ACIT ((3), MUMBAI V. GHISULAL D. RATHOD, MUMBAI

ITA 5092/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83854 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 22-09-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 30-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Assessee Lawyers: DHIREN K RATHORE
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'G' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO. 5092/MUM/2011 (ASSESSMENT YEAR: 2004-05) DCIT, CIRCLE - 9(3) VS. GHISULAL D. RATHOD ROOM NO. 229, 2ND FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 C/O. CELLO PLASTIC INDUSTIRES WORKS 5, VAKIL INDUSTRIAL ESTATE, WALBHAT ROAD, GOREGOAN (E), MUMBAI 400063 PAN - AAAPR5527K APPELLANT RESPONDENT APPELLANT BY: SHRI VIVEK BATRA RESPONDENT BY: SHRI DHIREN K. RATHORE & SHRI NITESH JOSHI DATE OF HEARING: 22.09.2014 DATE OF PRONOUNCEMENT: 22.09.2014 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-20, MUMBAI AND IT PERTAINS TO AY 2004-05. 2. THE ONLY GROUND URGED BY THE REVENUE READS AS UNDER : - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF ` 18,01,728 DISALLOWED BY THE ASSESSING OFFICER, OVERLOOKING THE FACT THAT THE AS SESSEE HAD PAID THE TAXES @10% ON LTCG COMPUTED WITHOUT INDEXATION OF I TS COST (BOOK GAIN) AT ` 15,30,144 INSTEAD OF ` 33,31,872. 3. FACTS NECESSARY FOR DISPOSAL OF THE APPEAL ARE STAT ED IN BRIEF. DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR U NDER CONSIDERATION ASSESSEE SOLD CERTAIN SHARES AND EARNED LONG TERM C APITAL GAINS. THERE ARE IN ALL 32 TRANSACTIONS. ASSESSEE DECLARED BOOK GAIN OF ` 11,84,425/- AND PAID TAX @ 10% UNDER SECTION 112 OF THE ACT. THE AO NOTI CED THAT THE BOOK GAIN WORKS OUT TO ` 33,31,872/- AND AFTER SET OFF OF CARRY FORWARD OF L TC LOSS OF ` 4,92,769/- ASSESSEE WAS TO PAY TAX OF A SUM OF ` 2,80,910/-. IN THE OPINION ITA NO. 5092/MUM/2011 GHISULAL D. RATHOD 2 OF THE AO, WHILE COMPUTING THE BOOK GAIN, ASSESSEE IS NOT ENTITLED TO ADJUST THE INDEXED LOSS. THEREFORE, IN THE PROCEEDINGS UND ER SECTION 148 OF THE ACT HE RECOMPUTED THE CAPITAL GAINS. 4. ON AN APPEAL FILED BY THE ASSESSEE THE LEARNED CIT( A) RELIED UPON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF ANUJ A. SHETH (HUF) 324 ITR 191 TO HOLD THAT THE 32 TRANSACTIONS ARE INDEPENDENT, AND ENTERED AT DIFFERENT POINTS OF TIME, AND HENCE THE ASSESSEE IS ENTITLED TO CLAIM SET OFF OF THE LOSS FROM OTHER SHARES. 5. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. AT THE T IME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE DE CISION OF THE HON'BLE BOMBAY HIGH COURT (SUPRA), WHEREIN IDENTICAL ISSUE WAS CONSIDERED AND THE HON'BLE COURT OBSERVED THAT THE BENEFIT OF SET OFF CANNOT BE DENIED TO ASSESSEE MERELY BECAUSE HE HAS OPTED TO BE TAXED UN DER SECTION 112 OF THE ACT IN RESPECT OF CERTAIN SHARES. 6. THE LEARNED D.R. COULD NOT POINT OUT THAT THE DECIS ION OF THE HON'BLE BOMBAY HIGH COURT IS NOT APPLICABLE TO THE FACTS OF THE CASE OR COULD HIGHLIGHT THAT A CONTRARY VIEW WAS TAKEN ON THIS MA TTER EITHER BY SUPREME COURT OR ANY HIGH COURT. 7. UNDER THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT T HE ORDER PASSED BY THE LEARNED CIT(A), BEING IN CONSONANCE WITH THE VIEW TAKEN BY THE HON'BLE BOMBAY HIGH COURT, DOES NOT CALL FOR ANY IN TERFERENCE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2014. SD/- SD/- (D. KARUNAKARA RAO) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 22 ND SEPTEMBER, 2014 ITA NO. 5092/MUM/2011 GHISULAL D. RATHOD 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 20, MUMBAI 4. THE CIT 9, MUMBAI CITY 5. THE DR, G BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.