Vikram Vishwanath, V. JCIT,

ITA 155/BANG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86047 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: FARHAT HUSSAIN QURESHI J
• Assessee Lawyers: V G GURUNATHAN
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SMT. P. MADHAVI DEVI , JUDICIAL MEMBER A ND SHRI ABRAHAM P GEORGE , ACCOUNTANT MEMBER ITA NO. 1 55/B ANG/2013 (ASSESSMENT YEAR: 20 0 9 - 1 0) SHRI VIKRAM VISWANATH, 865, 12 TH MAIN, III BLO CK, NEAR RAMA TEMPLE, KORAMANGALA, BANGALOR E - 560034. APPELLANT PAN: ACAPV 6310 J VS. JOINT COMMISSIONER OF INCOME - TAX (OSD) CIRCLE 1 2( 5 ), BANGALORE. RESPONDENT APPELLANT BY: SHRI V.G.GURUNATHAN, ADVOCATE. RESPONDENT BY: SHRI FARHAT HUSSAIN QURESHI, JCIT(DR). DATE OF HEARING : 1 8 /02/2015 . DATE OF PRONOUNCEMENT: 20 /02/2015 . O R D E R PER SMT. P.MADHAVI DEVI, JM : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - II I, BANGALOR E, DATED 31/01/2013 FOR THE ASSESSMENT YEAR 200 9 - 10 . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, AN INDIVIDUAL, FILED HIS RETURN OF INCOME ON 31/3/2010 DECLARING ITA NO . 155 / BANG/2013 SHRI VIKRAM VISWANATH. PAGE 2 OF 4 INCOME OF RS.46,35,392/ - . DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE I NCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT], THE ASSESSING OFFICER (AO) OBSERVED THAT THE ASSESSEE HAD COMPUTED LONG TERM CAPITAL GAIN ON ACCOUNT OF TRANSFER OF SHARES HELD IN VIKRAM LOGISTICS AND MARITIME SERVICES PVT. LTD.,(VLMS) TO M/S.ANURADHA HOLDINGS (P) LTD., ON ACCOUNT OF TRANSFER OF BUSINESS AS A GOING CONCERN. THE ASSESSEE CLAIMED EXEMPTION U/S 47(XIV) OF THE ACT IN RESPECT OF THE ABOVE LONG TERM CAPITAL GAINS. THE AO DECLINED TO ACCEPT THE CLAIM OF THE ASSESSEE WITH REG ARD TO THE EXEMPTION U/S 47(XIV) OF THE ACT ALLEGING THAT THE SHARES HELD BY THE IN VLMS WERE NOT BUSINESS ASSETS AND CONSEQUENTLY THE CAPITAL GAINS ARISING FROM TRANSFER OF THE ABOVE SHARES WAS NOT LIABLE TO BE EXEMPTED U/S 47(XIV) OF THE ACT. 3. THE SAME WAS CHALLENGED BEFORE THE CIT(A) WHO UPHELD THE ORDER OF THE AO AND THE ASSESSEE FURTHER APPEALED BEFORE THE TRIBUNAL WHEREIN THE TRIBUNAL HAD HELD THAT THE SAME IS NOT EXIGIBLE TO TAX. AGAINST THE SAME, THE REVENUE PREFERRED AN APPEAL BEFOR E THE HON BLE HIGH COURT OF KARNATAKA AND THE HON BLE HIGH COURT VIDE ORDER DATED 30/7/2014 CONFIRMED THE ORDER OF THE TRIBUNAL. MEANWHILE , WHILE THE ASSESSEE S APPEAL WAS PENDING BEFORE THE CIT(A) , THE ASSESSEE HAD MADE AN APPLICATION U/S 154 OF THE ACT STATING THAT THERE WAS NO TRANSFER OF SHARES IN THE RELEVANT ASSESSMENT YEAR 2009 - 10 THOUGH THE ASSESSEE HAD COMPUTED CAPITAL GAINS TO SEEK EXEMPTION U/S ITA NO . 155 / BANG/2013 SHRI VIKRAM VISWANATH. PAGE 3 OF 4 47(XIV) OF THE ACT. ACCORDING TO THE ASSESSEE, THE TRANSFER HAD TAKEN PLACE IN THE NEXT YEAR I.E. ON 3/2/2010 AND STAMP DUTY HAD BEEN PAID ON THE SAME DATE PROVES THAT THE TRANSFER IS IN THE SUBSEQUENT YEAR. THE ASSESSEE, THEREFORE, SOUGHT RECTIFICATION OF THE ORDER OF THE AO. THE AO REJECTED THE ASSESSEE S CONTENTION AGAINST WHICH THE ASSESSEE PREFERRE D AN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE ORDER OF THE AO AND THE ASSESSEE IS IN SECOND APPEAL BEFORE US. 4. AT THE TIME OF HEARING , THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE ISSUE OF EXEMPTION FROM TAXABILITY OF THE LONG TE RM CAPITAL GAIN HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE HON BLE HIGH COURT OF KARNATAKA AND IT WAS HELD THAT THE SAME IS NOT CHARGEABLE TO TAX, THE ISSUE OF YEAR OF TAXABILITY HAS BECOME INFRUCTUOUS. HE, THEREFORE, SUBMITTED THAT THE APPEAL BEFO RE THE TRIBUNAL MAY BE DISMISSED AS INFRUCTUOUS. THE LEARNED DEPARTMENTAL REPRESENTATIVE, HOWEVER, PRAYED THAT THE APPEAL MAY BE DISMISSED HOLDING THAT THE APPLICATION U/S 154 WAS NOT MAINTAINABLE. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND TH E MATERIAL ON RECORD, WE FIND THAT THE ASSESSMENT COMPLETED U/S 143(3) REJECTING THE EXEMPTION CLAIMED BY THE ASSESSEE HAS BEEN SET ASIDE BY THE HON BLE HIGH COURT. THE ISSUE OF YEAR OF TAXABILITY WAS NOT DISPUTED BEFORE THE AO DURING THE ASSESSMENT ITA NO . 155 / BANG/2013 SHRI VIKRAM VISWANATH. PAGE 4 OF 4 PROCE EDINGS U/S 143(3) . IT WAS ONLY BY THE RECTIFICATION APPLICATION THAT THE ASSESSEE HAD PRAYED FOR CONSIDERATION OF THE YEAR OF TAXABILITY TO BE THE NEXT YEAR. SINCE THE ORIGINAL ASSESSMENT ORDER ITSELF HAS BEEN SET ASIDE BY THE HON BLE HIGH COURT AND IT H AS BEEN HELD THAT THE CAPITAL GAINS IS NOT CHARGEABLE TO TAX, THE ISSUE OF THE YEAR OF TAXABILITY AT THIS STAGE WOULD ONLY BE AN ACADEMIC ISSUE. THEREFORE, IN OUR OPINION, THIS APPEAL IS INFRUCTUOUS AT THIS STAGE . 6. IN VIEW OF THE SAME, THE ASSES SEE S APPEAL IS DISMISSED AS INFRUCTUOUS. PRON OUNCED IN THE OPEN COURT ON 20 TH OF FEBRUARY , 201 5 . S D/ - S D/ - ( ABRAHAM P GEORGE ) ( SMT. P.MADHAVI DEVI) ACCOUNTANT MEMBER JU DICIAL MEMBER EKSRINIVASULU COPY TO: 1. APPELLANT 2. RESPON DENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE T RIBUNAL BANGALORE