ACIT, Circle-30, Kolkata, Kolkata V. Sri Anjan Mukherjee, Kolkata

ITA 288/KOL/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3182 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Department
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 11-02-2010
• Court: TRIBUNAL
• Department Lawyers: D K SONOWAL SRDR
• Assessee Lawyers: AVRA MAZUMDER
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.288/KOL/2010 ASSESSMENT YEAR:2005-06 ACIT, CIRCLE-30, 2, GARIAHAT ROAD, (SOUTH), KOLKATA 700 068 / V/S . SHRI ANJAN MUKHERJEE FLATD NO. 2B, 7/1, QUEENS PARK, KOLKATA 700 019 [ PAN NO.AFRPM 8287 R ] /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI D.K. SONOWAL, SR-DR /BY RESPONDENT SHRI AVRA MAZUMDER, AR /DATE OF HEARING 12-06-2013 /DATE OF PRONOUNCEMENT 21-06-2013 /O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL FILED BY REVENUE IS ARISING OUT OF ORD ER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XIX, KOLKATA (CIT(A) FOR SHO RT) IN APPEAL NO.99/CIT(A)- XIX/ACIT,CIR-30/08-09 DATED 17-11-2009. THE ASSESSM ENT WAS FRAMED BY ACIT, CIRCLE-30, KOLKATA U/S.143(3) OF THE INCOME-TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 26-12-2007 FOR ASSE SSMENT YEAR (AY) 2005-06. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF LD. CIT(A) DELETING THE ADDITION MADE BY ASSESSING OFFI CER (AO) FOR SHORT TERM CAPITAL GAINS (STCG FOR SHORT), WHEREAS THE CLAIM O F ASSESSEE WAS THAT OF LONG ITA NO.288/KOL/2010 A.Y.2005-06 ACIT CIR-30 KOL V. SH. ANJAN MUKHERJEE PAGE 2 TERM CAPITAL GAINS (LTCG FOR SHORT). FOR THIS, REVE NUE HAS RAISED FOLLOWING GROUND:- THE LD. CIT(A) HAS ERRED IN FACTS AND CIRCUMSTANCE S OF THE CASE BY DELETING THE ADDITION OF RS.7,01,716/-. THE ASSESSEE IN THIS CASE HAS CLAIME D HAT CAPITAL GAIN OF RS.7,01,716/- ON ACCOUNT OF REDEMPTION OF DSP ML OPPORTUNITIES FUND HAS BEEN INCLUDED IN BOTH LONG TERM AS WELL AS SHORT TERM CAPITAL GAIN IN COMPUTING THE INCOME. HOWEVER, THE ASSESSEE HAD AMPLE OPPORTUNITY TO RECTIFY THE MISTAKE BY FILING A REVISED RETURN OF INCOME AS PER LAW WHICH HE DID NOT BOTHER TO DO. AS THERE IS NO PROVISION I N THE I.T. ACT FOR AMENDMENT OF RETURN WITHOUT A REVISED RETURN, APPEAL IS STRONGLY RECOMM ENDED. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS A RESI DENT, INDIVIDUAL, RETIRED FROM SERVICE HAVING INCOME FROM INVESTMENTS IN SHARES AN D / OR MUTUAL FUNDS, AND FROM OTHER SOURCES I.E., INTEREST, DIVIDENDS ETC., ALL THE INVESTMENTS ARE MANAGED BY FUND MANAGER LIKE HSBC, HDFC. DURING THE YEAR UN DER CONSIDERATION, ASSESSEES INCOME WAS FROM CAPITAL GAINS ON SALE OF SHARES, REDEMPTION OF MUTUAL FUND UNITS AND FROM OTHER SOURCES. WHILE ASC ERTAINING CAPITAL GAINS ON REDEMPTION OF MUTUAL FUND AN AMOUNT OF RS.7,01,717/ - WAS CONSIDERED AS LTCG AS WELL AS STCG WRONGLY BY THE FUND MANAGER RE SULTING TO DOUBLE COUNTING OF THE SAME AMOUNT. DURING THE COURSE OF A SSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS WRONGLY INCLUDED A SUM OF RS. 7,01,717/- OF STCG DESPITE THE FACT THAT MISTAKE WAS BROUGHT TO HIS NO TICE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A), WHO AFTER CONSI DERING THE SUBMISSIONS OF ASSESSEE DELETED THE ADDITION BY OBSERVING IN PARA- 6 OF HIS ORDER AS UNDER:- 6. I HAVE CONSIDERED THE SUB MISSION OF THE APPELL ANT AND PERUSED THE ASSESSMENT. I HAVE ALSO EXAMINED THE CAPITAL GAIN REPORT PREPARED BY THE FUND MANAGER. ON VERIFICATION OF REPORT THE CONTENTION OF THE APPELL ANT IS FOUND TO BE CORRECT THAT CAPITAL GAIN OF RS.7,01,716/- ON ACCOUNT OF REDEMPT ION OF DSP ML OPPORTUNITIES FUND HAS BEEN INCLUDED IN BOTH LONG TERM AS WELL AS SHORT TERM CAPITAL GAIN, WHILE IN ACTUAL, THE GAIN WAS LONG TERM CAPITAL GAIN. I A M OF THE OPINION THAT THE AO WAS NOT JUSTIFIED IN NOT CORRECTING THE MISTAKE WHEN SP ECIFICALLY POINTED OUT TO HIM DURING THE ASSESSMENT PROCEEDINGS. AN AMOUNT OF INCOME CAN NOT BEADED TWICE AND AN AMOUNT WHICH IS NOT TAXABLE UNDER A PARTICULAR HEAD CANNOT BE TAXED MERELY FOR THE REASON THAT TO RECTIFY THE MISTAKE THE APPELLANT HA S NOT FILED A REVISED RETURN. IT WAS A MISTAKE APPARENT FROM THE RECORD AND IT SHOULD HAVE BEEN RECTIFIED BY THE AO WHILE COMPUTING THE TOTAL INCOME. THE AO IS DIRECTED TO E XCLUDE AMOUNT OF RS.7,01,716/- FROM THE TOTAL AMOUNT OF SHORT TERM CAPITAL GAIN. T HE GROUND RAISED BY THE APPELLANT IS ALLOWED. ITA NO.288/KOL/2010 A.Y.2005-06 ACIT CIR-30 KOL V. SH. ANJAN MUKHERJEE PAGE 3 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSEE H AS EARNED LTCG ON ACCOUNT OF REDEMPTION OF DSP ML OPPORTUNITIES FUND OF RS.7, 01,716/- WHICH WAS INCLUDED BY THE FUND MANAGER AS STCG AND THIS WAS P OINTED OUT TO THE ASSESSING OFFICER BUT HE IS NOT CORRECTED THE MISTA KE ON VERIFICATION OF REPORT FROM THE FUND MANAGER. THE CIT(A) DELETED THE ADDIT ION AND WE HAVE NO REASON TO INTERFERE IN THE ORDER OF CIT(A). WE UPHO LD THE SAME AND THIS GROUND OF REVENUES APPEAL IS DISMISSED. 5. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. 6. ORDER IS PRONOUNCED IN OPEN COURT ON 21 ST JUNE, 2013 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER KOLKATA, DATE: 21 ST JUNE, 2013 *DKP !'# - ITA NO.288/KOL/2010 A.Y.2005-06 ACIT CIR-30 KOL V. SH. ANJAN MUKHERJEE PAGE 4 %%& %%& %%& %%& '& '& '& '& / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ''%( ) / CONCERNED CIT 4. ) - / CIT (A) 5. &*+ %%%( , %( / DR, ITAT, KOLKATA 6. +,- ./ / GUARD FILE. BY ORD ER/ , 0/2 '3 %(,