A.C.I.T.-3, Mathura V. Sh. Suresh Chand Agarwal, Mathura

ITA 334/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0569 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 9 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 19-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Business income; Tax effect; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.334/AGR/2012 ASSESSMENT YEAR: 2007-08 ASSTT. COMMISSIONER OF INCOME TAX - 3, VS. SHRI SUR ESH CHAND AGRAWAL, MATHURA. PROP. M/S. B.S. & CO., 143, SEWA KUNJ, VRINDABAN, MATHURA. (PAN: AEHPA 7462 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. MISHRA, JR. D.R. RESPONDENT BY : NONE (WRITTEN SUBMISSION) DATE OF HEARING : 10.12.2012 DATE OF PRONOUNCEMENT OF ORDER : 11.01.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 15.02.2012 PASSED BY THE LD. CIT(A)-1, AGRA FOR THE ASSESSMENT YEAR 2007-08. 2. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOW EVER, WRITTEN SUBMISSION HAS BEEN MADE. 3. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIV E, APPEAL OF THE REVENUE IS DECIDED AS UNDER :- ITA NO.334/AGR/2012 A.Y. 2007-08 2 4. THE EFFECTIVE GROUND RAISED IN THIS APPEAL PERTA INS TO WHETHER SALE OF SHARES IS ASSESSABLE AS BUSINESS INCOME OR AS LONG TERM CA PITAL GAIN (LTCG). 5. THE ASSESSEE DECLARED LTCG ON SALE OF SHARES WHE REAS THE A.O. HAS TAKEN IT AS BUSINESS INCOME. THE A.O. FOLLOWED A.YS. 2005-0 6 AND 2006-07. THE CIT(A) ALLOWED THE APPEAL FOLLOWING THE ORDERS FOR A.YS. 2 005-06 & 2006-07. 6. WE FIND THAT IN A.Y. 2006-07 THE I.T.A.T. IN ITA NO.56/AGR/2011 VIDE ORDER DATED 22.06.2012, DISMISSED THE REVENUES APP EAL AS UNDER :- 5. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. WE NOTICE THAT THE ASSESSEE DECLA RED LONG TERM CAPITAL GAIN ON SALE OF SHARES ON DELIVERY BASIS AN D THE INTENTION OF THE ASSESSEE WAS TO EARN DIVIDEND. IT HAS BEEN NOT ED FROM THE ORDER OF THE CIT(A) THAT THE ASSESSEE HAS EARNED DIVIDEND OF RS.4,84,017/-. THIS DIVIDEND HAS BEEN EARNED BY THE ASSESSEE IN RE SPECT OF INVESTMENT IN SHARES. THUS, THE RELATED SHARES WERE SHOWN IN INVESTMENT ACCOUNT IN BOOKS OF ACCOUNT AS NOTED BY THE CIT(A). THIS F ACT WAS NOTED BY THE CIT(A) AFTER VERIFYING THE RELEVANT BOOKS AND R ECORDS. THE ASSESSEE IS FOLLOWING SUCH PRACTICE SINCE A.Y. 2001 -02. THE ASSESSEE HAS RECORDED THE SHARE TRANSACTION IN BOOKS OF ACCO UNT IN FIRST SET OF TRANSACTION AS INVESTMENT IN SHARES AND SECOND SET OF TRANSACTION INVESTMENT IN SHARES FOR THE PURPOSE OF BUSINESS. THE BIFURCATION OF SHARES AS INVESTMENT AND AS BUSINESS HAVE BEEN RECO RDED IN THE BOOKS OF ACCOUNT ON DAY TODAY BASIS. IT HAS ALSO BEEN NO TED FROM THE ORDER OF CIT(A) THAT IN A.Y. 2005-06 THE CIT(A) ACCEPTED THE ASSESSEES CLAIM AND SET ASIDE THE ORDER OF A.O. IN THE YEAR U NDER CONSIDERATION, THE CIT(A) ALSO FOLLOWED HIS PREDECESSORS ORDER FO R A.Y. 2005-06. IT HAS ALSO BEEN NOTED THAT IN A.Y. 2005-06 THE REVENU E FILED APPEAL BEFORE THE I.T.A.T. AND THE I.T.A.T. AHS DISMISSED THE APPEAL OF THE REVENUE ON ACCOUNT OF LAW TAX EFFECT AS SUBMITTED B Y THE LD. AUTHORISED REPRESENTATIVE. THE REVENUE HAS FAILED TO POINT OUT ANY CONTRARY FACT TO THE FACTS NOTED BY THE CIT(A). TH EREFORE, TO MAINTAIN ITA NO.334/AGR/2012 A.Y. 2007-08 3 CONSISTENCY, WE FIND THAT THE CIT(A) HAS RIGHTLY SE T ASIDE THE ORDER OF A.O. AND ALLOWED THE CLAIM OF THE ASSESSEE IN RESPE CT OF SHARES FOR WHICH THE ASSESSEE HAS SHOWN CAPITAL GAIN. WE, THE REFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). ORDER O F THE CIT(A) ON THE ISSUE IS CONFIRMED. 7. THE REVENUE DID NOT DISPUTE THE FACTS OF THE CAS E UNDER CONSIDERATION AND FACTS OF THE CASES FOR A.YS. 2005-06 & 2006-07. SI NCE THE FACTS ARE IDENTICAL TO A.Y. 2006-07, WE FOLLOW THE ORDER OF I.T.A.T. FOR A .Y. 2006-07 AND IN THE LIGHT OF THAT THE APPEAL FOR THE YEAR UNDER CONSIDERATION I. E. A.Y. 2007-08 IS ALSO DISMISSED ON THE SAME REASONS AS DISCUSSED IN ABOVE ORDER OF I.T.A.T. FOR A.Y. 2006-07 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY