DEPUTY COMMISSIONER OF INCOME TAX CC-3(4), CENTRAL RANGE-3, MUMBAI V. SHRI KAMAL KHETAN, MUMBAI

ITA 4767/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0736 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2014-2015
• Appeal Filed On: 06-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RISHABH S HAH
• Keywords: Revised return

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL H BENCH MUMB AI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 4767/MUM/2018 (ASSESSMENT YEAR 2014-15 ) DCIT CC - 3(4) , CENTRAL RANGE-3, ROOM NO. 1923, 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-400021 VS. SHRI KAMAL KHETAN, 78, KHETAN BHAVAN, J.B. NAGAR, ANDHERI (EAST), MUMBAI-400005. PAN: AAHPK4505D APPELLANT RESPONDE NT APPELLANT BY : SHRI MANOJ KUMAR SINGH (SR DR) RESPONDENT BY : SHRI RISHABH SHAH (AR) DATE OF HEARING : 06.08.2019 DATE OF PRONOUNCEMEN T : 06.08.2019 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDE R OF LD. COMMISSIONER (APPEALS)-51, MUMBAI, DATED 02.05.2018 FOR ASSESSME NT YEAR 2014-15. THE REVENUE HAS RAISED THE FOLLOWING GROUND OF APPE AL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. COMMISSIONER (APPEALS) ERRED IN RESTORING THE ISSUE OF ALLOWANCE OF SHORT TERM CAPITAL LOSS WITHIN THE MEANING OF SECTION 94( 7) OF THE ACT, BACK TO THE AO, IN CONTRAVENTION WITH THE PROVISIONS OF SECTION 251(1) OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2014-15 ON 30.07.2014 DECLARING INC OME OF RS. 2,90,79,860/-. IN THE RETURN OF INCOME, THE ASSESSE E OFFERED SHORT TERM CAPITAL LOSS (STCL) OF RS. 49,09,645/- ON ACCOUNT O F SALE OF SHARE AND CARRY FORWARD THE SAME TO THE SUBSEQUENT YEAR. DURI NG THE ASSESSMENT, THE ITA NO. 4767 MUM 2018-SHRI KAMAL KHETAN 2 ASSESSEE STATED THAT DUE TO OVERSIGHT, THE ASSESSEE HAD NOT ADJUSTED LOSS FROM DIVIDEND STRIPPING OF RS. 1.60 CRORE AS PER S ECTION 94(7) OF THE ACT. THE ASSESSEE FILED REVISED COMPUTATION OF TOTAL INC OME AND CLAIMED STCL TO BE CARRY FORWARD FOR NEXT YEAR AMOUNTING TO RS. 2.09 CRORE INSTEAD OF RS. 49.0 LAKHS (APPROX) CLAIMED EARLIER . THE CONTENTION OF ASSESSEE WAS NOT ACCEPTED BY ASSESSING OFFICER BY T AKING VIEW THAT AS PER THE DECISION OF HONBLE SUPREME COURT IN GOETZE IND IA LTD. VS. CIT (284 ITR 323) THAT NO CLAIM OF DEDUCTION CAN BE MADE IN COURSE OF ASSESSMENT PROCEEDING OTHER THAN MADE IN THE RETURN OF INCOME AND THAT THE ASSESSEE HAS NOT FILED REVISED RETURN. ON APPEAL BEFORE THE LD. COMMISSIONER (APPEALS), THE ACTION OF ASSESSING OFFICER WAS REVE RSED. THE LD COMMISSIONER (APPEALS) DIRECTED THE ASSESSING OFFIC ER TO VERIFY THE FACT AND ALLOW THE REVISE CLAIM. THE LD. COMMISSIONER (A PPEALS) WHILE REVERSING THE ACTION OF ASSESSING OFFICER RELIED UP ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN CIT VS. PRUTHVI BROKER S & SHAREHOLDERS PVT. LTD. [349 ITR 336 (BOM)]. THE LD. COMMISSIONER (APPEALS) ALSO HELD THAT ASSESSING OFFICER HAS NOT DISPUTED THE ME RIT OF THE CLAIM, HOWEVER, THE CLAIM WAS NOT ALLOWED AS THE SAME WAS NOT MADE BY WAY OF REVISED RETURN OF INCOME. AGGRIEVED BY THE ORDER OF LD. COMMISSIONER (APPEALS), THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE CONSIDERED THE SUBMISSION OF LD. DEPARTMENT AL REPRESENTATIVE (DR) FOR THE REVENUE AND LD. AUTHORIZED REPRESENTAT IVE (AR) OF THE ITA NO. 4767 MUM 2018-SHRI KAMAL KHETAN 3 ASSESSEE AND PERUSED. THE LD. DR FOR THE REVENUE SU PPORTED THE ORDER OF ASSESSING OFFICER. THE LD. DR FOR THE REVENUE VEHEM ENTLY SUBMITTED THAT THE ASSESSING OFFICER ACTED WITHIN HIS JURISDICTION AS THE ASSESSEE HAS NOT FILED REVISED RETURN OF INCOME WITHIN THE PERIOD PR ESCRIBED UNDER THE ACT. THE ASSESSING OFFICER HAS NO JURISDICTION TO ACCEPT THE REVISED COMPUTATION IN ABSENCE OF REVISED RETURN OF INCOME. 4. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE SUPPO RTED THE ORDER OF LD. COMMISSIONER (APPEALS). THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT THOUGH THE ASSESSING OFFICER IS NOT ENTITLED TO CON SIDER THE CLAIM IN ABSENCE OF REVISED RETURN. HOWEVER, THE POWERS OF A PPELLATE AUTHORITY ARE NOT RESTRICTED TO CONSIDER THE ADDITIONAL CLAIM AND TO ADJUDICATE THE SAME. THE LD. COMMISSIONER (APPEALS) ACCEPTED THE C ONTENTION RAISED BY ASSESSEE BY FOLLOWING THE DECISION OF JURISDICTIONA L HIGH COURT IN CIT VS. PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. (SUPRA) AN D ACCEPTED THE CONTENTION OF ASSESSEE THAT DUE TO OVERSIGHT, THE A SSESSEE HAD NOT ADDED THE LOSS ON ACCOUNT OF THE DIVIDEND STRIPPING OF RS . 1.60 CRORE FROM THE STCL AND HENCE SHOWED THE LOSS TO BE CARRIED FORWAR D AS RS. 49.09 LAKHS ONLY. THE LD COMMISSIONER (APPEALS) RIGHTLY EXERCIS ING THE POWER OF APPELLATE AUTHORITY ADMITTED THE REVISED CLAIM OF T HE ASSESSEE AND DIRECTED THE ASSESSING OFFICER TO VERIFY THE FACTS AND GRANT THE RELIEF TO THE ASSESSEE. THERE IS NO INFIRMITY IN THE ORDER PASSED BY THE LE ARNED COMMISSIONER (APPEALS). ITA NO. 4767 MUM 2018-SHRI KAMAL KHETAN 4 5. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT WHILE FILING THE RETURN OF INCOME, THE ASSESSEE CLAIMED STCL OF RS. 49.09 L AKHS ONLY ON ACCOUNT OF SALE OF SHARES AND CARRY FORWARD THE SAME FOR SU BSEQUENT YEAR. DURING THE ASSESSMENT THE ASSESSEE FILED REVISED COMPUTATI ON AND CLAIMED THAT DUE TO INADVERTENCE, THE ASSESSEE HAS NOT CONSIDERE D THE LOSS OF RS. 1.60 CRORE ON ACCOUNT OF DIVIDEND STRIPPING AND THE SECT ION 94(7) OF THE ACT IS NOT APPLICABLE IN HIS CASE AS HE HELD THE SAID SHAR ES/ SCRIPS FOR MORE THAN 3 MONTH PRIOR TO THE RECORD DATE. THE ASSESSEE RAIS ED THIS CONTENTION BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER NOT ACCEPTED BY TAKING HIS VIEW THAT SUCH CLAIM CAN ONLY BE ACCEPTE D BY WAY OF REVISED RETURN OF INCOME. HOWEVER, DURING THE FIRST APPEAL, THE LD. COMMISSIONER (APPEALS) BY FOLLOWING THE DECISION OF JURISDICTION AL HIGH COURT IN CIT VS. PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. (SUPRA ) ACCEPTED THE REVISED COMPUTATION OF ASSESSEE. THE LD COMMISSIONER (APPEA LS) ALSO CONSIDERED THE FACTS THAT THE ASSESSING OFFICER HAS NOT DISPUT ED THAT SHARE OF STRIDE AIRCOLAB LTD. HAVE BEEN HELD BEYOND THREE MONTHS OF THE RECORD AND THEREFORE, THE PROVISION OF SECTION 94(7) ARE NOT A TTRACTED. 6. WE HAVE FURTHER NOTED THAT LD. COMMISSIONER (APPEAL S), DESPITE HOLDING THAT THIS FACT OF HOLDING PERIOD OF THE ALLEGED S CRIPTS WERE NOT DISPUTED BY ASSESSING OFFICER IN ALL HIS FAIRNESS, DIRECTED THE ASSESSING OFFICER TO VERIFY THE FACT AND ALLOWED THE REVISED CLAIM OF ST CL. THEREFORE, WE DO ITA NO. 4767 MUM 2018-SHRI KAMAL KHETAN 5 NOT FIND ANY VIOLATION OF PROVISIONS OF SECTION 25( 1) OF THE ACT. NO CONTRARY FACT OR LAW IS BROUGHT TO OUR NOTICE TO TA KE ANY CONTRARY VIEW. THEREFORE, WE DO NOT FIND ANY MERITS IN THE GROUNDS OF APPEAL RAISED BY REVENUE. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COUR T ON 06/08/2019,WHILE HEARING THE APPEAL. SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 06.08.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR H BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR TAT, MUMBAI