The ACIT, Circle-4, Ahmedabad V. Hipolin Ltd., Ahmedabad

ITA 2808/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9109 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-12-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 06-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: P M MEHTA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON' BLE SHRI A.N. PAHUJA, A.M. ) I.T.A. NO. 2808/AHD./2008 ASSESSMENT YEAR : 2005-2006 ASSISTANT COMMISSIONER OF INCOME TAX, -VS.- M/ S. HIPOLIN LIMITED, AHMEDABAD CIRCLE-4, AHMEDABAD (PAN : AAACH 3876 J) (APPELLANT) (RESP ONDENT) APPELLANT BY : SHRI R.K. DHANESTA, D .R. RESPONDENT BY : SHRI P.M. MEHTA, A.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER DATED 21.05.2008 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VIII, AHMEDABA D DIRECTING THE ASSESSING OFFICER TO TREAT SHORT-TERM CAPITAL GAIN OF RS.17,35,041/- AND LONG-TERM CAPITAL GAIN OF RS.28,63,080/- AS CAPITAL GAINS AND NOT AS BUSINESS INCOME FOR THE ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED THE FACTS ARE THAT IN THE ASSESSM ENT ORDER FOR THE ASSESSMENT YEAR UNDER APPEAL, THE ASSESSING OFFICER RELYING UPON HIS FIND ING GIVEN IN THE ASSESSMENT YEAR 2004-05 TREATED THE SHORT-TERM CAPITAL GAIN OF RS.17,35,041 /- AND LONG TERM CAPITAL GAIN OF RS.28,63,080/- AS BUSINESS INCOME. ON APPEAL, IN THE IMPUGNED ORDE R, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOLLOWING HIS ORDER FOR THE ASSESSMEN T YEAR 2004-05 DIRECTED THE ASSESSING OFFICER TO ASSESS THE SAME AS CAPITAL GAIN. AGGRIEV ED WITH THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE IS IN APPEAL BEFO RE THE TRIBUNAL. 3. AT THE TIME OF HEARING BEFORE US, BOTH SIDES CON CEDED THAT ITAT, A BENCH, AHMEDABAD IN REVENUES APPEAL FOR THE ASSESSMENT YEAR 2004-05 IN ITA NO. 4259/AHD/2007 VIDE ORDER DATED 04.09.2009 UPHELD THE ORDER OF LEARNED COMMIS SIONER OF INCOME TAX (APPEALS), WHICH HAS BEEN RELIED BY THE LEARNED COMMISSIONER OF INCO ME TAX (APPEALS) FOR ALLOWING RELIEF TO THE ASSESSEE IN THE ASSESSMENT YEAR UNDER APPEAL. THUS BOTH SIDES CONCEDED THAT THE CONTROVERSY INVOLVED IN THIS GROUND OF APPEAL IS SQUARELY COVER ED IN FAVOUR OF THE ASSESSEE BY THE DECISION 2 ITA NO. 2808-AHD-2008 DATED 04.09.2009 OF ITAT, A BENCH, AHMEDABAD IN A SSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 IN ITA NO. 4259/AHD/2007. 4. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE CONTROVERSY INVOLVED IN THIS GROUND OF A PPEAL IS SQUARELY COVERED BY THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 (SUPRA). RESPECTFULLY FOLLOWING THE SAME, WE INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WHEREBY HE DIRECTED THE ASSESSING OFFICER TO TREAT THE SHORT-TERM CAPITAL GAIN OF RS.17,35,041/- AND LONG-TERM CAPITAL GAIN OF RS.28,63,080/- AS CA PITAL GAINS AND NOT AS BUSINESS INCOME. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 28.12.20 10. SD/- SD/- (A.N. PAHUJA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28 / 12 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, (4) CIT CONCERNED, (5) D.R. , ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGIS TRAR, ITAT, AHMEDABAD LAHA/SR.P.S.