TRUPTI D. BHANSALI, MUMBAI V. ACIT 25(2)(2), MUMBAI

ITA 5453/MUM/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56122 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 21-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 29-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARTHA SARATHI NAIK
• Assessee Lawyers: AJAY R SINGH
• Keywords: Business income
• Section: 234B; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI. B.R. MITTAL (JM) AND SHRI. J. SUDHAKAR REDDY (AM) ITA NO.5453/MUM/2008 ASSESSMENT YEAR: 2005-2006 SMT. TRUPTI D. BHANSALI, DARSHAN NO.2, BLOCK NO.3, CHANDAVARKAR LANE, BORIVALI (W), MUMBAI 400 092. PAN: AADPB8586D VS. ASST. COMMISSIONER OF INCOME-TAX-25(2)(2), C-11, BLDG, 1 ST FLOOR, PRATAAKSH KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400021. (APPELLANT) (RESPONDENT) ITA NO.859/M/2010 ASSESSMENT YEAR: 2006--2007 DY. COMMISSIONER OF INCOME - TAX - 25(2), C-11, BLDG, 1 ST FLOOR, PRATAAKSH KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400051. VS. SMT. TRUPTI D. BHANSALI, DARSHAN NO.2, BLOCK NO.3, CHANDAVARKAR LANE, BORIVALI (W), MUMBAI 400 092. PAN: AADPB8586D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AJAY R. SINGH RESPONDENT BY: SHRI PARTHASARATHI NAI K (DR) DATE OF HEARING:21/12/2011 DATE OF PRONOUNC EMENT:29.12.2011 ORDER PER BENCH: ASSESSEE HAS FILED THE APPEAL FOR ASSESSMENT YEAR 2005-06 AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), DATED 13/6/2008 ON FOLLOWING GROUNDS: 2 ITA NO. 5453/M/2008 ITA NO.859/M/2010 1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE PROFITS SHOWN BY THE ASSESSEE ON SHARES / MUTUAL FU NDS ARE TO BE ASSESSED UNDER HEAD CAPITAL GAIN OR BUSINESS INCOME ? 2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE DISALLOWANCE OF INTEREST OF RS. 5,11,315/- U/S 14A IS JUSTIFIED OR NOT? 3) WHETHER LD. CIT (A) HAS ERRED IN NOT CONSIDERING LO NG TERM CAPITAL LOSS ON SALE OF RESIDENTIAL PREMISES AMOUNT ING TO RS. 33,82,581/-. 4) WHETHER LEVY OF INTEREST U/S 234A, 234B AND 234C IS JUSTIFIED OR NOT? 2. IN RESPECT OF ASSESSMENT YEAR 2006-07, DEPARTMEN T HAS FILED THE APPEAL AGAINST THE ORDER OF LD. CIT (A), DATED 13/11/2009 AND ONLY ISSUE INVOLVED IS WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, LD. CIT (A) HAS ERRED TO HOLD THAT ASSESSEE INDULGED IN INVESTMENT IN SHARES AND NOT IN SHARE TRADING BUSINESS. 3. AT THE TIME OF HEARING LEARNED REPRESENTATIVES O F BOTH THE PARTIES STATED THAT FACTS IN BOTH ASSESSMENT YEARS ARE SAME BUT LD . CIT (A) IN THE ASSESSMENT YEAR 2005-06 HELD THAT SHARE TRANSACTION S ARE IN THE NATURE OF BUSINESS ACTIVITY OF THE ASSESSEE AND WHEREAS IN TH E ASSESSMENT YEAR 2006- 07 CONSIDERED THE SHARE TRANSACTIONS AS INVESTMENT. HENCE, THE ASSESSEE HAS FILED APPEAL FOR ASSESSMENT YEAR 2005-06 AGAINST TH E ORDER OF LD. CIT (A) AND DEPARTMENT HAS FILED APPEAL FOR ASSESSMENT YEAR 200 6-07 AGAINST ORDER OF LD. CIT (A). 4. IT WAS FURTHER SUBMITTED THAT LD. CIT (A) IN ASS ESSMENT YEAR 2005-06 FOLLOWED HIS ORDER FOR ASSESSMENT YEAR 2004-05 TO H OLD THAT ASSESSEE IS INDULGED IN SHARE TRADING ACTIVITY. LEARNED AUTHORI ZED REPRESENTATIVE 3 ITA NO. 5453/M/2008 ITA NO.859/M/2010 SUBMITTED THAT ON SIMILAR ISSUE THE ASSESSEE FILED APPEAL FOR ASSESSMENT YEAR 2004-05 BEFORE THE TRIBUNAL BEING ITA NO.5925/M/200 7 AND THE TRIBUNAL BY ITS ORDER DATED 9/9/2011 SET ASIDE SAID ORDER OF LD . CIT (A) BY RESTORING THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR PA SSING FRESH ORDER AFTER NECESSARY EXAMINATION IN THE LIGHT OF OBSERVATIONS MADE IN THE SAID ORDER. HE FURNISHED A COPY OF SAID ORDER OF TRIBUNAL DATED 9/ 9/2011 TO SUBSTANTIATE HIS SUBMISSION. HE FURTHER SUBMITTED THAT ASSESSING OF FICER DISALLOWED ENTIRE CLAIM OF EXPENSES U/S 14A OF THE ACT FOR ASSESSMENT YEAR 2005-06 AND LD. CIT (A) DID NOT ADJUDICATE THIS ISSUE AS WELL AS OT HER ISSUES RAISED BY THE ASSESSEE IN HER APPEAL VIZ., THE LONG TERM CAPITAL LOSS ON SALE OF RESIDENTIAL PREMISES ETC. 5. LEARNED REPRESENTATIVES OF BOTH THE PARTIES SUBM ITTED THAT THE MATTER SHOULD BE RESTORED TO ASSESSING OFFICER FOR BOTH AS SESSMENT YEARS UNDER CONSIDERATION TO DECIDE THE ISSUE INVOLVED, AFRESH IN VIEW OF ABOVE ORDER OF TRIBUNAL DATED 9/9/2011. 6. IN VIEW OF ABOVE SUBMISSIONS OF LEARNED REPRESEN TATIVES OF BOTH THE PARTIES AND ALSO CONSIDERING TRIBUNALS ORDER DATED 9/9/2011 IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 (SUPRA), WE AG REE WITH LEARNED REPRESENTATIVES AND SET ASIDE THE ORDERS OF AUTHORI TIES BELOW FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION AND RESTORE TH E ISSUES INVOLVED IN BOTH THE APPEALS TO THE ASSESSING OFFICER WITH A DIRECTI ON TO DECIDE THE SAME AFRESH AFTER CONSIDERING SUCH EVIDENCES / DOCUMENTS AS MAY BE FILED BEFORE HIM AND AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSE SSEE IN ACCORDANCE WITH LAW. 4 ITA NO. 5453/M/2008 ITA NO.859/M/2010 7. IN VIEW OF ABOVE, APPEALS OF THE ASSESSEE AS WEL L AS OF DEPARTMENT BOTH ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.12.2011 SD/- SD/- (J. SUDHAKAR REDDY) (B.R. MITTA L) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 29 TH DECEMBER, 2011 OKK* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-CONCERNED 4. COMMISSIONER OF INCOME TAX, CONCERNED 5. DEPARTMENTAL REPRESENTATIVE, BENCH E, MUMBAI TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI