ACIT, New Delhi V. Smt. Kusum Ashok Bhojwani, New Delhi

ITA 4957/DEL/2011

• Counselvise Citation: 495720114 RSA 2011
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SACHIN VASUDEVA
• Assessee Lawyers: GAURAV DUDEJA
• Keywords: Additional evidence; Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : D NEW DELHI BEFORE SHRI I.C. SUDHIR, J.M. AND SHRI J.SUDHAKAR REDDY, A.M. ITA NO. 4957 /DEL/20 11 ASSESSMENT YEAR : 200 7 - 08 ACIT, CIRCLE 32(1) VS. SMT. KUSUM ASHOK BHOJWANI ROOM NO.376 A, CR BLDG. 7, NIZAMUDDIN EAST IP ESTATE, N.DEL NEW DELHI PAN: AAGPB 5882 R C.O. NO.395/DEL/2011 (IN ITA NO. 4957 /DEL/20 11) ASSESSMENT YEAR : 200 7 - 08 SMT.KUSUM ASHOK BHOJWANI VS. ACIT CIRCLE 32(1) N.DEL N.DEL (APPELLANT) (RESPONDENT ) APPELLANT BY : - SHRI SACHIN VASUDEVA, C.A. RESPONDENT BY : - SH. GAURAV DUDEJA, SR.D.R. O R D E R PER J.SUDHAKAR REDDY, AM THIS APPEAL IS FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD.CIT(APPEALS) - XXVI, DELHI DT. 2 4.08.2011 PERTAINING TO THE AY 200 7 - 08 . THE CROSS OBJECTION IS FILED BY THE ASSESSEE. 2. THE HON BLE DELHI HIGH COURT IN ITA 131/2014 VIDE JUDGEMENT DT. 30.7.2014, IN AN APPEAL BY THE REVENUE HAS AT PARA 12 HELD AS FOLLOWS. 12. THE SECOND ASPECT RELATES TO ADDITION OF TWO AMOUNTS OF RS.72,831/ - AND RS.65,500/ - BUT THE FACTS IN THIS REGARD ARE NOT VERY CLEAR. LD.COUNSEL FOR THE RESPONDENT ASSESSEE STATES THAT THE TRIBUNAL MAY DECIDE THE SECOND ASPECT AFRESH. WITH THE CONSENT OF THE PARTIES THE SECOND ISSUE IS REMITTED TO THE TRIBUNAL FOR FRESH DECISION AFTER NOTICING THE FACTS AND IF REQUIRED AFTER TAKING ADDITIONAL EVIDENCE ON RECORD CONSIDERING THE NATURE AND CHARACTER OF THE SCHEME IN QUESTION. AS FAR AS SECOND ASPECT IS CONCERNED, WE ARE NOT FRAMING ANY QUESTION OF LAW IN VIEW OF THE CONCESSION MADE BY THE COUNSEL FOR THE RESPONDENT ASSESSEE. THE APPEAL IS ACCORDINGLY DISPOSED OF. NO COSTS. ITA NO. 4957/DEL/2011 AY 2007 - 08 SMT.KUSUM ASHOK BHOJWANI, N.DEL 2 2.1. THUS THIS APPEAL IS BEFORE US. 3. SH. GAURAV DUDEJA, LD.SR.D.R. ON BEHALF OF THE REVENUE , SUBMITTED THAT THE ISSUE WHETHER THE AMOUNTS IN QUESTION ARE DIVIDEND OR NOT AND THE ISSUE WHETHER S.94(7) OF THE INCOME TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT ) APPLIES TO THE FACTS AND CIRCUMSTANCES OF THE CASE OR NOT, HAVE TO BE EXAMINED AFRESH BY THE AO AND HENCE THIS CASE MAY BE REMANDED TO THE AO. 4. SHRI SACHIN VASUDEVA, T HE LD.COUNSEL FOR THE ASSESSEE ON THE OTHER HAND STRONGLY OPPOSED THE CONTENTIONS AND SUBMITT ED THAT A PERUSAL OF THE DOCUMENTS DEMONSTRATES THAT , WHAT WAS RECEIVED BY THE ASSESSEE WAS DIVIDENDS AND THAT THE DIVIDENDS WERE REINVESTED AND THE ISSUE BEFORE THE TRIBUNAL IS ONLY WITH REGARD TO COMPUTATION OF CAPITAL GAINS AND HAS NOTHING TO DO WI TH THE PROVISIONS OF S.94(7) OF THE ACT. HE SPECIFICALLY DREW THE ATTENTION OF THE BENCH FROM PAGES 83 TO 91 OF THE PAPER BOOK AND ARGUED THAT DIVIDEND HA D BEEN DECLARED ON A DAILY BASIS AND THIS AMOUNT HAS BEEN REINVESTED. IT IS HIS CASE THAT THE PURCHA SE PRICE IS RS.75,65,497.96 IN THE CASE OF DSP LIQUID FUND AND THE SALE PRICE IS RS.75,65,50 0.29 RESULTING IN A SHORT TERM CAPITAL GAIN. SIMILARLY IN THE CASE OF HDFC CASH MANAGEMENT FUND SAVING PLAN AND DAILY DIVIDEND SCHEME, THE PURCHASE PRICE IS RS.75 ,7 2 ,83 0 .03 AND SALE PRICE IS RS.75,72,831.01 AND THE SHORT TERM CAPITAL GAIN IS 0.99. ON A QUERY FROM THE BENCH AS TO HOW THE DIVIDEND IN QUESTION IS TO BE TREATED AS EXEMPT U/S 10(34) OF THE ACT, IN THE ABSENCE OF INFORMATION THAT THE DIVIDEND IN QUESTIO N RECEIVED WAS FROM INVESTMENTS MADE BY THE FUNDS IN EQUITIES, THE LD.COUNSEL SUBMITTED THAT THE NECESSARY DETAILS WOULD BE FILED BEFORE THE TRIBUNAL. HE VEHEMENTLY CONTEN DED THAT THE ISSUE BEFORE THE TRIBUNAL IS DETERMINATION OF CAPITAL GAIN AND HENCE THE TRIBUNAL SHOULD NOT TRAVEL ANY FURTHER. HE OPPOSED THE SETTING ASIDE OF THE MATTER TO THE FILE OF THE ASSESSING OFFICER. 5. ON A CAREFUL CONSIDERATION OF RIVAL SUBMISSIONS, WE ARE OF THE CONSIDERED OPINION THAT THIS ISSUE SHOULD BE SET ASIDE TO THE FILE OF AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW, FOR THE REASON THAT ALL THE DETAILS ITA NO. 4957/DEL/2011 AY 2007 - 08 SMT.KUSUM ASHOK BHOJWANI, N.DEL 3 REQUIRED FOR ADJUDICATION ARE NOT ON RECORD. THE AO SHALL VERIFY THE NATURE OF DSP MUTUAL FUND AS WELL AS T HE NATURE OF HDFC CASH MANAGEMENT FUND AND DETERMINE THE CAPITAL GAINS IN QUESTION. AS THE ISSUE OF APPLICABILITY OF S.94(7) OF THE ACT IS NOT BEFORE US, WE HAVE NO JURISDICTION ON THIS ISSUE. 6. IN THE RESULT REVENUE S APPEAL IS TREATED AS ALLOWED FOR S TATISTICAL PURPOSES. 7. SINCE WE HAVE ALLOWED THE REVENUE S APPEAL, THE C.O. FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND IS DISMISSED AS SUCH. 8. IN THE RESULT, REVENUE S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AND ASSESSEE S C.O. IS DISMISSED. OR DER PRONOUNCED IN THE OPEN COURT ON 16 TH JANUARY, 2015 . SD/ - SD/ - ( I.C. SUDHIR ) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 16 TH JANUARY, 2015 *MANGA COPY OF THE ORDER FORWARDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR