DCIT 22(3), NAVI MUMBAI V. DURGA SHANTILAL SHARMA, NAVI MUMBAI

ITA 3868/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1813 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 31-01-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 13-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DIPAK KUMAR SINHA
• Assessee Lawyers: SANJAY CHAUDHARY
• Keywords: Business income; Rule of consistency
• Section: 143(3)

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI .. , ! ' #. $.. % , & ', ' BEFORE SHRI R.S.SYAL, AM AND DR.T.M.PAVALAN, JM ITA NO.3868/MUM/2010 : ASST.YEAR 2006-2007 THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 22(3) MUMBAI. SMT.DURGA SHANTILAL SHARMA 6A, SULOCHANA 3 RD FLOOR, SECTOR 16A, VASHI, NAVI MUMBAI 400 705. PAN : ABAPS8339M. ( () / // / APPELLANT) % % % % / VS. ( +,()/ RESPONDENT) ITA NO.3869/MUM/2010 : ASST.YEAR 2006-2007 THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 22(3) MUMBAI. SMT.KAVITA SHANTILAL SHARMA 6A, SULOCHANA 3 RD FLOOR, SECTOR 16A, VASHI, NAVI MUMBAI 400 705. PAN : AVXPS4148R. ( () / // / APPELLANT) % % % % / VS. ( +,()/ RESPONDENT) ITA NO.3870/MUM/2010 : ASST.YEAR 2006-2007 THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 22(3) MUMBAI. SHANTILAL R.SHARMA HUF 6A, SULOCHANA 3 RD FLOOR, SECTOR 16A, VASHI, NAVI MUMBAI 400 705. PAN : AAJHS2675A. ( () / // / APPELLANT) % % % % / VS. ( +,()/ RESPONDENT) REVENUE BY : SHRI DIPAK KUMAR SINHA ASSESSEE BY : SHRI SANJAY CHAUDHARY % - .! / / / / DATE OF HEARING : 31.01.2013 /01 - .! / DATE OF PRONOUNCEMENT : 05.02.2013 ' 2 ' 2 ' 2 ' 2 / / / / O R D E R PER R.S.SYAL (AM) : THESE THREE APPEALS BY THE REVENUE IN RELATION TO S OME DIFFERENT BUT CONNECTED ASSESSEES ARE IN RELATION T O THE ASSESSMENT YEAR 2006-2007. SINCE ALL THE APPEALS ARE BASED ON SIMILAR FACTS, WE ARE, THEREFORE, DISPOSING THEM OFF BY THIS CONSOLID ATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.3868, 3869 & 3870/MUM/2010. SMT.DURGA SHANTILAL SHARMA & ORS. 2 2. ON A REPRESENTATIVE BASIS, THE LEARNED DEPARTMEN TAL REPRESENTATIVE TOOK UP THE APPEAL IN THE CASE OF DU RGA SHANTILAL SHARMA, IN WHICH THE LEARNED CIT(A) DIRECTED THE AS SESSING OFFICER THAT THE INCOME OF ` 21,89,201 BE CONSIDERED AS CHARGEABLE TO TAX UNDER THE HEAD `CAPITAL GAIN INSTEAD OF BUSINESS I NCOME. