The DCIT, Central Circle-1(1), Ahmedabad V. Smt. Niketa S.Shah, Ahmedabad

ITA 1391/AHD/2010

• Counselvise Citation: 139120514 RSA 2010
• Duration Of Justice: 5 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 30-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JAGDISH S SHRI M K PATEL
• Keywords: Business income; Audit objection; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER SL. NO(S) IT (SS) A NO(S) / ITA NO. ASSESSMENT YEAR(S) APPEAL(S) BY: APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. IT(SS)A NO S . 384/AHD/2010 2004 - 05 ACIT CENTRAL CIRCLE-1(3) AHMEDABAD SHRI AKASH R.KASAT 804, AVDHESH HOUSE OPP. GURUDWARA SG ROAD, THALTEJ AHMEDABAD PAN : AJNPK 5481 B 2. 385/AHD/2010 2005 - 06 - DO - REVENUE - DO - ASSESSEE 3. 387/AHD/2010 2007 - 0 8 - DO - REVENUE - DO - ASSESSEE 4. 38 8 /AHD/2010 2004 - 05 - DO - REVENUE MISS.KUNJAN R.KASAT AHMEDABAD -ADDRESS AS ABOVE- PAN: AIBPK 6773 F 5. 38 9 /AHD/2010 2005 - 06 - DO - REVENUE - DO - ASSESSEE 6. 3 91 /AHD/2010 2007 - 08 - DO - REVENUE - DO - ASSESSEE 7. 3 9 4/AHD/2010 2005 - 06 - DO - REVENUE SMT.JYOTI R.KASAT AHMEDABAD -ADDRESS AS ABOVE- PAN: AFOPK 3207 N 8. ITA 1391/AHD/2010 2007 - 08 DCIT CENT.CIR-1(1) AHMEDABAD SMT.NIKETA S.SHAH B-203, RATNAMANI COMPLEX JODHPUR CROSS ROAD AHMEDABAD PAN: ACKPS 9509 G REVENUE BY : SHRI JAGDISH CIT-DR ASSESSEE(S)BY : SHRI M.K. PATEL, AR / DATE OF HEARING 16/02/2016 / DATE OF PRONOUNCEMENT 17/02/2016 / O R D E R IT(SS)A NOS.384,385,387,388,389,391 &394/AHD/2010 AND ITA NO.1391/AHD/2010 - 2 - PER BENCH : THIS BUNCH OF EIGHT APPEALS BY THE REVENUE IN THE CASES OF DIFFERENT FOUR ASSESSEES ARE DIRECTED AGAINST THE S EPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-I, AHMEDABAD [CIT(A) IN SHORT] DATED 16/02/2010 [IN THE CASES OF SHRI AKAS H R.KASAT FOR AYS 2004-05, 2005-06 & 2007-08, MISS.KUNJAN R.KASAT FOR AYS 2004-05, 2005-06 & 2007-08 & SMT.JYOTI R.KASAT FOR AY 2005-0 6] AND DATED 15/03/2010 IN THE CASE OF SMT.NIKETA S.SHAH FOR AY 2007-08. SINCE COMMON ISSUES AND FACTS ARE INVOLVED IN ALL THESE A PPEALS, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEES HAVE RAISED THE FOLLOWING COMMON GROUNDS OF APPEAL:- IN IT(SS)A NO.384/AHD/2010 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING THE ASSESSING OFFICER TO TAX RS.22,83,506/- ON SURPLUS ARISING FROM SALE OF SHARES AND SECURITIES AS SHORT TERM CAPITAL GAIN S AND NOT AS BUSINESS INCOME. IN IT(SS)A NO.385/AHD/2010 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRE CTING THE ASSESSING OFFICER TO TAX RS.25,80,263/- ON SURPLUS ARISING FROM SALE OF SHARES AND SECURITIES AS SHORT TERM CAPITAL GAIN S AND RS.33,432/- ON SURPLUS ARISING FROM SALE OF SHARES AND SECURITI ES AS LONG TERMS CAPITAL AND NOT AS BUSINESS INCOME. IT(SS)A NOS.384,385,387,388,389,391 &394/AHD/2010 AND ITA NO.1391/AHD/2010 - 3 - IN IT(SS)A NO.387/AHD/2010 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING THE ASSESSING OFFICER TO TREAT SHORT CAPITAL LOSS OF RS .(-) 180884/- AND SURPLUS OF RS.18,76,603/- ARISING FROM SALE OF SHAR ES AND SECURITIES AS LONG TERM CAPITAL GAINS AND NOT AS BUSINESS INCO ME. IN IT(SS)A NO.388/AHD/2010 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING THE ASSESSING OFFICER TO TAX RS.23,37,689/- ON SURPLUS ARISING FROM SALE OF SHARES AND SECURITIES AS SHORT TERM CAPITAL GAIN S AND NOT AS BUSINESS INCOME. IN IT(SS)A NO.389/AHD/2010 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRE CTING THE ASSESSING OFFICER TO TAX RS.11,64,042/- ARISING FR OM SALE OF SHARES AND SECURITIES AS SHORT TERM CAPITAL GAINS AND ALSO ON SURPLUS ARISING FROM SALE OF SHARES AS LTCG AMOUNTING TO RS .10,73,064/- AND NOT AS BUSINESS INCOME. IN IT(SS)A NO.391/AHD/2010 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING THE ASSESSING OFFICER TO TAX SURPLUS OF RS.4,96,759/- ARISING FROM SALE OF SHARES AND SECURITIES AS SHORT TERM CAPITAL GAIN S AND ALSO ON SURPLUS ARISING FROM SALE OF SHARES AS LTCG AMOUNTI NG TO RS.12,83,991/- AND NOT AS BUSINESS INCOME. IN IT(SS)A NO.394/AHD/2010 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING THE ASSESSING OFFICER TO TAX RS.1,95,656/- ON SURPLUS A RISING FROM SALE OF SHARES AND SECURITIES AS SHORT TERM CAPITAL GAINS A ND RS.11,78,439/- ON SURPLUS ARISING FROM SALE OF SHARES AND SECURITI ES AS LONG TERM CAPITAL AND NOT AS BUSINESS INCOME. IN ITA NO.1391/AHD/2010 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN TRE ATING LOSS OF RS.11,97,927/- ARISING OUT OF SHARE TRANSACTION AS SHORT TERM CAPITAL LOSS. IT(SS)A NOS.384,385,387,388,389,391 &394/AHD/2010 AND ITA NO.1391/AHD/2010 - 4 - 2. AT THE OUTSET, LD.COUNSEL FOR THE ASSESSEE POINT ED OUT THAT AS PER CENTRAL BOARD OF DIRECT TAXES CIRCULAR NO.21/2015 I N F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER-2015, THE REV ISED LIMIT FOR PREFERRING REVENUES APPEAL IS RS.10 LACS. HE S UBMITTED THAT THE TAX EFFECT IN THE PRESENT REVENUES APPEALS IS BELOW TH E PRESCRIBED LIMIT OF RS.10 LACS. HE, THEREFORE, PLEADED THAT IN VIEW OF THE CBDT CIRCULAR, THE REVENUE'S APPEALS MAY BE DISMISSED AS THE TAX E FFECT BEING BELOW THE PRESCRIBED LIMIT. 2.1. THE LD.CIT-DEPARTMENTAL REPRESENTATIVE COULD N OT CONTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE AS SESSEE. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. WE FIND THAT THE PRESENT APPEALS OF THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 I N F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WH ICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE CO MMISSIONER OF INCOME- TAX (APPEALS)S ORDER IS BELOW RS. 10 LAKHS, THEN T HAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIO NS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLIC ABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR AD DITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UN DISCLOSED FOREIGN IT(SS)A NOS.384,385,387,388,389,391 &394/AHD/2010 AND ITA NO.1391/AHD/2010 - 5 - ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT THE PRES ENT CASES DO NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX EFFECT IN E ACH CASE IS LESS THAN RS. 10 LAKHS. THEREFORE, THE PRESENT APPEALS OF TH E REVENUE ARE NOT MAINTAINABLE AND, HENCE, DISMISSED. 4. IN THE RESULT, ALL THE REVENUES APPEALS, I.E. IT(SS)A NOS.384, 385, 387, 388, 389, 391, 394/AHD/2010 AND ITA NO.13 91/AHD/2010 ARE DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY, THE 17 TH DAY OF FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 17 / 02 /2016 &.. , .../ T.C. NAIR, SR. PS !'#'$ / COPY OF THE ORDER FORWARDED TO : 1. () *+ / THE APPELLANT 2. ,*+ / THE RESPONDENT. 3. -.-/0 1 / CONCERNED CIT 4. 1 ( () ) / THE CIT(A)- 5. 23 /0 , () (/0 , (. / DR, ITAT, AHMEDABAD 6. 356 7 / GUARD FILE. / BY ORDER, ,2) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD