USHA MAYUR THAKKAR, MUMBAI V. ASST CIT CEN CIR 18 & 19, MUMBAI

ITA 2013/MUM/2012

• Counselvise Citation: 201319914 RSA 2012
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 27-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: N R RAO
• Keywords: Sale consideration of property below Jantri Value

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI . .. . . . . . ! ! ! ! , ,, , ' #$ ' #$ ' #$ ' #$ , , ,, , . .. . . . . . $ $ $ $ , % #$ % #$ % #$ % #$ & & & & BEFORE SHRI R.K.GUPTA JM AND SHRI R.S.SYAL, AM ITA NO. 2013 /MUM/2012 A.Y. 2008-09 MRS. USHA MAYUR THAKKAR 21, KSHITIJ HILL ROAD, OPP. ST. ANDREWS CHURCH, BANDRA(W), MUMBAI-400050. PAN-ADLPT0750C ACIT CENTRAL CIRCLE-18 & 19 C.G.O. BUILDING, 4 TH FLOOR, M.K.ROAD, MUMBAI-400020 ( '( / // / ASSESSEE) * * * * / VS. ( +,'(/ RESPONDENT) '( - -- - . . . . / ASSESSEE BY : SHRI N.R.RAO +,'( - . - . - . - . / REVENUE BY : SHRI ANURAG SHRIVASTAVA * - /% / / / / DATE OF HEARING :05.08.2013 012 - /% / DATE OF PRONOUNCEMENT : 07 .08.2013 #3 #3 #3 #3 / / / / O R D E R PER R.S.SYAL ( AM) : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE LD. CIT(A) ON 25.01.2012 IN RELATION TO THE ASSESSMENT YEAR 2008-09. ITA NO. 2013/MUM/2012 MRS. USHA MAYUR THAKKAR . 2 2. FIRST FOUR GROUNDS WERE NOT PRESSED BY THE LD. A R. THE SAME, THEREFORE, STAND DISMISSED. 3. GROUND NO. 5 IS AGAINST THE CONFIRMATION OF DISA LLOWANCE OF SHORT TERM LOSS OF RS.204733/- CLAIMED BY THE AS SESSEE THROUGH HER PROPRIETORSHIP CONCERN, M/S. SUNIL CHEM ICAL INDUSTRIES. GROUND NO. 6 IS AGAINST THE CONFIRMATIO N OF DISALLOWANCE OF LONG TERM CAPITAL GAIN OF RS.8,15,6 00 CLAIMED BY THE ASSESSEE THROUGH THE PROPRIETORSHIP CONCERN, M/S. SUNIL CHEMICAL INDUSTRIES BY TREATING IT AS B USINESS INCOME. 4. THE FACTS APROPOS THESE GROUNDS ARE THAT THE ASS ESSEE WAS EARLIER A PARTNER IN M/S. SUNIL CHEMICAL INDUSTRIES WITH HER HUSBAND, WHO EXPIRED IN 2004. SUCH CONCERN, WHEN CA ME IN THE HANDS OF THE ASSESSEE AS A PROPRIETORSHIP CONCERN, STOPPED ITS EARLIER BUSINESS OF MANUFACTURING CHEMICALS. CERTAI N SHARES WERE HELD BY M/S SUNIL CHEMICAL INDUSTRIES, PARTNER SHIP FIRM, AS `INVESTMENT. THESE SHARES CAME TO BE SOLD BY T HE ASSESSEE IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEA R UNDER CONSIDERATION RESULTING INTO GAIN OF RS.8,15,600/-. ADMITTEDLY, THESE SHARE WERE HELD AS `INVESTMENT IN 2004 IN TH E HANDS OF THE PARTNERSHIP FIRM, M/S SUNIL CHEMICAL INDUSTRIES . IT IS AFTER A GAP OF AROUND THREE-FOUR YEARS THAT THE SHARES, HEL D IN SUCH ERSTWHILE FIRM, WERE SOLD BY THE ASSESSEE RESULTING INTO GAIN OF ITA NO. 2013/MUM/2012 MRS. USHA MAYUR THAKKAR . 3 RS.815 LAKHS. IN OUR CONSIDERED OPINION, THE SHARE S HELD BY M/S. SUNIL CHEMICAL INDUSTRIES AS `INVESTMENT AND THEN RETAINED BY THE ASSESSEE IN THE SAME CAPACITY FOR A PERIOD OF MORE THAN THREE YEARS, CANNOT BE SAID TO HAVE ASSUM ED THE CHARACTER OF `STOCK IN TRADE WITHOUT ANY THING POS ITIVE DONE BY THE ASSESSEE IN THIS REGARD. WE THEREFORE, HOLD TH AT THE PROFIT REALIZED ON THE TRANSFER OF SUCH SHARES CANNOT BE T REATED AS ANYTHING OTHER THAN LONG TERM CAPITAL GAIN. AS FAR AS THE SECOND AMOUNT OF LOSS OF RS.204733 IS CONCERNED, IT IS OBSERVED THAT THE ASSESSEE, APART FROM HOLDING THE ABOVE SHA RES AS INVESTMENT, WAS ALSO ENGAGED IN THE BUSINESS OF PUR CHASE AND SALE OF SHARES. THE SAID AMOUNT OF RS.2.04 LAKHS WA S SUFFERED AS LOSS FROM THE TRANSFER OF SHARES WHICH WERE PURCHAS ED BY THE ASSESSEE AROUND SEVEN MONTHS BACK. NO MATERIAL HAS BEEN PLACED ON RECORD TO DEMONSTRATE THAT THE SHARES RES ULTING INTO SUCH LOSS WERE HELD AS INVESTMENT, WHEN SEEN IN THE TOTALITY OF FACTS THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF SHARES WHICH RESULTED INTO INCOME OF RS .27.27LAKH. WE, THEREFORE, HOLD THAT THE LOSS OF RS.2.04 LAKH D ESERVES TO BE CONSIDERED AS `BUSINESS LOSS AS HELD BY THE AUTHOR ITIES BELOW. RESULTANTLY, THE GROUND NO.5 IS DISMISSED AND THE G ROUND NO. 6 IS ALLOWED. 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ITA NO. 2013/MUM/2012 MRS. USHA MAYUR THAKKAR . 4 ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH AUGUST 2013. #3 - 012 % 4 5#*6 7 TH AUGUST .2013 1 - SD/- SD/- (R.K.GUPTA) (R.S.SYAL) ' #$ ' #$ ' #$ ' #$ / JUDICIAL MEMBER % #$ % #$ % #$ % #$ / ACCOUNTANT MEMBER / MUMBAI ; 5#* / DATED : 7 TH AUGUST , 2013. SHEKHAR. P.S. #3 - +'/78 982/ #3 - +'/78 982/ #3 - +'/78 982/ #3 - +'/78 982// COPY OF THE ORDER FORWARDED TO : 1. '( / THE APPELLANT 2. +,'( / THE RESPONDENT. 3. : () / THE CIT , MUMBAI. 4. : / CIT(A)- , MUMBAI 5. 8= +'/'* , , / DR, ITAT, MUMBAI 6. > / GUARD FILE. #3* #3* #3* #3* / BY ORDER, ,8/ +'/ //TRUE COPY// ? ? ? ?/ // /@ A @ A @ A @ A ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUM