DCIT, Circle - 11, Kolkata, Kolkata V. M/s. Century Plyboard (I) Ltd., Kolkata

ITA 1728/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54458 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-08-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 06-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MALAKAR
• Assessee Lawyers: R KUMAR
• Keywords: Business income; Capital Gains
• Section: 143(3); 260A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND , ! . '# . ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SHR I C. D. RAO, AM] $ $ $ $ / I.T.A NO. 1728/KOL/2010 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2008-09 DEPUTY COMMISSIONER OF INCOME TAX, VS. M/S. CENTU RY PLYBOARD (I) LTD., CIRCLE-11, KOLKATA. (PAN-AABCC 1682 J) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) FOR THE APPELLANT: SHRI S. K. MALAKAR FOR THE RESPONDENT: SHRI R. KUMAR . / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XII, KOLKATA IN APPEAL NO.23/XII/CIR-11/10-11 DATED 29.06.2010. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-11, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008-09 VIDE HIS ORDER DATED 31.03. 2010. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN TREATING THE INCOME DECLARED BY ASSESSEE AS LONG TERM CAPITAL G AINS (LTCG) AND SHORT TERM CAPITAL GAINS (STCG) ON SHARE TRANSACTIONS AS AGAINST THE O RDER OF ASSESSING OFFICER TREATING THE SAME AS INCOME FROM BUSINESS. FOR THIS, REVENUE HAS RAI SED FOLLOWING GROUND NO.1: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A) HAS ERRED IN TREATING THE INCOME OF RS.40,64,161/- AS LONG TERM CAPITAL GAIN AND RS.5,26,302/- AS SHORT TERM CAPITAL GAIN INSTEAD OF TREATING IT AS INCOME FROM BUSINESS. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSING OFFICER NOTED THAT ASSESSEE COMPANY CARRIED OUT NUMEROUS TRANSACTION IN SHARES IN A SYSTEMATIC AND ORGANIZED MANNER AND HENCE, HE TREATED THE LTCG AND STCG EARNED BY ASSESSEE AND DISCLOSED AS IT IS, AS INCOM E FROM BUSINESS. ASSESSING OFFICER NOTED THAT IN ASSESSMENT YEAR 2005-06 AND 2008-09 FACTS A RE EXACTLY IDENTICAL WHICH IS AS UNDER: THE ASSESSEES SUBMISSIONS WERE CAREFULLY CONSIDER ED. IT IS NOTED THAT IT HAS BEEN SUBMITTED THAT FACTS OF A.Y. 2005-06 AND 2008-09 AR E THE SAME. IT IS ALSO NOTED THAT FOR ASSESSEES CASE IN A.Y. 2005-06, THE CIT(A) HAD UP HELD THE CONTENTION OF THE A.O. AND EVEN THE ITAT HAD HELD SHORT TERM CAPITAL GAIN TO B E BUSINESS INCOME. MOREOVER, IN APPEAL IS FILED U/S. 260A AGAINST THE HONBLE ITAT S DECISION. THEREFORE TO KEEP THE ISSUE ALIVE, THE SAME VIEWPOINTS AS IN A.Y. 2005-06 FOR THE SAME REASONS AS MENTIONED IN ASSESSMENT ORDERS FOR A.Y. 2005-06, A.Y. 2006-07 AN D A.Y 2007-08 IS TAKEN FOR THIS YEAR TOO. 2 ITA 1728/K/2010 M/S.CENTURY PLYBOARD (I) LTD. A.Y .08-09 CIT(A) ACCEPTED INCOME DISCLOSED UNDER THE HEAD LTC G AND STCG AS IT IS, BY RELYING ON JUDGMENT OF KOLKATA TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005-06, 2006-07 AND 2007-08 AS UNDER: 3.3. THE APPELLANT HAD SHOWN GAINS FROM SHARE/UNIT TRANSACTIONS AS LTCG AND STCG. THE A.O. HOWEVER, BASED ON EARLIER YEARS ASSESSMENT S AND TO KEEP THE ISSUE ALIVE TREATED THE LTCG AND STCG AS BUSINESS INCOME ON THE GROUND THAT THE APPELLANT HAD FREQUENT AND NUMEROUS TRANSACTIONS WITH VOLUMES AND CARRIED OUT SHARE TRANSACTIONS IN A SYSTEMATIC AND ORGANIZED MANNER. THE A.O. ALSO AGR EED THAT IDENTICAL ISSUE AND SAME FACTS ARE INVOLVED THIS YEAR ALSO. HOWEVER, THIS YEAR THERE IS ISSUE ON SHORT TERM CAPITAL GAINS. RESPECTFULLY FOLLOWING THE HONBLE KOLKATA TRIBUNA L ORDER FOR A.Y. 2005-06 (ITA NO.552(KOL) OF 2008) AND MY ORDER FOR A.Y. 2005-06 AND 2006-07 IN THE APPELLANTS OWN CASE, I DIRECT THE A.O. TO ALLOW THE CLAIM OF THE A PPELLANT TREATING THE GAINS FROM SHARE TRANSACTIONS AS LTCG INSTEAD OF BUSINESS INCOME. I N MY EARLIER ORDER FOR A.Y. 2006-07 I HAVE ALSO ALLOWED THE CLAIM OF THE APPELLANT IN RES PECT OF STCG. FOLLOWING MY OWN ORDER ON IDENTICAL ISSUE AND FACTS, I DIRECT THE A.O. TO ALLOW THE APPELLANTS CLAIM IN RESPECT OF BOTH LTCG AND STCG. THE APPELLANTS GROUND IS ALLO WED. WE FIND THAT THE LOWER AUTHORITIES HAVE REACHED A C ONCURRENT FINDING THAT FACTS AND CIRCUMSTANCES ARE EXACTLY IDENTICAL, TAKING THE SIT UATION AS IT IS, AS THE REVENUE NOW BEFORE US COULD NOT POINT OUT ANY DIFFERENCE IN THE FACTS, WE ARE TAKING THIS AS COVERED ISSUE IN FAVOUR OF THE ASSESSEE. REVENUES APPEAL IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 5. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . '# '#'# '# . ! , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( #! #! #! #!) )) ) DATED 18 TH DAY OF AUGUST, 2011 /0 %12 3 JD.(SR.P.S.) . 4 ,5 6 5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT DCIT, CIRCLE-11, KOLKATA. 2 ,-*+ / RESPONDENT, M/S. CENTURY PLYBOARD (I) LTD., 6, LY ONS RANGE, KOLKTA- 700 001. 3 . .% ( )/ THE CIT(A), KOLKATA 4. .% / CIT, KOLKATA 5 . >? ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, .%@/ BY ORDER, 2 /ASSTT. REGISTRAR .