DCIT CIR 2, THANE V. KANTA G ACHHRA, ULHASNAGAR

ITA 6177/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3870 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 23-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 09-10-2012
• Court: TRIBUNAL
• Department Lawyers: VINITA MENON
• Assessee Lawyers: SUNIL MANDOLI
• Keywords: Business income; Rule of consistency
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A , MUMBAI BEFORE SHRI R.C.SHARMA , ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.6177/MUM/20 12 ASSESSMENT YEAR: 2005 - 06 ACIT, CC - 2, 2 ND FLOOR, MOHAN PLAZA, VAYALE NAGAR, KHADAKPADA, KALYAN,(W), THANE VS. SMT. KANTA G. ACHHRA, ACHHRA BUILDING, SECTION 17, ULHASNAGAR - 421003. (APPELLANT) (RESPONDENT) REVENUE BY : MS. VINITA MENON ASSESSEE BY : SHRI SUNIL MANDOLI DATE OF HEARING : 23.1 2.2016 DATE OF PRONOUNCEMENT : 17 .02.2016 O R D E R PER PAWAN SINGH, J M: 1. THE PRESENT APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER D ATED 14. 06.2012 OF THE CIT(A) - II , THANE FOR ASSESSMENT YEAR(AY) 2009 - 10 RAISING THE FOLLOWING SUBSTANTIAL G ROUNDS: (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C AS E AND IN LAW, THE CIT(A) - II, THANE ER R ED BY NOT APPRECIATING THAT THE AMOUNT RECEIVED ON SALE OF SHARE IS BUSINESS I N CO M E IN THE NATURE OF COMPENSATION FOR RELINQUISHMENT OF RIGHTS U/S 28(II) OF THE I.T. ACT, 1961 AND CONSEQUENTLY TREATING THIS AMOUNT AS CAPITAL GAINS. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) - II, THANE ERRED IN ALLOWING THE E XPENSES OF RS. 14,37,238/ - PAID BY THE ASSESSEE TO REMOVE ENCUMBRANCES DISREGARDING THE AOS FINDING THAT THESE EXPENSES ARE NOT DIRECTLY RELATED TO THE SALE OF SHARES. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME FOR AY - 2005 - 07 ON 31.03.2006 DECLARING TOTAL INCOME OF RS. 1,97,54,425/ - . THE ORDER OF ASSESSING OFFICER (AO) FURTHER REVEALED THAT A NOTICE U/S. 148 OF THE ACT FOR REOPENING OF THE ASSESSMENT WAS ISSUED TO THE ASSESSEE ON 19.03.2009 AND AFTER GIVING THE OPPORTUNITY ASSESSM ENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT WAS PASSED AND TREATED THE INCOME FROM CAPITAL GAIN AS A BUSINESS INCOME U/S. 28(2) OF THE ACT AND ASSESSED THE TOTAL INCOME OF ASSESSEE AT RS. 2,11,91645/ - , AGAINST WHICH THE PRESENT APPEAL WAS FILED BEFORE THE CIT(A) AND THE SAME WAS ALLOWED BY THE CIT(A) IN ITS ORDER DATED 14.06.2012 AGAINST WHICH THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE DEPARTMENTAL REPRESENTATIVE (DR) OF THE REVENUE AND AUTHORIZED REPRESENTATIVE (AR) OF THE ASSE SSEE. AT THE BEGINNING OF ARGUMENT, AR OF THE ASSESSEE HAS SUBMITTED THAT THE CASE OF ASSESSEE IS COVERED BY THE ORDER PASSED IN THE CASE OF HER HUSBAND AS THE IDENTICAL ADDITION WERE MADE BY THE AO IN RESPECT OF SAME AY WHILE PASSING THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT. 4. AGAINST WHICH THE HUSBAND OF THE ASSESSEE FILED AN APPEAL WHICH WAS ALLOWED BY THE SAME WORTHY CIT(A) , AGAINST WHICH THE REVENUE PREFERRED AN APPEAL BEFORE ITAT, MUMBAI, VIDE ITA NO. 4208/M/2009 AND THE SAME WAS DISPOSED OF VIDE ORDER DATED 06.10.2010, WHEREIN THE APPEAL OF THE REVENUE WAS DISMISSED. 5. DR FOR THE REVENUE HAS ADMITTED THAT NO FURTHER APPEAL IS FILED AGAINST THE ORDER IN ITA NO. 4208/M/2009. 6. WE HAVE CONSIDERED THE SUBMISSION OF THE AR OF THE ASS ESSEE AND PERUSED THE RECORD OF THE PRESENT APPEAL AND THE ORDER PASSED IN ITA NO. 4208/M/2009 AND FIND THAT CASE OF ASSESSEE IS SQUARELY COVERED BY THE FINDING OF CO - ORDINATE BENCH OF THIS TRIBUNAL AND RESPECTFULLY FOLLOWING THE ORDER OF CO - ORDINATE BENC H AND KEEPING IN VIEW THE PRINCIPLE OF CONSISTENCY, WE DO NOT FIND ANY MERIT IN THE PRESENT APPEAL AND THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER DATED 06.04.2010 IN ITA NO. 4208/M/2009. 7. IN THE RESULT, APPEAL FILED BY THE REVE NUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH FEBRUARY 2016 SD / - SD / - ( R.C. SHAREMA ) ( PAWAN SINGH ) ACCOUNTANT MEM BER JUDICIAL MEMBER MUMBAI ; DATED 17 /02/2016 S.K. PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY/