The ACIT, Circle-5, Baroda V. Shri Navin K.Soni, Baroda

ITA 2236/AHD/2012

• Counselvise Citation: 223620514 RSA 2012
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 05-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH SR DR
• Keywords: Business income; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2236/AHD/2012 ASSESSMENT YEAR:2005-06 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5, 5 TH FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA 390007 V/S . SHRI NAVIN K SONI, PROP. NAVIN JEWELLERS, SB-21, WINDSOR PLAZA, R.C.DUTT ROAD, ALKAPURI, BARODA 390007 [ PAN NO.AFMPS 4633H ] / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI D. K. SINGH, SR-DR /BY RESPONDENT NONE /DATE OF HEARING 04-12-2012 /DATE OF PRONOUNCEMENT 07-12-2012 / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, BARODA DATE D 20-07-2012 FOR THE ASSESSMENT YEAR 2005-06. THE REVENUE HAS RAISED THE SOLITARY GROUND, WHICH READS AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN LAW AND IN FACTS IN DIRECTING TO TR EAT THE INCOME FROM DELIVERY BASED TRANSACTIONS IN SHARES AS SHORT TERM CAPITAL GAINS INSTEAD OF BUSINESS INCOME AS RIGHTLY ASSESSED BY THE AO IN VIEW OF THE NATURE OF TRANSACTIONS. LD. CIT(A) FAILED TO APPRECIATE THAT NATURE OF TRAN SACTIONS TO BE BUSINESS OR INVESTMENT IS GOVERNED BY VARIOUS FACTORS AS LAID D OWN IN JUDICIAL DECISIONS INCLUDING IN THE CASE OF SARNATH INFRASTRUCTURE (P) LTD. (2009) TTJ 216 (LUCKNOW) & NOT MERELY ON THE BASIS OF HOLDING PERI OD OF SHARES, WHICH IN ANY CASE WAS LESS THAN ONE YEAR FOR ALL THE TRANSACTION S IN QUESTION. ITA NO.2236/AHD/2012 A.Y. 2005-06 ACIT CIR-5 BRD V. SH NAVIN K SONI PAGE 2 2. NONE APPEARED ON BEHALF OF ASSESSEE, HOWEVER, TH E NOTICE OF HEARING IS DULY SERVED UPON THE ASSESSEE AS THE ACKNOWLEDGEMEN T DUE IS ON RECORD. THEREFORE, THE APPEAL IS TAKEN UP FOR HEARING IN TH E ABSENCE OF ASSESSEE. 3. AT THE OUTSET, IT IS FOUND THAT ASSESSING OFFICE R HAS MADE ADDITION OF RS.6,12,355/- + ADDITION OF RS.1,03,763/- TOTALING TO RS.7,16,118/-. THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE AS THE TOTAL TAX EFFECT IS LOWER THAN PECUNIARY LIMIT OF RS.3 LAKHS IN VIEW OF THE CIRCULAR NO.3/2011 DATED 09-02- 2011 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (C BDT). 4. WE HAVE HEARD THE LD. SR-DR AND PERUSED THE MATE RIALS AVAILABLE ON RECORD. WE FIND THAT PRESENT CASE IS NOT MAINTAINAB LE ON THE GROUND OF LOW TAX EFFECT, HOWEVER, THE REVENUE IS NOT PRECLUDED FROM RAISING THE SIMILAR GROUND IF THE TAX EFFECT IS HIGH IN ASSESSEES CASE IN ANY OTHER ASSESSMENT YEAR. IN VIEW OF THE ABOVE, THE APPEAL IS DISMISSED AS NOT M AINTAINABLE BEFORE THIS TRIBUNAL. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !' #- 07/12/2012 )*+ , --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '+'-2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. .67 ---2, -2 , )*+ / DR, ITAT, AHMEDABAD 6. 7:; <= / GUARD FILE. BY ORDER/ , /TRUE COPY/ >/) '? -2 , )*+ , ITA NO.2236/AHD/2012 A.Y. 2005-06 ACIT CIR-5 BRD V. SH NAVIN K SONI PAGE 3 STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 04/12 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 04/12 4) DATE OF CORRECTION - - 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 06/12 7) ORDER UPLOADED ON 07/12 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 07/12