The ACIT, Circle-1(2), Ahmedabad V. Shri Himanshu Jayantilal Shah, Ahmedabad

ITA 3236/AHD/2011

• Counselvise Citation: 323620514 RSA 2011
• Duration Of Justice: 3 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 22-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: S N SOPARKAR
• Keywords: Earning of tax free income
• Section: 143(3)

Judgement Text

ITA NO.3236/AHD/2011 & C.O. NO.49/AHD/2012 ASSESSMENT YEAR: 2008-09 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S.S. GODARA JM] ITA NO.3236/AHD/2011 ASSESSMENT YEAR: 2008-09 ASSISTANT COMMISSIONER OF INCOME TAX, ........ .....APPELLANT CENTRAL CIRCLE-1(2), AHMEDABAD. VS. HIMANSHU J. SHAH, .................... ....RESPONDENT 7-B, JEEVAN SMRUTI SOCIETY, NR. MIRAMBICA SCHOOL, NARANPURA, AHMEDABAD. [PAN: AEJPS 4758 N] C.O. NO.49/AHD/2012 (IN ITA NO.3236/AHD/2011) ASSESSMENT YEAR: 2008-09 HIMANSHU J. SHAH, ................. .......APPELLANT 7-B, JEEVAN SMRUTI SOCIETY, NR. MIRAMBICA SCHOOL, NARANPURA, AHMEDABAD. [PAN: AEJPS 4758 N] VS. ASSISTANT COMMISSIONER OF INCOME TAX, .......... ...RESPONDENT CENTRAL CIRCLE-1(2), AHMEDABAD. APPEARANCES BY: DINESH SINGH, FOR THE REVENUE S.N. SOPARKAR, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : APRIL 30, 2015 DATE OF PRONOUNCING THE ORDER : JULY 21 , 2015. O R D E R PER PRAMOD KUMAR: 1. THIS APPEAL FILED BY THE ASSESSING OFFICER, AS A LSO CROSS OBJECTION FILED BY THE ASSESSEE, ARE DIRECTED AGAINST THE ORDER DATED 24 TH OCTOBER, 2011, PASSED BY THE LEARNED CIT(A) IN THE MATTER OF ASSESSMENT UNDER SE CTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), FOR THE ASSESSMENT YEAR 2008-09. ITA NO.3236/AHD/2011 & C.O. NO.49/AHD/2012 ASSESSMENT YEAR: 2008-09 PAGE 2 OF 5 2. WE WILL FIRST TAKE UP THE APPEAL FILED BY THE AS SESSING OFFICER. 3. IN THE FIRST GROUND OF APPEAL, THE ASSESSING OFF ICER HAS RAISED THE FOLLOWING GRIEVANCE: THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN TREATING INCOME FROM BUSINESS OF RS.35,970/- AS SHORT TERMS CAPITAL GAIN. 4. THE RELEVANT MATERIAL FACTS ARE LIKE THIS. DURIN G THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER MADE AN ADDITION OF RS 35, 970, ON ACCOUNT OF SALE AND PURCHASE OF SHARES OF MADHAV MARBLES LIMITED, AS THE ASSESSE COULD NOT PRODUCE EVIDENCE FOR PURCHASE OF THESE SHARES ON 14.12.2006. IN THE APPELLATE PROCEEDINGS, AND SATISFIED WITH TH E EVIDENCES FURNISHED AT THE APPELLATE STAGE, THE CIT(A) HELD THAT THIS AMOUNT O F R 35,970 IS TAXABLE AS SHORT TERM CAPITAL GAIN. THE ASSESSING OFFICER IS AGGRIEV ED OF THE RELIEF SO GIVEN BY THE CIT(A) AND IS IN APPEAL BEFORE US. 5. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, AND AS LEARNED DR HAS NOT BEEN ABLE TO DISL ODGE THE FINDINGS OF THE LEARNED CIT(A), WE SEE NO REASONS TO DISTURB THE CO NCLUSIONS ARRIVED AT BY THE CIT(A). WE APPROVE HIS ORDER ON THIS ISSUE AND DECL INE TO INTERFERE IN THE MATTER. 6. GROUND NO. 1IS THUS DISMISSED. 