ASST CIT 16(2), MUMBAI V. MALA RAVI CHADHA, MUMBAI

ITA 6001/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8619 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 09-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 10-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNALH BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM /I.T.A. NO.6001/MUM/2013 ( / ASSESSMENT YEAR: 2010-11) ASSISTANT COMMISSIONER OF INCOME TAX 16(2) 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI - 400007 / VS. SMT. MALA R. CHADHA 4 TH FLOOR, ORICON HOUSE, K. DUBHASH ROAD, FORT, MUMBAI - 400023 ./ ./PAN/GIR NO. ACTPC2397K ( /APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 09.01.2017 /DATE OF PRONOUNCEMENT: 10.02.2017 / O R D E R PER AMARJIT SINGH, JM: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 26.07.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-27, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y.2010- 11. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN IN LAW, THE LD. CIT(A) ERRED IN TREATING THE TRANSACTION OF REVENUE BY: SHRI M. C. OMI NINGSHEN ASSESSEE BY: SHRI HITEN VASANT ITA NO.6001.M.13 A.Y. 2010-11 2 PURCHASE AND SALE OF SHARES AS SHORT TERM CAPITAL GAIN INSTEAD OF BUSINESS INCOME. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME FOR A.Y.2010-11 ON 30.09.2010 DECLARING TOTAL INCOME TO THE TUNE OF RS.43,66,494/-. THE RETURN WAS PROCESSED U/S.143(1) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S.143(2) OF THE ACT DATED 30.08.2011 WAS ISSUED AND SERVED UPON THE ASSESSEE. NOTICE U/S.142(1) OF THE ACT DATED 17.07.2012 WAS ALSO ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE WAS A BROKER AND DERIVING INCOME FROM BUSINESS / PROFESSION, CAPITAL GAIN AND OTHER SOURCES. ON VERIFICATION OF THE RETURN, IT WAS FOUND THAT THE ASSESSEE SHOWED THE INCOME FROM CAPITAL GAIN MAINLY BY DEALING IN SHARES AND SECURITIES BESIDES SPECULATION PROFIT / LOSS AND INCOME FROM OTHER SOURCES. THE ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAIN TO THE TUNE OF RS.64,72,899/-, INCOME FROM BUSINESS TO THE TUNE OF RS.34,42,380/- AND INCOME FROM OTHER SOURCES OF RS.9,24,114/-. THE ASSESSEE WAS INVOLVED MAINLY IN SHARE TRANSACTION. ON SEEN THE ACTIVITIES OF THE ASSESSEE AND IN VIEW OF THE DETAILED DISCUSSION IN THE ASSESSMENT ORDER THE ASSESSING OFFICER TREATED THE SHORT TERM CAPITAL GAIN TO THE TUNE OF RS.64,72,899/- AS BUSINESS INCOME OF THE ASSESSEE AND ACCORDINGLY TAXED. FEELING AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO TREATED THE INCOME OF THE ASSESSEE AS SHORT TERM CAPITAL GAIN WHILE DISSENTING WITH THE VIEW OF ASSESSING OFFICER. FEELING AGGRIEVED THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. ITA NO.6001.M.13 A.Y. 2010-11 3 ISSUE NO.1:- 3. THE REVENUE HAS TOOK THE PLEA THAT THE CIT(A) WAS WRONG IN DEALING THE INCOME OF THE ASSESSEE AS SHORT TERM CAPITAL GAIN WHILE THE INCOME OF THE ASSESSEE WAS RIGHTLY ASSESSED BY THE ASSESSING OFFICER AS BUSINESS INCOME AND WAS ACCORDINGLY TAXED. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS ARGUED THAT WHILE DECIDING THIS ISSUE THE CIT(A) HAS RELIED UPON THE ORDER OF THE CIT(A) OF THE DATED 12.12.2011 A.Y.2008-09. IN THE ASSESSEES OWN CASE WRONGLY WHEREAS THE ASSESSING OFFICER HAS RIGHTLY DECIDED THE TRANSACTION OF THE ASSESSEE TO DEAL THE INCOME AS BUSINESS INCOME HENCE THE ORDER OF THE CIT(A) IS WRONG AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. IT IS ARGUED THAT IN THE SAID CIRCUMSTANCES THE INCOME OF THE ASSESSEE IS NOT LIABLE TO BE TREATED AS SHORT TERM CAPITAL GAIN WHICH IS INFACT LIABLE TO BE TREATED AS BUSINESS INCOME. HOWEVER, ON THE OTHER HAND THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS REFUTED THE SAID CONTENTIONS AND ARGUED THAT THE INCOME OF THE ASSESSEE FROM THE SHARE TRANSACTION WAS BEING DEALT BY THE REVENUE FROM THE LAST PROCEEDING YEARS AS INCOME FROM SHORT TERM CAPITAL GAIN, THEREFORE, THE ORDER OF THE CIT(A) IS QUITE LEGAL WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. IT IS ALSO ARGUED THAT THE HONBLE INCOME TAX APPELLATE TRIBUNAL HAS CONFIRMED THE ORDER PASSED BY THE CIT(A) DATED 12.12.2011 FOR THE A.Y.2008-09 IN THE ASSESSEES OWN CASE, THEREFORE, THE CASE OF THE ASSESSEE IS DULY COVERED BY THE ITA NO.1672/M/2012 DATED 11.09.2013 TITLED AS ASSISTANT COMMISSIONER OF INCOME TAX 16(2) VS. SMT. MALA R. CHADHA, THEREFORE, THE ORDER PASSED BY THE CIT(A) IS CORRECT AND IS IN ACCORDANCE WITH LAW. BY GIVING THE CAREFUL THOUGHTS TO THE ARGUMENTS ADVANCED BY THE LEARNED REPRESENTATIVE OF THE ITA NO.6001.M.13 A.Y. 2010-11 4 PARTIES AND BY PERUSING THE RECORD CAREFULLY IT CAME INTO THE NOTICE THAT THE CIT(A) HAS PASSED THE ORDER ON THE BASIS OF THE FINDING OF HIS LEARNED PREDECESSOR IN WHICH THE CONTROVERSY HAS BEEN DECIDED ON 12.12.2011 FOR THE A.Y.2008-09. IN THE SAID ORDER THE CIT(A) HAS TREATED THE TRANSACTION AS SHORT TERM CAPITAL GAIN INSTEAD OF INCOME FROM BUSINESS. THE FINDING OF THE CIT(A) IS HEREBY REPRODUCED AS UNDER:- 2.4.3 AS EVEN IN THE IMPUGNED APPEAL, THE FACTS OBTAINING ARE SAME AS IN THE PREVIOUS YEAR WHERE AFTER DETAILED DISCUSSION, MY LEARNED PREDECESSOR HAS ALLOWED THE GROUND IN FAVOUR OF THE APPELLANT, RESPECTFULLY FOLLOWING THE SAME, GROUND NO.1 IS ALLOWED. ON APPRAISAL OF THE ABOVE SAID FINDING, IT IS NOT IN DISPUTE THAT THE INCOME OF THE ASSESSEE HAS BEEN TREATED AS SHORT TERM CAPITAL GAIN BY OBSERVING HIS TRANSACTION ON RECORD SPECIFICALLY IN THE CIRCUMSTANCES WHEN THERE IS NO CHANGE OF BUSINESS OF THE ASSESSEE. THE FACTS AND CIRCUMSTANCE OF THE CASE IS NOT QUITE DIFFERENT. THE TRANSACTION OF THE ASSESSEE WAS BEING DEALT BY THE REVENUE AS SHORT TERM CAPITAL GAIN INSTEAD OF INCOME FROM BUSINESS. THE ORDER PASSED BY THE CIT(A) FOR THE A.Y.2008-09 DATED 12.12.2011 HAS BEEN CONFIRMED BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN THE ASSESSES OWN CASE IN ITA NO.1672/M/2012 DATED 11.09.2013 TITLED AS ASSISTANT COMMISSIONER OF INCOME TAX 16(2) VS. SMT. MALA R. CHADHA. NO MATERIAL WAS PRODUCED TO DIFFERENTIATE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. IN VIEW OF THE SAID CIRCUMSTANCES WE ARE OF THE VIEW THAT THE CIT(A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH IS NOT REQUIRED TO BE INTERFERE WITH AT THIS APPELLATE STAGE. ITA NO.6001.M.13 A.Y. 2010-11 5 4. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH FEBRUARY, 2017 . SD/- SD/- (D.KARUNAKARA RAO) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 10 TH FEBRUAR, 2017 MP / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI