M/s. Standard Brands Ltd., New Delhi V. ITO, New Delhi

ITA 2207/DEL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97987 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 21-10-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 10-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SU JIT KUAMR
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Business income; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH G NEW DELHI BEFORE : SHRI C.M. GARG , JUDICIAL MEMBER & SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 2207/DEL./2010 ASSTT. YEAR : 2006 - 07 STANDARD BRANDS LTD., VS. INCOME - TAX OFFICER, 6, BABAR LANE, BENGALI MARKET, WARD 9(2), NEW DELHI. NEW DELHI. [PAN:AAECS3200P] (APPELLANT) (RESPONDENT) APPELLANT BY : DR. RAKESH GUPTA, ADVOCATE & SH. SOMIL AGGARWAL, ADVOCATE RESPONDENT BY : SH. SU JIT KUAMR, SR. DR DATE OF HEARING : 21.10.2015 DATE OF PRONOUNCEMENT : 08 .12.2015 ORDER PER L.P. SAHU, ACCOUNTANT MEMBER: EARLIER THIS APPEAL WAS DISPOSED OF BY ITAT BENCH G NEW DELHI VIDE ORDER DATED 12.11.2010, WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED. SUBSEQUENTLY, THE ASSESSEE MOVED AN APPLICATION U/S. 254 OF THE IT ACT , STATING THAT THE TRIBUNAL WHILE DISPOSING OF THE APPEAL HAS OMITTED TO DECIDE THE VITAL ASPECT OF THE CASE RAISED BY WAY OF GROUND NO. 4 AND OTHER GROUNDS THAT THE INCOME OF THE ASSESSEE WAS NOT TO BE ASSESSED AS SHORT TERM CAPITAL GAIN AS THE ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF LAND . ITA NO. 2207/DEL./2010 2 HE, THEREFORE, PRAYED TO RECALL THE ORDER DATED 12.11.2010. ON THIS MISC. APPLICATION, THE ITAT F OUND THAT GROUND NO. 4 RAISED BY THE ASSESSEE ON THIS ASPECT WAS NOT ADJUDICATED IN THAT ORDER AND THEREFORE, VIDE ORDER DATED 25.03.2011, RECALLED THE EARLIER ORDER FOR THE LIMITED PURPOSE TO DECIDE THE GROUND NO.4 RAISED BY ASSESSEE IN APPEAL. BY VIRTUE OF THIS ORDER, THE PRESENT APPEAL HAS AGAIN COME UP FOR HEARING BEFORE US. 2. WE HAVE HEARD THE CONTENTIONS OF BOTH THE PARTIES AND HAVE CAREFULLY GONE THROUGH THE ENTIRE MATERIAL AVAILABLE BEFORE US. A PERUSAL OF THE ORDER PASSED ON MISCELLANEOUS APPLICA TION OF ASSESSEE SHOWS THAT THE EARLIER ORDER OF THE TRIBUNAL DATED 12.11.2010 HAS BEEN RECALLED FOR THE LIMITED PURPOSE FOR ADJUDICATION OF GROUND NO. 4 RAISED BY ASSESSEE. THIS GROUND READS AS UNDER : 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT THERE IS A CAPITAL GAIN EVEN THROUGH THE ASSESSEE IS ENGAGED IN PURCHASE AND SALE OF PROPERTIES AND HENCE, CARRYING ON BUSINESS INCOME. 3. IN VIEW OF THIS GROUND, IT IS SEEN THAT T HE ONLY QUESTION WHICH NEEDS ADJUDICATION IS WHETHER THE INCOME OF THE ASSESSEE UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WAS ASSESSABLE AS SHORT - TERM CAPITAL OR AS BUSINESS INCOME, PARTICULARLY WHEN THE ASSESSEE IS ENGAGED IN THE BUSINESS OF P URCHASE AND SALE OF PROPERTIES/LAND. ON THIS ASPECT, WE FIND THAT THE ASSESSEE HAS ALSO RAISED SUCH GROUNDS BEFORE THE LD. CIT(A) BY WAY OF GROUND NO. 1 (VI)(VII) & ITA NO. 2207/DEL./2010 3 (VII). WE HAVE GONE THROUGH THE IMPUGNED ORDER OF LD. CIT(A) AND WE FIND THAT THE LD. CIT(A ) HAS ALSO NOT DECIDED THIS VITAL ISSUE ANYWHERE IN THE IMPUGNED ORDER NOR IS THERE ANY FINDING TO REBUT THE FACTUAL MATRIX NARRATED IN GROUND NO. 4 BEFORE US. WE, THEREFORE, DEEM IT EXPEDIENT IN THE INTEREST OF JUSTICE TO REMIT THIS ISSUE TO THE FILE OF L D. CIT(A) FIRST TO DECIDE THE ISSUE WHETHER THE INCOME OF THE ASSESSEE MAY BE ASSESSED AS SHORT TERM CAPITAL GAIN PARTICULARLY WHEN THE ASSESSEE S BUSINESS IS OF PURCHASE & SALE OF LAND/PROPERTIES. THE LD. CIT(A) IS DIRECTED TO GIVE CLEAR FINDING ON THIS I SSUE BY WAY OF SPEAKING ORDER AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE MATTER IS RESTORED TO THE FILE OF LD. CIT(A) FOR DECIDING THE SAME IN THE LIGHT OF OBSERVATIONS GIVEN ABOVE. ACCORDINGLY, GROUND NO. 4 IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 08.12.2015 . SD/ - SD/ - ( C.M. GARG ) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 08.12.2015 *AKS/ -