7. IN THE SECOND GROUND OF APPEAL, THE ASSESSING OF FICER HAS RAISED THE FOLLOWING GRIEVANCE: THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN TREATING INCOME FROM BUSINESS OF RS.1,47,289/- A S INCOME FROM OTHER SOURCES. ITA NO.3236/AHD/2011 & C.O. NO.49/AHD/2012 ASSESSMENT YEAR: 2008-09 PAGE 3 OF 5 8. AS REGARDS THIS GRIEVANCE, IT IS DIFFICULT TO UN DERSTAND THE ACTUAL GRIEVANCE OF THE ASSESSING OFFICER BECAUSE THE CIT(A) HAS MER ELY CONFIRMED THE ACTION OF THE CIT(A) AND DECLINED TO INTERFERE IN THE MATTER. YET, THE ASSESSING OFFICER IS IN APPEAL BEFORE US. 9. HAVING HEARD THE PARTIES AND HAVING PERUSED THE MATERIAL ON RECORD, WE FIND ALL THAT THE CIT(A) HAS DONE IS TO AFFIRM THE ACTION OF THE AO AND YET, MORE OUT OF REFLEX THAN ON MERITS, THE ASSESSING OFFICER HAS RAISED A GRIEVANCE AGAINST THE ACTION OF THE CIT(A). IN OUR CONSIDERED VIEW TH E GRIEVANCE OF THE ASSESSING OFFICER IS ILL CONCEIVED AND DESERVES TO BE DISMISS ED AS SUCH. 10. GROUND NO. 2 IS THUS DISMISSED. 11. IN GROUND NO. 3, THE ASSESSE HAS RAISED THE FOL LOWING GRIEVANCE: THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN TREATING INCOME FROM BUSINESS OF RS.74,12,078/- AS LONG TERM CAPITAL GAIN WHICH FORMS PART OF EXEMPT INCOME. 12. SO FAR AS THIS ISSUE IS CONCERNED, LEARNED REPR ESENTATIVES FAIRLY AGREE THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF TH E COMMISSIONER (APPEALS) IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING A SSESSMENT YEAR, I.E. 2007- 08, WHICH HAS BEEN AFFIRMED BY A COORDINATE BENCH O F THIS TRIBUNAL VIDE ORDER DATED 17 TH SEPTEMBER 2009- APPEAL AGAINST WHICH HAS BEEN DISM ISSED BY HONBLE JURISDICTIONAL HIGH COURT VIDE JUDGMENT DAT ED 31.8.2012. LEARNED CIT(A) HAS, IN THE IMPUGNED ORDER, SIMPLY FOLLOWED THE DECISION FOR THE ASSESSMENT YEAR 2007-08 WHICH HAS, IN THE LIGHT OF THE DEVELOPMENTS SET OUT ABOVE, ATTAINED FINALITY. 13. IN VIEW OF THE ABOVE POSITION, AND HAVING HEARD PARTIES ON THE ISSUE, WE SEE NO REASONS TO TAKE ANY OTHER VIEW THAT THE VIEW SO TAKEN BY THE COORDINATE BENCH VIDE ORDER DATED 17 TH SEPTEMBER 2009, WHICH HAS MET THE APPROVAL OF HONBLE JURISDICTIONAL HIGH COURT. RESPECTFULLY FOL LOWING THESE BINDING JUDICIAL PRECEDENTS, WHICH ARE DEEMED TO BE ATTACHED TO AND FORMING PART OF THIS ORDER ITA NO.3236/AHD/2011 & C.O. NO.49/AHD/2012 ASSESSMENT YEAR: 2008-09 PAGE 4 OF 5 AS WELL, WE REJECT THE GRIEVANCE OF THE ASSESSING O FFICER AND UPHOLD THE STAND OF THE CIT(A). WE APPROVE THE CONCLUSIONS ARRIVED AT B Y THE CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 14. GROUND NO. 3 IS ALSO THUS DISMISSED. 15. IN THE RESULT, THE APPEAL BY THE ASSESSING OFFI CER IS DISMISSED 16. WE NOW TAKE UP THE CO FILED BY THE ASSESSE. 17. IN THE CROSS OBJECTION FILED BY THE ASSESSEE, T HE FOLLOWING GROUNDS HAVE BEEN RAISED:- 1. THE LD. CIT(A) HAS ERRED IN TREATING RS.147289/- INCOME FROM OTHER SOURCES INSTEAD OF LONG TERM CAPITAL GAIN AS SHOWN BY THE ASSESSEE. 2. THE LD. CIT(A) HAS OUGHT TO HAVE HELD THAT IN FA CT SHARES OF RADHE DEVELOPERS WERE FOR A PERIOD OF MORE THAN ONE YEAR AND THEREFORE THE GAIN IS TO BE TAXED AS LONG TERM CAPI TAL GAIN. 18. LEARNED COUNSEL FOR THE ASSESSE STATES THAT IN VIEW OF SMALLNESS OF TAX INVOLVED, HE DOES NOT WISH TO PURSUE THESE GROUNDS OF CROSS OBJECTIONS. 19. BOTH THE GROUNDS OF CROSS OBJECTION ARE THUS DI SMISSED. 20. IN THE RESULT, THE CROSS OBJECTION IS ALSO DISM ISSED. 21. TO SUM UP, THE APPEAL AS ALSO THE CROSS OBJECTI ONS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON 21 ST DAY OF JULY 2015. SD/- SD/- S. S. GODARA PRAMOD KUM AR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 21 ST DAY OF JULY, 2015 ITA NO.3236/AHD/2011 & C.O. NO.49/AHD/2012 ASSESSMENT YEAR: 2008-09 PAGE 5 OF 5 COPIES TO: (1) THE APPELLANT (2) THE RESPON DENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT/DEPUTY REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD