ADDL CIT CIR 16(2), MUMBAI V. RAHUL PREMNATH BHATIA, MUMBAI

ITA 4076/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92614 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D , MUMBAI BEFORE SHRI B.R. BASKARAN , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 4076 /M/201 2 ASSESSMENT YEAR: 200 8 - 0 9 ASST. C OMMISSIONER OF INCOME - TAX 1 6 ( 2 ), MATRU MANDIR, TARDEO ROAD, MUMBAI 400 00 7 VS. SHRI RAHUL PREMNATH BHATIA, 9, ASHIANA BUILDING, 5, ALTAMOUNT ROAD, MUMBAI 400 026 PAN: AADPB 0626L (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SANJIV M. SHAH, A.R. REVENUE BY : SHRI LOVE KUMAR, D.R. DATE OF HEARING : 12 .03. 201 5 DATE OF PRONOUNCEMENT : 29.05. 2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST THE ORDER DATED 02.03.2012 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERRED TO AS CIT(A)] RELEVANT TO ASSESSMENT YEAR 2008 - 09. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) ERRED IN DIRECTING THE A.O. THE REBATE U/S 88E OF THE I. T.ACT TOWARDS THE STT PAID BY THE ASSESSEE WHEN THERE WAS NO SUCH CLAIM OF THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD GROUND/S WHICH MAY BE NECESSARY ITA NO.4076/M/2012 SHRI RAHUL PREMNATH BHATIA 2 THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE SOLE ISSUE RAISED BY THE REVENUE VIDE ABOVE GROUNDS OF APPEAL IS RELATING TO THE ACTION OF THE LD. CIT(A) IN DIRECTING THE ASSESSING OFFICER ( HEREINAFTER REFERRED TO AS THE AO) TO ALLOW THE ASSESSEE OF REBATE UNDER SECTION 88E OF THE INCOME TAX ACT TOWARDS STT PAID. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE HAD RETURNED ITS INCOME EARNED FROM SALE AND PURCHASE OF SHARES AS CAPITAL GAINS. THE AO HOWEVER TREATED THE SAME AS BUSINESS INCOME. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A). 5. THE LD. CIT(A), THOUGH UPHELD THE FINDING OF THE AO IN TREATING THE SHARE INCOME OF THE ASSESSEE AS BUSINESS INCOME, HOWEVER, HELD THAT THE ASSESSEE WAS ENTITLED TO CONSEQUENTIAL RELIEF OF REBATE UNDER SECTION 88E IN RESPECT OF STT PAID IN CONSEQUENCE OF HIS INCOME BEING TREATED AS BUSINESS INCOME. NOW THE REVENUE IS AGGRIEVED BY THE ORDER OF THE LD. CIT(A) CONT ENDING THAT THE ASSESSEE HAD NOT CLAIMED SUCH REBATE IN ITS ORIGINAL RETURN OF INCOME. THE UNDISPUTED FACT ON THE FILE IS THAT THE ASSESSEE HAD CLAIMED THE SHARE INCOME AS SHORT TERM CAPITAL GAINS. HENCE, UNDER SUCH CIRCUMSTANCES THERE WAS NO QUESTION OF CLAIMING THE REBATE UNDER SECTION 88E FOR THE ASSESSEE. HOWEVER, WHEN THE HEAD OF THE INCOME WAS CHANGED BY THE AO AS BUSINESS INCOME , THE AO WAS DUTY BOUND TO GIVE THE ELIGIBLE REBATE/ALLOWANCES TO THE ASSESSEE ACCORDINGLY , UNDER THE HEAD IN WHICH THE I NCOME OF THE ASSESSEE WAS ASSESSED BY THE AO. SINCE THE AO HAD FAILED IN HIS DUTY TO GIVE THE ASSESSEE THE ELIGIBLE REBATE , THE LD. CIT(A) HAD GIVEN THE SAME WHICH WAS WELL JUSTIFIED. ITA NO.4076/M/2012 SHRI RAHUL PREMNATH BHATIA 3 6. IN VIEW OF THE FACTS NARRATED ABOVE, THERE IS NO MERIT IN THE APP EAL OF THE REVENUE AND THE SAME IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.05. 201 5 . SD/ - SD/ - ( B.R. BASKARAN ) (SANJAY GARG) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 29.05.2015 . * KISHORE , SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.