The ACIT, B.K. Circle, Palanpur V. Shri Pravinchandra S.Sheth(HUF), Surat

ITA 1603/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9890 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 05-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Business income; Tax effect

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.1603/AHD/2011 WITH CO NO.164/AHD/2011 /BLOCK ASSTT. YEAR: 2008-2009 ACIT, B.K. CIRCLE PALANPUR. VS SHRI PRAVINCHDNRA SEVANTILAL SHET (HUF) 103, DIAMODN TRADE CENTRE DALAGHIYA MAHOLLO, SURAT. PAN : AAMHS 4741 J %& / (APPELLANT) '( %& / (RESPONDENT) REVENUE BY : SMT.SONIA KUMAR, SR.DR ASSESSEE BY : NONE / DATE OF HEARING : 04/01/2016 / DATE OF PRONOUNCEMENT: 05/01/2016 )*/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LD.COMMISSIONER INCOME-TAX (APPEALS)-XX, AHMEDABAD DATED 11.4.2011 PASSED FOR THE ASSTT.YEAR 2008-09. ITA NO.1603/AHD/2011 WITH CO 2 2. ON RECEIPT OF NOTICE IN THE REVENUES APPEAL, TH E ASSESSEE HAS FILED CO BEARING NO.164/AHD/2011. THE ASSESSEE HAS FILED HI S RETURN OF INCOME ON 29.12.2008 SHOWING TOTAL SHORT TERM CAPITAL OF RS.1 8,83,800/-. THE LD.AO HAS ASSESSED THE INCOME OF THE ASSESSEE AT RS.19,14,004 /-. HE ASSESSED INCOME FROM SALE OF SHARES AS BUSINESS INCOME AS AGAINST S HORT TERM CAPITAL GAIN DISCLOSED BY THE ASSESSEE. 3. ON APPEAL, THE LD.CIT(A) HAS TREATED THE INCOME FROM SALE OF SHARES WHICH WERE HELD MORE THAN 30 DAYS AS SHORT TERM CAP ITAL GAIN AND SHARES WHICH WERE HELD LESS THAN 30 DAYS, THE INCOME RESUL TED ON TRANSFER OF SUCH SHARES HAS BEEN HELD AS BUSINESS INCOME. 4. IN THE PRESENT CASE, THE TAX EFFECT BY VIRTUE OF DIRECTIONS OF THE LD.CIT(A) FOR CALCULATING THE BUSINESS INCOME AS WE LL AS SHORT TERM CAPITAL GAIN IS CONCERNED, IT IS LESS THAN RS.10 LAKHS. TH E PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS P ROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING TH E APPEAL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-V ERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MO RE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. I N VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 5. AS FAR AS CO IS CONCERNED, THE LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT SINCE THE APPEAL OF THE REVENUE IS DEEMED TO H AVE NOT BEEN MAINTAINABLE, CONSEQUENTLY, THE CO WOULD NOT SURVIVE. IN CASE AN Y TAX LIABILITY LIKELY TO BE ARISEN UPON THE ASSESSEE, THEN IT WILL FILE A PROPE R APPEAL WITH AN APPLICATION ITA NO.1603/AHD/2011 WITH CO 3 FOR CONDONATION OF DELAY. IN THE PRESENT FORM, THE CO IS NOT MAINTAINABLE. IT IS DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 5 TH JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 05/01/2016