The ITO, Ward-9(3), Ahmedabad V. Dr. Niranjan Ramanlal Parikh, Ahmedabad

ITA 1505/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60304 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 30-04-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 26-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI D K TYAGI JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER ITA NO.1505/AHD/2011 WITH C O NO.161/AHD/2011 (ASSESSMENT YEAR:-2008-09) THE INCOME-TAX OFFICER, WARD-9(3), AHMEDABAD V/S DR. NIRANJAN RAMANLAL PARIKH, A-5, JALVIHAR FLATS, NR. NEW RBI, POST: NAVJIVAN, AHMEDABAD PAN: ABCPP 4978 M [APPELLANT] [RESPONDENT] ASSESSEE BY :- SHRI VINOD TANWANI, SR. DR REVENUE BY:- SHRI VIVEK CHAVDA, AR DATE OF HEARING:- 30-04-2012 DATE OF PRONOUNCEMENT:- 30-04-2012 O R D E R PER D K TYAGI (JM) :- THIS APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST AN ORDER DATED 23-03-2011 PASSED BY LEARNED COMMISSIONER OF INCOME- TAX (APPEALS)-XV, [HEREINAFTER REFERRED TO AS THE LEARNED CIT(A)] AHMEDABAD FOR ASSESSMENT YEAR (AY) 2008-09 . THE ONLY GROUND RAISED BY THE REVENUE IN ITS APPEAL REL ATES TO DELETION OF AN ADDITION OF RS.60,76,336/- MADE BY T HE AO TREATING CAPITAL GAINS AS BUSINESS INCOME. 2 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DOCTOR. HE FILED THE RETURN OF INCOME DECLARING TOTAL INCOM E OF 2 2 RS.6,03,460/-. HOWEVER, IT WAS ASSESSED AT RS.64,37 ,870/- U/S 143(3) IN WHICH THE LONG TERM CAPITAL GAINS OF RS.60,76,336/- FROM SHARES WAS TREATED AS BUSINESS INCOME BY THE AO. 3 THE LEARNED CIT(A) DIRECTED THE AO TO TAX THE LO NG TERM CAPITAL GAINS SHOWN BY THE ASSESSEE AS LONG TERM CAPITAL GAINS ONLY AND NOT AS BUSINESS INCOME, FOLLOWING T HE EARLIER APPELLATE ORDER DATED 15-09-2009 IN THE ASSESSEES OWN CASE FOR AY 2006-07. 4 AT THE TIME OF HEARING BEFORE US, THE LEARNED COU NSEL OF THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE ISSUE I S NOW COVERED IN FAVOUR OF THE ASSESSEE IN VIEW OF THE FACT THAT IN EARLIER YEAR I.E. AY 2006-07, THE ORDER OF THE LEARNED CIT(A) DATED 1 5-09-2009 HAS BEEN UPHELD BY THE TRIBUNAL VIDE ITS ORDER DATE D 20-11-2011 IN ITA NO.3082/AHD/2009. THE LEARNED DR DID NOT OBJ ECT TO THE SUBMISSION MADE BY THE LEARNED COUNSEL OF THE ASSES SEE. 5 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORD. WE HAVE ALSO GONE THROUGH THE EARLIER APPELLATE ORDER AS WELL AS THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FO R AY 2006-07 IN ITA NO.3082/AHD/2009, WHEREIN THE TRIBUNAL HAS D ECIDED THE SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE, RESPECTFULLY FOLLOWING THE SAID ORDER OF THE TRIBUNAL, WE UPHOLD THE ORDER OF THE LEARNED CIT(A) IN THIS YEAR ALSO. THE APPEAL FI LED BY THE REVENUE STANDS DISMISSED. 3 3 6 THE CROSS OBJECTION FILED BY THE ASSESSEE IS MERE LY SUPPORTIVE IN NATURE AND THEREFORE HAS BECOME INFRU CTUOUS. THE SAME IS DISMISSED, AS INFRUCTUOUS. 7 IN THE RESULT, THE REVENUES APPEAL AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 30-04-2012 SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 30-04-2012 COPY OF THE ORDER FORWARDED TO: 1. DR. NIRANJAN RAMANLAL PARIKH, A-5, JALVIHAR FLAT S, NR. NEW RBI, POST: NAVJIVAN, AHMEDABAD 2. THE INCOME-TAX OFFICER, WARD-9(3), AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-XV, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD