ACI&T, Pune V. M/s. Poonawalla Constructions Pvt. Ltd., Pune

ITA 448/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3296 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 17-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANTKUMAR C LEUVA
• Keywords: Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C. SUDHIR AND SHRI D. KARUNAKARA RAO ITA NO. 448/PN/09 (ASSTT. YEAR 2005-06) ACIT CIRCLE 4 PUNE .... APPELLANT VS. M/S. POONAWALLA CONSTRUCTIONS PVT. LTD. SOLI POONAWALLA ROAD, HADAPSAR, PUNE-411028 PAN NO. AACCP5476E . RESPONDENT APPELLANT BY : SHRI HEMANTKUMAR C. LEUVA RESPONDENT BY : SHRI NIKHIL PATHAK ORDER PER D. KARUNAKARA RAO AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A)-II, PUNE DATED 28/01/2009. AT THE VERY OUTSET, LD. COUN SEL FOR THE ASSESSEE POINTED OUT THAT THE GROUNDS RAISED BY THE REVENUE IN QUESTION RELATE TO THE TREATMENT OF EXCHANGE FLUCTUATION GAIN WHETHER IT IS REVENUE RECEIPT OR CAPITAL RECEIPT. 2. FURTHER HE MENTIONED THAT THE ISSUE UNDER CONSIDERAT ION IS DECIDED BY THIS TRIBUNAL IN THE CASE OF SHELLAC INVESTMENTS PVT. LTD . VS. ACIT, CIRCLE-1, PUNE BEARING ITA NO.1308/PN/2008 FOR A.Y 2005-06 AND READ O UT THE PARA 2 OF THE SAID ORDER DATED 31/05/2010. LD. DR FOR REVENUE RELIED ON THE ORDERS OF THE A.O. 3. WE HEARD THE PARTIES AND PERUSED THE ORDERS OF THE R EVENUE AS WELL AS THE ORDER OF THE TRIBUNAL IN THE CASE OF SHELLAC INVE STMENTS PVT. LTD. (SUPRA) WHEREIN PARA 2 READS AS UNDER:- ITA NO.448/PN/09 A.Y 2005-06 PAGE 2 OF 2 2. AT THE OUTSET OF HEARING LD. AR HAS POINTED OUT THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE VIDE ORD ER OF ITAT, PUNE B BENCH IN THE ITA NO. 899/PN/07 A.Y 2005-06 IN THE CASE OF M/S. YODELSIM HOLDINGS PVT. LTD. VS. DCIT, CIRCLE-7, PUNE WHEREIN TRIBUNAL HAS DISCUSSED AND DECIDED BY HOLDING AS UNDER:- 6. ON DUE CONSIDERATION OF THE FACTUAL AS WELL AS LEGAL ASPECT OF THE ISSUE RAISED BEFORE US, WE ARE OF THE OPINION T HAT THE IMPUGNED GAIN WAS NOTHING BUT A CAPITAL RECEIPT. WE DRAW DU E SUPPORT FROM THE PRECEDENTS CITED HEREINABOVE. RESPECTFULLY, FO LLOWING THE LAW LAID DOWN BY THE HONBLE COURT WHICH ARE PARI-MATER IA WITH THE FACTUM OF THE PRESENT APPEAL, WE HEREBY REVERSE THE FINDINGS OF THE AUTHORITIES BELOW AND DIRECT TO ALLOW THE CLAIM. GR OUNDS ARE ALLOWED. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE. FACT S BEING SIMILAR SO FOLLOWING SAME REASONING WE HOLD THAT IMPUGNED G AINS ARE NOTHING BUT CAPITAL RECEIPTS. A,O IS DIRECTED ACCOR DINGLY. 4. FROM THE ABOVE, IT IS EVIDENT THAT THE IMPUGNED FLUCTUATION GAIN EARNED BY THE ASSESSEE IS HELD AS A CAPITAL RECEIPT . NOTHING CONTRARY HAS BEEN BROUGHT ON RECORD BY THE REVENUE. FACTS BEING SIMILAR, FOLLOWIN G THE ABOVE REFERRED JUDGEMENT OF THIS TRIBUNAL, WE ARE OF THE OPINION THA T THE IMPUGNED GAIN HAS TO BE TREATED AS CAPITAL RECEIPT. ACCORDINGLY, GROUNDS RAIS ED BY THE REVENUE ARE DISMISSED. 5. IN THE RESULT APPEAL OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 08 TH OCTOBER, 2010. SD/- SD/- (I.C. SUDHIR) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 08 TH OCTOBER, 2010 R COPY OF THE ORDER IS FORWARDED TO : 1. ACIT, CIRCLE 4, PUNE 2. ASSESSEE 3 CIT-(A)-II, PUNE 4 CIT-II, PUNE 5 D.R. ITAT B BENCH BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE