CARMONA INVESTMENT & FINANCE P.LTD, MUMBAI V. DCIT CIR 2(1), MUMBAI

ITA 272/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1517 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 10-08-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 10-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTALDR
• Keywords: Business income; Opportunity of being heard
• Section: 14A

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, C MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.272/MUM/2014 ASSESSMENT YEAR: 2010-11 M/S CARMONA INVESTMENT & FINANCE PVT. LTD. K.K. CHAMBERS, 2 ND FLOOR, SIR P.T. ROAD, FORT, MUMBAI-400001 / VS. DCIT, CIRCLE-2(1), MUMBAI ( ! ' /ASSESSEE) ( # / REVENUE) PAN. NO.AAACC4391B #$ % ' & / DATE OF HEARING : 07/12/2016 % ' & / DATE OF ORDER: 21/12/2016 ! ' ! / ASSESSEE BY SHRI SATISH MODY # ! / REVENUE BY SHRI RAJAT MITTAL-DR ITA NO. 272/MUM/2014 M/S CARMONA INVESTMENT & FINANCE PVT. LTD. 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 21/10/2013 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ASSESSEE HAS FILED CONCISE GROUNDS, WH EREIN, BROADLY TWO GROUNDS HAVE BEEN RAISED. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI SATISH MODY, DID NOT PRESS GROUND NO.2 WITH RE SPECT TO DISALLOWING A SUM OF RS.1,67,79,848/- AS PER SEC TION 14A OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE AC T) R.W.R. 8D OF THE RULES. THE LD. DR, SHRI RAJAT MITTAL, HAD NO OBJECTION TO THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE. CONSIDERING THE REQUEST OF THE ASSESSEE, GROUND NO. 2 IS DISMISSED AS NOT PRESSED. 3. SO FAR AS, CONFIRMING THE STAND OF THE ASSESSIN G OFFICER ASSESSING THE SHORT TERM CAPITAL GAIN OF RS.2,59,27,004/- AS BUSINESS INCOME IS CONCERNED, I T WAS CONTENDED THAT WHILE ASSESSING THE SAID INCOME UNDE R HEAD BUSINESS INCOME, THE LD. ASSESSING OFFICER COULD NO T PROVIDE THE CONSEQUENT BENEFIT VALUING THE STOCK IN TRADE AT MARKET VALUE AT THE END OF THE YEAR AND ALSO THE BE NEFIT OF SECURITY TRANSACTION TAX. IT WAS PLEADED THAT THE L D. ASSESSING OFFICER MAY BE DIRECTED TO GRANT CONSEQUE NTIAL BENEFIT TO THE ASSESSEE. THE LD. DR THOUGH DEFENDED THE ADDITION MADE BY THE LD. ASSESSING OFFICER BUT HAD NO OBJECTION IF THE MATTER MAY BE RELOOKED ON MERIT. ITA NO. 272/MUM/2014 M/S CARMONA INVESTMENT & FINANCE PVT. LTD. 3 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. CONSIDERI NG THE SUBMISSIONS FROM BOTH SIDES AND CBDT CIRCULAR NO.4/2007 DATED 15/06/2007, WE DIRECT THE LD. ASSES SING OFFICER TO EXAMINE THE FACTUAL MATRIX WITH RESPECT TO VOLUME, FREQUENCY, NATURE OF FUNDS USED, PURPOSE OF INVESTMENT IN CAPITAL GAINS AND DECIDE IN THE LIGHT OF THE DECISION FROM HON'BLE APEX COURT/HON'BLE BOMBAY HIG H COURT IN GOPAL PUROHIT 336 ITR 287(SC) AND SURESH R . SHAH 76 DTR 32 (BOM.) ALONG WITH OTHER RELEVANT CAS E LAWS. NEEDLESS TO MENTION HERE THAT THE ASSESSEE B E PROVIDED DUE OPPORTUNITY OF BEING HEARD. THE ASSESS EE IS AT LIBERTY TO FURNISH NECESSARY EVIDENCE, IF ANY, IN S UPPORT OF ITS CLAIM. THUS, THIS GROUND IS REMANDED BACK TO TH E FILE OF THE LD. ASSESSING OFFICER TO MAKE NECESSARY ENQUIRY AND DECIDE IN ACCORDANCE WITH LAW, THUS, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 07/12/2016. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER $ MUMBAI; ( DATED : 21/12/2016 F{X~{T? P.S / /. .. ITA NO. 272/MUM/2014 M/S CARMONA INVESTMENT & FINANCE PVT. LTD. 4 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1' ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1' / CIT(A)- , MUMBAI, 5. 3#4 .' , 0 *+& * 5 , $ / DR, ITAT, MUMBAI 6. 6 7$ / GUARD FILE. ! / BY ORDER, /3+' .' //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI