HOMI K. BHABHA, MUMBAI V. ITO (I T) 3(1), MUMBAI

ITA 2628/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55572 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 20-09-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 06-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Diversion of income; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI V.DURGA RAO, JM ITA NO.2628/MUM/2010 : ASST.YEAR 2007-2008 SHRI HOMI K.BHABHA 49 CUFFE PARADE COLABA, MUMBAI 400 005. PAN : AACPB8660M. VS. THE INCOME TAX OFFICER (INTERNATIONAL TAXATION) 3(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NITESH JOSHI RESPONDENT BY : SHRI V.V.SHASTRI DATE OF HEARING : 22.09.2011 DATE OF PRONOUNCEMENT : .09.2011 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 26.02.2010 IN RELATION TO THE ASSESSMENT YEAR 2007-2008. 2. INITIALLY THE ASSESSEE RAISED A SOLITARY GROUND CHALLENGING THE IMPUGNED ORDER IN NOT ALLOWING DEDUCTION OF EXPENSES INCURRE D IN CONNECTION WITH THE EARNING OF SHORT TERM CAPITAL GAIN. SUBSEQUENTLY RE VISED GROUNDS WERE FILED READING AS UNDER:- THE LEARNED COMM. OF INCOME TAX (APPEALS) 10, MU MBAI HAS ERRED:- 1. IN NOT ALLOWING THE APPELLANT A DEDUCTION FOR EXPENSES INCURRED IN CONNECTION WITH EARNING OF SHORT TERM CAPITAL GAINS . HE ERRED IN NOT APPRECIATING THE NATURE OF THESE EXPENSES. 2. IN NOT APPRECIATING THAT THE FEES SO INCURRED W ERE A DIVERSION OF INCOME BY OVERRIDING TITLE AND HENCE OUT TO HAVE BEEN CONSIDE RED WHILE COMPUTING INCOME. ITA NO 2628/MUM/2010 SHRI HOMI K.BHABHA. 2 3. IN NOT APPRECIATING THAT THE FULL VALUE OF CONS IDERATION RECEIVED HAD TO BE COMPUTED AFTER DEDUCTING THE FEES WHICH HAD BEEN IN CURRED AND PAID. 4. IN NOT ADJUDICATING THAT THE FEES PAID WERE TO BE ADDED TO THE COST OF ACQUISITION / IMPROVEMENT OF ASSETS. 3. THE LEARNED A.R. SUBMITTED THAT THE GROUND TAKEN IN THE ORIGINAL MEMO OF APPEAL HAS BEEN REPEATED AS SUCH AS REVISED GROUND NO.1 AND THE GROUND NOS. 2 TO 4 ARE ADDITIONAL GROUNDS WHICH ARISE OUT OF AN ARTICU LATION OF GROUND NO.1. NO SERIOUS OBJECTION WAS RAISED BY THE LEARNED DEPARTMENTAL RE PRESENTATIVE AGAINST THE ADMISSION OF ADDITIONAL GROUNDS. WE, THEREFORE, ADM IT THESE GROUNDS AND TAKE UP THE APPEAL FOR HEARING. 4. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS A ND CIRCUMSTANCES OF ASSESSMENT YEAR 2007-2008 ARE MUTATIS MUTANDIS SIMILAR TO THOSE OF ASSESSMENT YEAR 2006-2007, WHICH WAS ARGUED SIMULTANEOUSLY BY BOTH SIDES. WE HAVE PASSED A SEPARATE ORDER FOR THE A.Y. 2006-07 DISMISSING T HE APPEAL OF THE ASSESSSEE. FOLLOWING THE VIEW TAKEN IN THE ABOVE REFERRED YEA R, WE UPHOLD THE IMPUGNED ORDER FOR THIS YEAR AS WELL. 5. IN THE RESULT, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF SEPTEMBER, 2011. SD/- SD/- (V.DURGA RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 28 TH SEPTEMBER, 2011. DEVDAS* ITA NO 2628/MUM/2010 SHRI HOMI K.BHABHA. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - X, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.