ACIT 17(1), MUMBAI V. MEENA PANKAJ TANNA, MUMBAI

ITA 1604/MUM/2009

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88399 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-01-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 09-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN V P SR
• Keywords: Business income; Tax effect

Judgement Text

, ( ) IN THE INCOME TAX APPELLATE TRIBUNAL B B ENCH, MUMBAI . . , BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./ I.T.A. NO.1604/MUM/2009 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2005-06 ) ACIT-17(1) PIRAMAL CHAMBERS PAREL MUMBAI-400 012. / VS. SMT. MEENA PANKAJ TANNA 204-C, DR. AMBEDKAR ROAD, RATTY LODGE, GROUND FLOOR, DADAR TT MUMBAI-400 014. ./ ./ PAN/GIR NO. : AACPT 4113 F ( / APPELLANT ) .. ( / RESPONDENT ) CROSS OBJECTION NO.185/MUM/2009 ARISING OUT OF ./ I.T.A. NO.1604/MUM/2009 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2005-06 ) SMT. MEENA PANKAJ TANNA 204-C, DR. AMBEDKAR ROAD, RATTY LODGE, GROUND FLOOR, DADAR TT MUMBAI-400 014. SMT. / VS. ACIT-17(1) PIRAMAL CHAMBERS PAREL MUMBAI-400 012. ./ ./ PAN/GIR NO. : AACPT 4113 F CROSS OBJECTOR .. ( / RESPONDENT ) / APPELLANT BY : SHRI ASGHAR ZAIN V.P. SR.AR / RESPONDENT BY : SHRI NISHIT GANDHI / DATE OF HEARING: 14/01 /2015 / DATE OF PRONOUNCEMENT : 11/02/2015 $ / O R D E R PER SANJAY GARG, JUDICIAL MEMBER: ITA NO. 1604/MUM/09 2 THE ABOVE TITLED APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE HAVE BEEN DIRECTED AGAINST THE ORDER OF CIT(A) DATED 29/12/2 008 AND THE SAME ARE DISPOSED OF WITH THIS COMMON ORDER. 2. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO. 1604/MUM/2009 2.1 THE REVENUE THROUGH ITS GROUNDS OF APPEAL HAS AGITATED THE ACTION OF THE CIT(A) IN TREATING THE INCOME FROM SHARES AS CAPITAL GAINS AS AGAINST BUSINESS INCOME TREATED BY THE AO. 2.2 AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HA S STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4 LAKHS WHICH IS BELOW THE PRESCRIB ED LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL AS PER THE CBDT CIRCULAR NO.5 DATED 10.07. 14. THE LD. D.R. HAS FAIRLY ADMITTED THAT THE TAX EFFECT IN THIS APPEAL IS BELOW THE PRE SCRIBED LIMIT OF RS.4 LAKHS. 3. SINCE THE TAX EFFECT IN THE PRESENT APPEAL IS B ELOW PRESCRIBED LIMIT, THEREFORE, WE ARE OF THE VIEW THAT THE APPEAL OF THE REVENUE IS NOT M AINTAINABLE. THE CENTRAL BOARD OF DIRECT TAXES (CBDT) VIDE INSTRUCTION NO.5 DATED 10.07.2014 HAS PRESCRIBED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT WHERE TAX EFFEC T IS LESS THAN RS.4 LAKHS. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF 'MADHUKAR INAMDAR' - 185 TAXMANN. 101 HAS HELD THAT CBDT CIRCULAR IS APPLICABLE WHERE THE APPEALS ARE P ENDING AND NOT ONLY TO THE APPEALS WHICH ARE TO BE FILED AFTER THE CIRCULAR WAS ISSUED. SI MILAR VIEW HAS BEEN ADOPTED BY THE CO- ORDINATE BENCHES OF THIS TRIBUNAL IN THE CASE OF 'ITO VS. SURENDERMAL R. LODHA' IN ITA NO.1628/MUM/11 FOR THE ASSESSMENT YEAR 2004-05 DECIDED ON 25.08.14 AND FURTHER IN THE CASE OF 'ITO VS. SHRI KULDEEP GANESH HAKE' IN ITA NO.4284/M /2013 FOR THE ASSESSMENT YEAR 2008-09 DECIDED ON 17.09.2014 . IN VIEW OF THE AFOREMENTIONED INSTRUCTIONS OF TH E CBDT AND THE ABOVE JUDICIAL DECISIONS ON THE ISSUE, SIN CE THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS BELOW THE PRESCRIBED LIMIT, THEREFORE, T HE PRESENT APPEAL OF THE REVENUE IS NOT MAINTAINABLE, CONSEQUENTLY, THE SAME IS HEREBY DISM ISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED AS NOT MAINTAINABLE. 5. CROSS OBJECTION NO. 185/MUM/2009 :- 5.1 THE ASSESSEE IN ITS CROSS OBJECTIONS HAS AGITA TED THE ACTION OF THE CIT(A) IN TREATING THE INCOME FROM SALE OF SHARES WHICH WERE HELD BY T HE ASSESSEE FOR LESS THAN 45 DAYS AS BUSINESS INCOME INSTEAD OF SHORT TERM CAPITAL GAIN AS CLAIMED BY THE ASSESSEE . ITA NO. 1604/MUM/09 3 5.2 WE HAVE HEARD THE RIVAL CONTENTIONS. WE FIND FR OM THE ORDER OF THE CIT(A), THAT THE LD. CIT(A) AFTER DISCUSSION OF THE OVER ALL FACTS A ND CIRCUMSTANCES OF THE CASE HAS GIVEN A CATEGORICAL FINDING THAT IT HAS BEEN ESTABLISHED WI TH SUFFICIENT EVIDENCE, THAT THE ASSESSEES INTENTION WAS OF INVESTMENT AND NOT IN TRADING IN S HARES. HE, HOWEVER, TREATED THE INCOME FROM SALE OF SHARES WHICH WERE HELD BY THE ASSESSEE FOR LESS THAN 45 DAYS AS BUSINESS INCOME. IN OUR VIEW, ONCE THE LD. CIT(A) HAS HELD THAT THE ASSESSEE WAS AN INVESTOR THEN UNDER SUCH CIRCUMSTANCES A DIFFERENT TREATMENT GIVEN TO THE TR ANSACTION OF SHARES HELD UP TO 45 DAYS CANNOT BE SAID TO BE JUSTIFIED. IT IS THE INTENTION OF THE ASSESSEE WHICH MATTERS AND ONCE SUCH AN INTENTION IS ESTABLISHED, THEN THE ASSESSEE IS TO BE TREATED AS AN INVESTOR. HENCE, WE SET ASIDE THE ORDER OF CIT(A) ON THIS ISSUE AND DIRECT THE AO TO COMPUTE THE INCOME OF THE ASSESSEE UNDER THE HEAD CAPITAL GAINS AS CLAIMED BY THE ASSESSEE. 6. IN THE RESULT, CROSS OBJECTIONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/02 /2015. $ % &# ' (') 11/02/2015 & % SD/- SD/- (B.R. BASKARAN) ( SANJAY GARG ) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; (' DATED 11/02/2015 . ' . ./ JV , SR. PS $ $ $ $ % %% % *+, *+, *+, *+, -,#+ -,#+ -,#+ -,#+ / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. *0./ / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. , 2 *+' , , / DR, ITAT, MUMBAI 6. 3 4 / GUARD FILE. $' $' $' $' / BY ORDER, 0,+ *+ //TRUE COPY// 5 55 5 / 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI.