ASST CIT 25(2), MUMBAI V. SAGAR CONSTRUCTION, MUMBAI

ITA 2561/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1866 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2016
• Appeal Filed By: Department
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 16-04-2014
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, JUDICIAL MEMBER I.T.A. NO.2561/M/2014 (ASSESSMENT YEAR: 2009 - 2010) ACIT - 25(2), MUMBAI. / VS. SAGAR CONSTRUCTION, C - 402, GOKUL DIVINE, IRLA, S V ROAD, VILE PARLE (W), MUMBAI - 400 056. ./ PAN : AAGFS8539N ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI AKHILENDRA YADAV, DR / RESPONDENT BY : NONE / DATE OF HEARING : 09.11.2016 / DATE OF PRONOUNCEMENT : 18 .11.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 16.4.2014 IS AGAINST THE ORDER OF THE CIT (A) - 35, MUMBAI DATED 7.1.2014 FOR THE ASSESSMENT 2009 - 2010. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - ' 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN HOLDING THE INCOME OF THE ASSESSEE FROM SHARE TRANSACTION AS PROFIT FROM CAPITAL GAIN AND NOT AS BUSINESS INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) IS NOT JUSTIFI ED IN FOLLOWING THE DECISION OF THE HONBLE ITAT IN THE ASSESSEES OWN CASE FOR EARLIER YEARS WHERE THE FACTS AND CIRCUMSTANCES ARE DIFFERENT FROM THE FACTS FOR THE AY 2009 - 2010. 2. THE ONLY ISSUE RAISED IN THIS APPEAL RELATES TO THE CIT (A)S DECISION IN FOLLOWING THE DECISION OF THE ITAT IN THE ASSESSEES OWN CASE THE FOR THE EARLIER ASSESSMENT YEARS IN GRANTING RELIEF TO THE ASSESSEE IN RESPECT OF INCOME EARNED ON SHARE TRANSACTIONS. BRIEF FACTS IN THIS REGARD ARE THAT THE ASSESSEE EARNED INCOME OUT OF THE TRADING IN SHARE TRANSACTIONS AND THE SAME WAS OFFERED AS CAPITAL GAINS. REJECTING THE SAME, AO TREATED THE SAID INCOME AS BUSINESS INCOME. IN THE PROCESS, HE RELIED ON THE CONTENTS OF THE ORDERS OF THE TRIBUNAL FOR THE EARLIER 2 ASSESSMENT YEAR 2 009 - 2010. THE CONTENTS OF PARA 7 OF THE IMPUGNED ORDER ARE RELEVANT IN THIS REGARD. IN THE PROCESS, CIT (A) RELIED HEAVILY ON THE OR DER OF THE ITAT DATED 3.5.2013 FOR THE AY 2008 - 2009 AND GAVE A FINDING THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL A ND THEREFORE, THE RATIO LAID DOWN BY THE COORDINATE BENCH IN THE ASSESSEES OWN CASE IS BINDING. ACCORDINGLY, CIT (A) ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED, WITH THE SAID DECISION OF THE CIT (A), REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. DURING THE PROCEEDINGS BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT ITS CASE. 4. ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED ON THE ORDER OF THE AO. 5. WE HAVE HEARD LD DR FOR THE REVENUE AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES A S WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON PERUSAL OF THE CONTENTS OF PARAS 6 AND 7 OF THE CIT (A), WE FIND, LD DR HAS NOT BROUGHT ANY MATERIAL TO DEMONSTRATE THAT THE FACTS ARE NOT IDENTICAL TO THE CASE DECIDED BY THE TRIBUN AL FOR THE AY 2007 - 2008. THEREFORE, WE ARE OF THE OPINION, THE DECISION OF THE CIT (A) TO RELY ON THE SAID TRIBUNALS DECISION (SUPRA) FOR THE AY 2007 - 08 VIDE ITA NOS. 5595 & 5625/M/2010, DATED 3.5.2013 IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 8 T H NOVEMBER, 2016. S D / - S D / - ( C.N. PRASAD ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 18.11 .2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 3 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI