The ACIT, Circle- 7, Ahmedabad V. Shri Bharat P. Padia,HUF, Ahmedabad

ITA 1439/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9868 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: ADITI SHETH
• Keywords: Unexplained cash credit; Business income; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER) ITA NO: 1439/AHD/2013 (ASSESSMENT YEAR: 2009-10) A.C.I.T., CIRCLE-7, AHMEDABAD VS SHRI BHARAT P. PADIA, HUF, 21, VARUNDAVAN BUNGLOWS, VIBHAG - I, NR. MEDILINK HOSPITAL, SATELLITE, AHMEDABAD - 380015 (APPELLANT) (RESPONDENT) PAN: AABHB0302H APPELLANT BY : SHRI NARENDRA SINGH, SR. D .R. RESPONDENT BY : MS. ADITI SHETH, A.R. ( )/ ORDER DATE OF HEARING : 11-01-201 6 DATE OF PRONOUNCEMENT : 13-01-2016 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-XIV, AHMEDABAD DATED 19.03.2013 FOR A.Y. 2009-10. 2. THE GROUND RAISED BY THE REVENUE IN THE PRESENT APP EAL READS AS UNDER:- I). THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.44,29,713/- MADE U/S.68 TREATING THE STCG DECLAR ED BY THE ASSESSEE AS BEING UNEXPLAINED CASH CREDITS. ITA NO .1439 /AHD/2013 . A.Y. 2009-1 0 2 II) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ACCEPTING THE CONTENTION OF THE ASSESSEE THAT SALE OF SHARES WERE GENUINE, WHICH WA S SUBSTANTIATED BY BOGUS DOCUMENTS. III) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. IV) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A) MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THAT ASSESSEE HAD TREATED INCOME ON SALE OF SHARES AS SHORT TERM CAPITAL GAIN AND PAID THE TAX AT 15% AS AGAINST WHICH ASSESSING OFFICER TREATED THE INCOME EARNED FROM SALE OF SHARES AS BUSINESS INCOME AND TAXED IT AT 30%. S HE SUBMITTED THAT THE ADDITIONAL TAX ON ACCOUNT OF TREATING INCOME ON SAL E OF SHARES AS BUSINESS INCOME INSTEAD OF SHORT TERM CAPITAL GAIN IS RS .6,64,457/- (THE COPY OF CALCULATION WAS PLACED ON RECORD) WHICH IS BELOW TH E LIMIT PRESCRIBED BY THE RECENT CBDT CIRCULAR NO. 21 OF 2015 DATED 10.12.201 5. SHE, THEREFORE, SUBMITTED THAT IN VIEW OF THE AFORESAID CBDT CIRCUL AR, THE APPEAL OF REVENUE NEEDS TO BE DISMISSED. THE LD. D.R. DID NO T OBJECT TO THE CALCULATION OF TAX EFFECT WHICH WAS SUBMITTED BY LD . A.R. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REV ENUE, WE FIND THAT THE TAX EFFECT OF THE IMPUGNED ADDITION IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT ) DATED 10.12.2015 (CIRCULAR NO. 21 OF 2015), NO DEPARTMENT APPEALS AR E TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX TR IBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS. 10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PEND ING APPEALS. IN THE PRESENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT ON THE AD DITIONS WHICH ARE IN DISPUTE ITA NO .1439 /AHD/2013 . A.Y. 2009-1 0 3 THE TAX EFFECT IS LESS THAN RS. 10 LACS, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESA ID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EF FECT. IN SUCH CIRCUMSTANCES, WE DISMISS THE APPEAL OF REVENUE WIT HOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 13-01- 2016. SD/- SD/- (S. S. GODARA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED. 13/01/2016 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD