ITO 25(2)(1), MUMBAI V. SHRI. JAGAT V. SHAH, MUMBAI

ITA 6027/MUM/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8937 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 17-01-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 06-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUSUM INVLE
• Keywords: Business income; Treatment of capital gains as business income
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH, MUMBAI BEFORE SHRI R.V. EASWAR, PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 6027/MUM/2008 (ASSESSMENT YEAR: 2003-04) INCOME TAX OFFICER - 25(2)(1) SHRI JAGAT V. SHAH C-11 BLDG., ROOM NO.106 B-603, PREM NAGAR NO. 6 P.K. BHAVAN, BANDRA (E) VS. M.C.F. UDYAN MARG, BORIVALI (W) MUMBAI 400051 MUMBAI 400092 PAN - AABPS 7624 K PAN - AABPS 7624 K APPELLANT RESPONDENT APPELLANT BY: SMT. KUSUM INVLE RESPONDENT BY: SHRI KUNAL GOKHALE O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF THE CIT(A) XXV, MUMBAI DATED 23.07.2008. 2. REVENUE HAS RAISED THREE GROUNDS ON THE ISSUE OF ` 31,50,000/- TREATED AS CAPITAL GAINS BY THE ASSESSEE AND CLAIME D DEDUCTION UNDER SECTION 54EC BUT NOT ALLOWED BY THE A.O. 3. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE PLACED ON RECORD THE ORDER OF THE ITAT IN ITA NO. 3522/MUM/20 07 FOR A.Y. 2003-04 WHEREIN THE ORDERS OF THE CIT UNDER SECTION 263 WER E CHALLENGED BY THE ASSESSEE AND THE ITAT, AFTER CONSIDERING SUBMISSION S, VACATED THE ORDER PASSED UNDER SECTION 263. THIS ORDER IN APPEAL IS C ONSEQUENTIAL ORDER PASSED AFTER THE ORIGINAL ASSESSMENT ORDER WAS SET ASIDE UNDER SECTION 263. SINCE THE PROCEEDINGS UNDER SECTION 263 ARE HELD TO BE BAD IN LAW AND THE ORDER WAS VACATED BY THE ITAT, THE CONSEQUENTIAL PR OCEEDINGS BECOME VOID. ACCORDINGLY, THERE IS NO NEED TO CONSIDER THE PRESE NT APPEAL. EVEN OTHERWISE THE ISSUE WAS CONSIDERED BY THE CIT(A) ON MERITS, F INDINGS OF WHICH WERE ALSO SIMILAR TO THE FINDINGS OF THE ITAT ON THE MER ITS OF TREATMENT OF CAPITAL GAINS AS BUSINESS INCOME. ITA NO. 6027/MUM/2008 SHRI JAGAT V. SHAH 2 4. IN VIEW OF THIS, AS THE APPEAL BECAME INFRUCTUOUS, THE APPEAL IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON AT THE TIME O F HEARING ON 17 TH JANUARY 2011. SD/- SD/- (R.V. EASWAR) (B. RAMAKOTAIAH) PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 17 TH JANUARY 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXV, MUMBAI 4. THE CIT XXV, MUMBAI CITY 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.