ITO 17(2)(1), MUMBAI V. ASHWIN D. DEDHIA, MUMBAI

ITA 4756/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70855 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 17-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS BHAVANA YASHROY
• Assessee Lawyers: ASHWIN DEDHIA
• Keywords: Income from undisclosed sources; Maximum Marginal Rate; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , . ! , '# ' $ BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY ARO RA, AM ./ I.T.A. NO. 4756/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2003-04 THE ITO 17(2)(1), ROOM NO.216, 2ND FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI 400012 % % % % / VS. SHRI ASHWIN D. DEDHIA, 196/17, GURU SEVAK KUTIR, 2 ND FLOOR, WADALA STATION ROAD, WADALA, MUMBAI 400031. ' '# ./ ( ./ PAN/GIR NO. : AAACPD 8792N ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , ' / APPELLANT BY: MRS. BHAVANA YASHROY *+') - , ' / RESPONDENT BY : SHRI ASHWIN DEDHIA % - .# / DATE OF HEARING : 26/08/2013 / & - .# / DATE OF PRONOUNCEMENT : 26/08/2013 '0 / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST ORDER PASSED BY LD. CIT(A)-29, MUMBAI DATED 09/04/2012 FOR ASSES SMENT YEAR 2003-04. THE GROUNDS OF APPEAL READ AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, 4 THE LD. CIT(A) HAS ERRED IN HOLDING THE TRANSACTI ON OF PURCHASE AND SALE OF SHARES OF M/S. BUNIYAD CHEMICALS LTD., BY THE ASSESSEE THR OUGH M/S. MAHASAGAR SECURITIES PVT. LTD. AND M/S. GOLDSTAR FINVEST PVT. LTD TO BE GENUINE TRANSACTION INSTEAD OF TREATING THE SAME AS DUBIOUS TRANSACTION S BASED ON THE FACTS THAT THE ITAT, MUMBAI, IN ITA NO.4625/MUM/2005 HAS QUANTIFIE D THE INCOME OF M/S. GOLDSTAR FINVEST PVT. LTD. FOR A.Y. 2002-03 AT 0.15 % OF THE TOTAL TURNOVER TREATING IT AS AN ENTRY PROVIDER. 5 THE LD. CIT(A) HAS ERRED IN CONSIDERING THE INCOM E OF RS.7,52,677/- TO BE ASSESSABLE UNDER THE HEAD CAPITAL GAINS INSTEAD OF ASSESSING THE SAME AS INCOME FROM UNDISCLOSED SOURCES ULS.68 OF THE I.T.ACT. ./ I.T.A. NO. 4756/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2003-04 2 6 THE LD. CIT(A) HAS ERRED IN DIRECTING THE AC TO A LLOW EXEMPTION U/S.54EC IN RESPECT OF THE CAPITAL GAIN DISCLOSED BY THE ASSESS EE INSTEAD OF TREATING THE SAME AS INCOME ASSESSABLE U/S.68 OF THE. I.T.ACT ON WHICH T HE EXEMPTION U/S.54EC OF THE I.T.ACT WAS NOT AVAILABLE AND THEREFORE ERRED IN TO UPHOLDING FINDING OF THE ASSESSING OFFICER IN THIS REGARD. 2. IN THE PRESENT APPEAL REVENUE IS CONTESTING THE DELETION OF ADDITION OF RS.7,52,677/- LD. AR OF THE ASSESSEE RELIED UPON THE INSTRUCTION NO.3/11 DATED 9/2/2011. IT WAS SUBMITTED THAT THE IMPUGNED APPEA L HAS BEEN FILED BY THE DEPARTMENT ON 17/7/2012 WHEN AS PER AFOREMENTIONED CIRCULAR APPEAL BEFORE THE TRIBUNAL SHOULD NOT HAVE BEEN FILED IN CASE WHE RE TAX EFFECT IS LOWER THAN RS.3.00 LACS. IT WAS FURTHER SUBMITTED THAT WHILE CALCULATING TAX EFFECT INTEREST CANNOT BE INCLUDED. IT WAS SUBMITTED BY LD. AR TH AT MAXIMUM MARGINAL RATE AS APPLICABLE FOR THE AFOREMENTIONED ASSESSMENT IS 30 % AND IF TAX IS CALCULATED THEN THE SAME WILL BE LESS THAN RS.3.00 LACS. 3. LD. DR COULD NOT CONTROVERT SUCH SUBMISSION OF L D. AR . 4. WE HAVE HEARD BOTH THE PARTIES. THE HONBLE HIGH COURT OF BOMBAY IN CASE OF CIT VS. CAMCO COLOR CO. (254 ITR 565) HAVE HELD THAT THE APPEAL FILED BY THE REVENUE AUTHORITIES IN CONTRAVENTION OF THE INSTRUC TION OF CBDT IS NOT MAINTAINABLE. IN THE PRESENT CASE ON THE DATE OF F ILING OF APPEAL THE MONETARY LIMIT WAS RS. 3.00 LACS. THEREFORE, IN VIEW OF TH E JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN CASE OF CAMCO COLOR CO.(SUPRA) THE PRESENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AS TAX EFFECT IS LESS THAN RS.3.OO LACS. WE, THEREFORE, DISMISS THE APPEAL OF THE REVENUE AS NON - MAINTAINABLE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/08/2013 . '0 - & #' 1 2%3 26/08/2013 - 4 SD/- SD/- ( SANJAY ARORA) (I.P.BANSAL) /ACCOUNTANT MEMBER '# /JUDICIAL MEMBER MUMBAI; 2% DATED 26/08/2013 ./ I.T.A. NO. 4756/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2003-04 3 '0 '0 '0 '0 - -- - *.56 *.56 *.56 *.56 7'6&. 7'6&. 7'6&. 7'6&. / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. 8 ( ) / THE CIT(A)- 4. 8 / CIT 5. 694 *.% , , / DR, ITAT, MUMBAI 6. 4: ; / GUARD FILE. '0% '0% '0% '0% / BY ORDER, +6. *. //TRUE COPY// < << < / = = = = (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . .VM , SR. PS