWN/CLAIMED BY THE AS SESSEE. ACCORDINGLY, WE UPHOLD THE SAME. THE GROUND RAISED BY THE REVENUE I S DISMISSED. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMISSED . 0 / #1 2 1& 03 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 11-0 2-2011 SD/- SD/ - (. . ), ( ..! ), # , (D.K.TYAGI), JUDICIAL MEMBER. ) ( C.D. RAO, ACCOUNTANT MEMBER) (#) DATE :11-02-2011 *PP / SR. PRIVATE SECRETARY : / 4 -%%5 65(7- COPY OF THE ORDER FORWARDED TO: 1. (+, / APPELLANT ) : DCIT,CIR-II, P-7 CHOWRINGHEE SQ, KOL-69. 2. ( -+,/ RESPONDENT) : M/S. CENTURY PLYBOARDS (I) LTD 6 LYON S RANGE, KOL-1. 3. %/& ()/ THE CIT(A) 4. %/& ()/ THE CIT 5. !9% -%& / DR, KOLKATA BENCH 6. GUARD FILE 5 -%/ TRUE COPY, /&1/ BY ORDER . ': /ASSTT REGISTRAR