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE SHOWED LONG TERM AND SHORT TERM CAPITAL GAIN ON TRANSFER OF SHARES AMOUN TING TO ` 21,89,201. THE ASSESSING OFFICER OBSERVED THAT THE NUMBER OF T RANSACTIONS IN THE SHARES WERE QUITE LARGE. CONSIDERING SUCH FACTS, HE TREATED THIS AMOUNT SHOWN BY THE ASSESSEE UNDER THE HEAD CAPITA L GAIN AS BUSINESS INCOME. THE LEARNED CIT(A) NOTICED THAT IN THE EARLIER YEARS AS WELL I.E. ASSESSMENT YEARS 2003-2004 TO 2005-200 6 THE ASSESSEE EARNED SIMILAR INCOME ON ACCOUNT OF TRANSACTIONS IN SHARES WHICH WAS ACCEPTED BY THE ASSESSING OFFICER AS `CAPITAL GAIN EVEN AFTER MAKING ASSESSMENT U/S 143(3) FOR ASSESSMENT YEAR 2004-2005 . THE REVENUE IS IN APPEAL BEFORE US. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSEE OFFERED SIMILAR INCOME FROM TRANSFER OF SHARES UNDER THE HEAD `CAPITAL GAIN IN THE PRECEDING YEAR S WHICH CAME TO BE ACCEPTED BY THE ASSESSING OFFICER AS SUCH. THE ASSE SSMENT FOR THE A.Y. 2004-2005 WAS DONE U/S 143(3). THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF CIT V. GOPAL PUROHIT [(2011) 336 ITR 287 (BOM.)] HAS EMPHASIZED ON THE PRINCIPLE OF CONSISTENCY. IN THIS CASE ITA NOS.3868, 3869 & 3870/MUM/2010. SMT.DURGA SHANTILAL SHARMA & ORS. 3 THE HONBLE HIGH COURT, DEALING WITH SIMILAR ISSUE, HELD THAT : THERE OUGHT TO BE UNIFORMITY IN TREATMENT AND CONSISTENCY WHEN THE FACTS AND CIRCUMSTANCES ARE IDENTICAL. THE LD. DR FAILED TO HIGHLIGHT ANY DISTINGUISHING FEATURE IN THE FACTS OF THE CURRENT YEAR VIS--VIS THE EARLIER YEARS DECIDED BY THE AO. IN VIEW OF THE AFO RE-QUOTED JUDGMENT COMING FROM THE HONBLE JURISDICTIONAL HIG H COURT, WE FIND THAT THE VIEW TAKEN BY THE LEARNED CIT(A) CANN OT BE DISTURBED. RESPECTFULLY FOLLOWING THE PRECEDENT, WE UPHOLD THE IMPUGNED ORDER. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS FAIR ENOUGH TO CONCEDE THAT THE FACTS AND CIRCUMSTANCES OF OTHER T WO APPEALS ARE IDENTICAL EXCEPT FOR THE AMOUNT OF THE GAIN WHICH W AS SHOWN BY THE ASSESSEE AS CAPITAL GAIN BUT ASSESSED BY THE AO AS BUSINESS INCOME. FOLLOWING THE VIEW TAKEN HEREINABOVE, WE UPHOLD THE IMPUGNED ORDERS FOR THESE TWO ASSESSES AS WELL. 5. IN THE RESULT, ALL THE THREE APPEALS ARE DISMISS ED. ORDER PRONOUNCED ON THIS 05 TH DAY OF FEBRUARY, 2013. ' 2 - /01 3'%4 0 - 5 SD/- SD/- (DR.T.M.PAVALAN) (R.S.SYAL) & ' & ' & ' & ' / JUDICIAL MEMBER ! ' ! ' ! ' ! ' / ACCOUNTANT MEMBER MUMBAI ; 3'% DATED : 05 TH FEBRUARY, 2013. DEVDAS* ITA NOS.3868, 3869 & 3870/MUM/2010. SMT.DURGA SHANTILAL SHARMA & ORS. 4 ' 2 - +&.67 8 71. ' 2 - +&.67 8 71. ' 2 - +&.67 8 71. ' 2 - +&.67 8 71./ COPY OF THE ORDER FORWARDED TO : 1. () / THE APPELLANT 2. +,() / THE RESPONDENT. 3. 9 () / THE CIT(A)-XXII, MUMBAI. 4. 9 / CIT 5. 7<5 +&.&% , , / DR, ITAT, MUMBAI 6. 5 = / GUARD FILE. ' 2% ' 2% ' 2% ' 2% / BY ORDER, ,7. +&. //TRUE COPY// > > > >/ // /? @ ? @ ? @ ? @ ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI