RAMRATAN BANSIDHAR KHANDELWAL, NAVI MUMBAI V. ITO WD 22(3)(1), NAVI MUMBAI

ITA 4169/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9220 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 23-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA P YADAV
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Business income; Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) . . , , ./ I.T. A. NO. 4169 / MUM/20 1 3 ( / ASSESSMENT YEAR : 20 0 7 - 0 8 ) RAMRATAN BANSIDHAR KHANDELWAL, 402, ANANT, PLOT NO.88/2, SECTOR - 29, VASHI, NAVI MUMBAI - 400705 / VS. INCOME TAX OFFICER - WARD - 22(3)(1), MUMBAI - TOWER - 6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400703 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : ABIPK91 8 2E / A SSESSEES BY SHRI SUBODH RATNAPARKHI / RE VENUE BY SHRI AKHILENDRA P YA DAV / DATE OF HEARING : 2 5 .3 . 201 5 / DATE OF PRONOUNCEMENT : 25. 3. 201 5 / O R D E R PER B.R. BASKARAN (AM) THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 1.3.2013 PASSED BY LD CIT(A) - 19, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 200 7 - 08 2. THE ISSUES CONTESTED IN THIS APPEAL RELATE TO THE TREATMENT OF THE BUSINESS INCOME AS SHORT TERM CAPITAL GAIN BY THE AO AND FURTHER DISALLOWANCE OF EXPENDITURE CLAIMED BY THE ASSESSEE. 3. THE LD. COUNSEL APPEAR ING FOR THE ASSESS E E SUBMIT TE D THA T THE ASSESS E E HAS CARRIED OUT PURCHAS E AND SALE OF PLOTS AS HIS BUSINESS ACTIVITY I.T.A. NO. 4169 / MUM/201 3 2 AND ACCORDINGLY DECLARED INCOME ARISEN THERE FROM AS BUSINESS INCOME. HOWEVER, THE AO HAS TREATED THE SAME AS SOLITARY TRANSAC TION OF PURCHASES AND SALE OF PLOT AND HENCE, ASSESSED THE PROFIT ARISEN FROM SALE OF PLOT AS SHORT TERM CAPITAL GAIN . CONSEQUENT LY, THE AO ALSO DISALLOWED THE EXPENDITURE CLAIMED BY THE ASSESSEE. THE LD. AR SUB MITTED THAT THE LD. CIT(A) ALSO CONFIRMED THE ORDER OF AO. THE LD. COUNSEL FURTHER SUBMIT TED THAT THE TAX AUTHORITIES WERE INCORRECT IN PRESUMING THAT THE IMPUGNED TRANSACTION WAS SOLITARY TRANSAC TION. HOWEVER, THE FACT REMAIN S THAT THE ASSESSEE HAS BEEN INDULGING IN SUCH TYPE OF TRANSACTION S FOR MANY YEARS. ACCORDINGLY, HE SUBMITTED THAT BOTH THE ISSUES UNDER CONSIDERATION REQUIRE FRESH EXAMINATION AT THE END OF THE AO , SINCE THERE IS SOME MISTAKE IN APPRECIATING THE BASIC FACTS . ACCORDINGLY, HE PRAYED THAT BOTH THE ISSUES MAY BE SET ASIDE TO THE FILE OF TH E AO. 4. THE LD. DR DID NOT OBJECT TO THE PLEA PUT FORTH BY TH E LD. AR. 5 . HAVING REGARD TO T HE SUBMISSIONS MADE BY TH E LD. AR, WE ARE OF T HE VIEW THAT BOTH THE ISSUES REQUIRE FRESH EXAMINATION BY DULY CONSIDERING ALL THE FACTS THAT MAY BE PRODUCED BY THE ASSESSEE. ACCORDINGLY , WE SET ASIDE THE ORDER OF THE LD.CIT(A) ON BOTH THE ISSUES CITED ABOVE AND RESTORE TO THE FILE OF AO FOR FRESH EXAMINATION. NEEDLESS TO MENTION THAT THE ASSESSEE SHOULD BE G IVEN PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD. I.T.A. NO. 4169 / MUM/201 3 3 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES . THE AB OVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 25TH MARCH, 2015 . 25TH MARCH, 2015 SD SD ( / AMIT SHUKLA ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 25TH MARCH,2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI