MUGAT MANEKLAL SHAH, MUMBAI V. ASST CIT 11(3), MUMBAI

ITA 4215/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9459 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 24-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Keywords: Business income

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K . BILLAIYA, A CCOUNTANT M EMBER / I .T.A. NO . 4215/MUM/2013 ( / ASSESSMENT YEAR : 2008 - 09 SHRI MUGAT MANEKLAL SHAH, 16 - 6, ASHIRWAD BLDG., VISWABHARTI, CHS VP ROAD, ANDHERI (W) MUMBAI - 400 058 / VS. THE ACIT 11(3), MUMBAI ./ ./ PAN/GIR NO. : AEGPS 7522D ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI DALPAT SHAH / RESPONDENT BY : SHRI JEETENDRA KUMAR / DATE OF HEARING : 17 . 0 3 .2015 / DATE OF PRONOUNCEMENT : 20 .03 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 7, MUMBAI DT. 8.2.2013 PERTAINING TO ASSESSMENT YEAR 2008 - 09. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO TREATING THE SHORT TERM CAPITAL GAIN AS BUSINESS INCOME WHILE PASSING THE ORDER U/S. 143(1) ITA. NO. 4215/M/2013 2 OF THE ACT. IT IS THE CLAIM OF THE ASSESSEE THAT SEC. 143(1) DOES NOT EMPOWER THE AO TO CHANGE THE HEAD OF THE INCOME AND IS NOT ALLOWED TO MAKE ANY CHANGES IN THE INCOME UNLESS THERE IS ANY ARITHMETICAL ERROR IN THE RETURN OF AN INCORRECT CLAIM, IF SUCH IN CORRECT CLAIM IS APPARENT FROM ANY INFORMATION IN THE RETURN. 3. IN THIS CASE RETURN OF INCOME WAS FILED ON ITR NO. 4 WHEREIN UNDER THE HEAD CAPITAL GAINS IN SCHEDULE CG, THE ASSESSEE HAS CLAIMED SHORT TERM CAPITAL GAIN TO BE TAXED AT SPECIAL RATE AS PER SEC. IIIA OF THE ACT. HOWEVER, A PERUSAL OF THE SAID COPY OF RETURN WHICH IS PLACED AT PAGES 9 TO 30 OF THE PAPER BOOK SHOWS THAT THE ASSESSEE HAS NOT FILLED THE COMPLETE DETAILS IN RELATION TO THE COMPUTATION OF SHORT TERM CAPITAL GAINS. ON THE CON TRARY, WE FIND THAT THE ASSESSEE HAS MENTIONED AS PER LIST ATTACHED. AS PER RULE 12(2), THE RETURN OF INCOME SHALL NOT BE ACCOMPANIED BY A STATEMENT SHOWING THE COMPUTATION OF THE TAX PAYABLE ON THE BASIS OF THE RETURN , OR PROOF OF THE TAX , OR ANY DOCU MENT OR COPY OF ANY ACCOUNT OR FORM OR REPORT OF AUDIT REQUIRED TO BE ATTACHED WITH THE RETURN OF INCOME UNDER ANY OF THE PROVISIONS OF THE ACT. IN SHORT, WHAT IS FILED IS A PAPERLESS RETURN. HOWEVER, AT THE SAME TIME, IT IS EXPECTED FROM THE ASSESSEE TO FILL EACH AND EVERY APPLICABLE COLUMN IN THE RETURN OF INCOME WHICH IN THE PRESENT CASE WE FIND THAT THE ASSESSEE HAS NOT TAKEN CARE OF IT . THUS THE CLAIM OF THE ASSESSEE TO BE TAXED AT SPECIAL RATE OF TAX APPEARS TO BE AN INCORRECT CLAIM WHICH IS APPAREN T FROM THE INFORMATION MADE AVAILABLE IN THE RETURN OF INCOME. 3.1. HOWEVER, CONSIDERING THE PECULIARITY OF THE CASE IN THE LIGHT OF THE CUMBERSOME PROCEDURE IN FILING THE DETAILS IN THE RETURN OF INCOME WHICH HAS BEEN MADE PAPERLESS RETURN, IN THE INTER EST OF JUSTICE, WE RESTORE THIS ISSUE TO THE FILE OF THE AO. THE ASSESSEE IS DIRECTED TO FILE THE COMPLETE ITA. NO. 4215/M/2013 3 DETAILS OF SHORT TERM CAPITAL GAINS. THE ASSESSEE IS ALSO DIRECTED TO EXPLAIN HOW SHORT TERM CAPITAL GAINS ARE LIABLE FOR SPECIAL RATE OF TAX U/S. IIIA OF THE ACT. THE AO IS DIRECTED TO VERIFY SUCH DETAILS AND IF FOUND SATISF IED COMPUTE THE LIABILITY AS PER THE SPECIAL RATE OF TAX PROVIDED U/S. IIIA OF THE ACT. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICA L PURPOSE. OR DER PRONOUNCED IN THE OPEN COURT ON 20 TH MARCH, 2015 SD/ - SD/ - ( VIJAY PAL RAO ) (N.K. BILLAIYA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 20 TH MARCH, 2015 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI