Shri Vinay K.Maneck, Baroda V. The ACIT.,Circle-3, Baroda

ITA 3109/AHD/2009

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6320 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-04-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 20-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.3109 / AHD/2009 (ASSESSMENT YEAR 2005-06 SHRI VINAY K MANECK, 12, NIHARIKA SOCIETY, ELLORA PARK, BARODA VS. ACIT, CIRCLE 3, BARODA PAN/GIR NO. : ACKPM4875F (APPELLANT) .. (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI RAKESH AGRAWAL, SR. DR DATE OF HEARING: 31.10.2011 DATE OF PRONOUNCEMENT: 31.10.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. CIT(A) II BARODA DATED 04.08.2009 FOR THE ASSESSMEN T YEAR 2005-06. THE GROUND RAISED BY THE ASSESSEE ARE AS UNDER: 1) THE LD. CIT(A) ERRED IN HOLDING THAT THE CAPITA L GAINS EARNED BY THE APPELLANT FROM SALE OF MUTUAL FUNDS /SHARES WAS BUSINESS INCOME AND NOT SHORT TERM & LONG TERM CAPITAL GAINS RESPECTIVELY A CLAIMED BY THE APPELLANT IN THE RETU RN OF INCOME. 2) THE LD. CIT(A) ERRED IN HOLDING THAT THE SINCE THE BALANCE SHEET OF THE APPELLANT WAS FILED FOR THE FIRST TIME DURIN G ASSESSMENT YEAR 2005-06, NO EVIDENCES RESTORED TO ESTABLISH TH AT THE SHARES AND MUTUAL FUNDS WERE HELD BY THE APPELLANT FOR THE PURPOSE OF INVESTMENT. 3) THE LD. CIT(A) ERRED IN HOLDING THAT THOUGH THE SHA RES AND MUTUAL FUNDS THOUGH HELD FOR MORE THAN ONE YEAR WER E STOCK IN TRADE OF THE APPELLANT. I.T.A.NO. 3109 /AHD/2009 2 2. THIS APPEAL WAS FIXED FOR HEARING ON 21.05.2011. ON THAT DATE, HEARING WAS ADJOURNED ON THE REQUEST OF THE LD. A.R . FOR THE ASSESSEE SHRI M K PATEL AND THE HEARING WAS FIXED TO 17.08.2011. ON THIS DATE, THE BENCH DID NOT FUNCTION AND THEREFORE, HEARING WAS A DJOURNED TO 31.10.2011 AND NOTICE OF HEARING WAS SENT TO THE AS SESSEE BY RPAD, WHICH WAS DULY SERVED ON THE ASSESSEE AS PER THE AC KNOWLEDGMENT AVAILABLE ON RECORD. ON THIS DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THERE IS NO REQUEST FOR ADJOURNMEN T. UNDER THESE CIRCUMSTANCES, IT IS INFERRED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING HIS APPEAL AND HENCE, THE SAME IS LIABLE TO BE DISM ISSED FOR NON PROSECUTION. IN OUR ABOVE VIEW, WE FIND SUPPORT FRO M THE FOLLOWING DECISIONS:- IN THE CASE OF CIT VS B.N. BHATTACHARGEE AND ANOTHE R, REPORTED IN 118 ITR 461 (RELEVANT PAGES 477 AND 478) WHEREIN TH EIR LORDSHIPS HAVE HELD THAT THE APPEAL DOES NOT MEAN MERELY FIL ING OF THE APPEAL BUT EFFECTIVELY PURSUING IT. IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS C WT; 223 ITR 480 (M.P.) WHILE DISMISSING THE REFERENCE MADE AT T HE INSTANCE OF THE ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN THEIR ORDER:- IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENC E, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. IN THE CASE OF CIT VS MULTIPLAN INDIA LIMITED; 38 ITD 320 (DEL), THE APPEAL WAS FILED BY THE REVENUE BEFORE THE TRIB UNAL, WHICH WAS FIXED FOR HEARING. BUT ON THE DATE OF HEARING, NOB ODY REPRESENTED THE REVENUE/APPELLANT NOR ANY COMMUNICATION FOR ADJ OURNMENT WAS I.T.A.NO. 3109 /AHD/2009 3 RECEIVED. THERE WAS NO COMMUNICATION OR INFORMATIO N AS TO WHY THE REVENUE CHOSE TO REMAIN ABSENT ON DATE. THE TR IBUNAL ON THE BASIS OF INHERENT POWERS, TREATED THE APPEAL FILED BY THE REVENUE AS UNADMITTED IN VIEW OF THE PROVISIONS OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING I.E. 31.10.2011. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD; DATED : 31 ST OCT., 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 31/10 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31/10.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.31/10 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 31/10/2011 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.31/10 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31/10/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..