Smt. Surajkanwari Kasat, Surat V. The Dy.CIT.,Circle-2, Surat

ITA 2144/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1037 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 26-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 19-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I S. S. GODARA , JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER SMT. SURAJKANWARI KASAT 3006 - 3007, SHREEJI MARKET, RING ROAD, SURAT PAN: ABMPK5913H (APPELLANT) VS THE DCIT, CIRCLE - 2, SURAT (RESPONDENT) REVENUE BY : S H RI PRASOON KABRA , SR. D . R. ASSESSE E BY: NONE DATE OF HEARING : 26 - 07 - 2 016 DATE OF PRONOUNCEMENT : 27 - 07 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2008 - 09 , AR ISES FROM ORDER OF THE CIT(A) - II, SURAT DATED 04 - 07 - 2013 IN APPEAL NO. CAS - II/164/12 - 13 , IN PROCEEDINGS U NDER SECTION 271(1 ) (C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 2144 / A HD/20 13 A SSESSMENT YEAR 200 8 - 09 I.T.A NO. 2144 /AHD/20 13 A.Y. 2008 - 09 PAGE NO SMT. SURAJKANWA RI KASAT VS. . DCIT 2 2. THE ASSESSEE S SOLE SUBSTANTIVE GROUND ASSAILS CORRECTNESS OF THE LOWER APPEL LATE OR DER CONFIRMATION SECTION 271(1)(C) PENALTY OF RS. 24,73,465/ - IMPOSED BY THE ASSESSING OFFICER IN ORDER DATED 23 - 11 - 2012 TREATING ASSESSEE S LONG AND SHORT TERM CAPITAL GAINS ARISING FROM SALE OF SHARES AS BUSINESS INCOME. A PERUSAL OF THE CASE FIL E REVEALS THAT THE ASSESSING OFFICER FRAMED A REGULAR ASSESSMENT IN THE INSTANT CASE ON 14 - 12 - 2010 ASSESSING THE IMPUGNED CAPITAL GAINS TO THE TUNE OF RS. 2,49,44,656/ - AS BUSINESS INCOME . THE CIT(A) PARTLY ALLOWED ASSESSEE S APPEAL DIRECTING THE ASSESSING OFFICER TO TREAT SHARE PR OFIT S HAVING HOLDING PERIOD OF MORE THAN ONE YEAR TO BE LONG TERM CAPITAL GAINS AND THOSE INVOLVING LESS THAN ONE MONTH PERIOD TO BE TREATED AS BUSINESS INCOME. THE ASSESSEE S SHARE PROFIT IN THE LATTER CATEGORY READ A SUM OF RS. 82,44,882/ - ACCOR DINGLY STOOD TREATED AS BUSINESS INCOME. 3. WE NOW COME TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSING OFFICER VIEWED ASSESSEE S CONDUCT IN DECLARING ABOVE STATED SHORT TERM CAPITAL GAINS AS AN ACT OF FURNISHING INACCURATE PARTICULARS LEADING TO CON CEALMENT OF INCOME. THE CIT(A) CONFIRMS THE SAME. 4. WE HAVE HEARD THE REVENUE. CASE FILE PERUSED. IT TRANSPIRES THAT THAT THE ASSESSEE PREFERRED ITAS 1972 AND 2107/AHD/2012 IN QUANTUM PROCEEDINGS BEFORE THIS TRIBUNAL. A LEARNED CO - ORDINATE BENCH IN I TS ORDER DATED 31 - 05 - 2016 HAS ACCEPTED HER MAIN GROUND I.T.A NO. 2144 /AHD/20 13 A.Y. 2008 - 09 PAGE NO SMT. SURAJKANWA RI KASAT VS. . DCIT 3 SEEKING TO TREAT SHARE PROFITS IN QUESTION AS SHORT TERM CAPITAL GAINS AND NOT BUSINESS INCOME. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THIS FACTUAL POSITION. WE CONCLUDE IN THESE FACTS TH AT THE IMPUGNED PENALTY HAS NO LEGS TO STAND. THE SAME IS DELETED. 5. THIS ASSESSEE S APPEAL SUCCEEDS. ORDER PR ONOUNCED IN THE OPEN C OURT ON 27 - 07 - 201 6 SD/ - SD/ - ( MANISH BORAD ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 27 /07 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,