Mrs. Madhuri Sunil Kotecha, Jalgaon V. ACIT, Cir.-1, Jalgaon

ITA 591/PUN/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1980 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 09-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 591/PN/2011 (ASSESSMENT YEAR 2007-08) MADHURI SUNIL KOTECHA, 4 VARDHMAN NAGAR, JALGAON. .. APPELLANT PAN NO. AHPK 6577H VS. ACIT, CIRCLE, PUNE .. RE SPONDENT APPELLANT BY : NONE RESPONDENT BY : SHRI SANTOSH KUMAR DATE OF HEARING : 21-03-2013 DATE OF PRONOUNCEMENT : 22 -03-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 31-03-2011 OF THE CIT(A)-II, NASHIK RELATING TO ASSESSMENT YEA R 2007-08. 2. IT WAS NOTICED THAT THIS APPEAL WAS BEING FIXED FROM TIME TO TIME AND WAS LAST FIXED FOR HEARING ON 29-01-2013 AND AT THE REQUEST OF THE ASSESSEE THE CASE WAS ADJOURNED TO 20-03-2013. SINCE NOBODY APPEARED ON 20-03-2013 THE HEARING WAS ADJOURNED TO 21-03-2013. TODAY ALSO NOBODY APPEARE D. THEREFORE, THIS APPEAL IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECOR D AND AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE. 3. TREATMENT OF INCOME FROM PURCHASE AND SALE OF SH ARES AS BUSINESS INCOME BY THE ASSESSING OFFICER WHICH WAS UPHELD BY THE CIT(A) AS AGAINST CAPITAL GAIN BY THE ASSESSEE IS THE ONLY ISSUE IN THE GROUNDS OF APPEAL BY THE ASSESSEE. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS AN INDIVIDUAL ENGAGED IN TRADING OF SHARES. SHE FILED HER RETURN OF INCOME ON 08-06-2007 DECLARING TOTAL INCOME AT RS.17,03,467/- WHICH INCLUDES SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAIN APART FROM INCOME FROM OTHER SOURCES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE 2 ASSESSING OFFICER TREATED THE SHORT TERM CAPITAL GA IN OF RS.15,38,490/- AND LONG TERM CAPITAL GAIN OF RS.13,11,006/- AS BUSINESS INCOME. 5. IN APPEAL THE LEARNED CIT(A) UPHELD THE ACTION O F THE ASSESSING OFFICER FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE US. 6. AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND ON PERUSAL OF RECORDS WE FIND THE COORDINATE BENCH OF THE TRIBUNAL IN ASS ESSEES OWN CASE IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR HAS RESTORED THE ISSUE TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE AFRESH AFTER EXAMINING THE PRINCIPLE OF C ONSISTENCY AS CLAIMED BY THE ASSESSEE. SINCE FACTS OF THE IMPUGNED ASSESSMENT YEAR ARE IDE NTICAL TO THE FACTS IN THE IMMEDIATE PRECEDING ASSESSMENT YEAR 2006-07, THEREFORE, FOLLO WING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2006-07 WE RESTORE THE ISSUE TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THE DIREC TIONS GIVEN BY THE TRIBUNAL IN A.Y. 2006-07. NEEDLESS TO SAY THE LEARNED CIT(A) SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. W E HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLO WED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS, THE 22 ND DAY OF MARCH 2013. SD/- SD/- (R.S. PADVEKAR) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED THE 22 ND MARCH 2013 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-II, NASHIK 4. CIT-II, NASHIK 5. D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENI OR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE