C.Sivaprahasam, CHENNAI V. ITO, CHENNAI

ITA 719/CHNY/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8882 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: A S SIVARAMAN
• Keywords: Business income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C/SMC BENCH, CHENNAI . , ! BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.719/MDS/2013 ( / ASSESSMENT YEAR: 2009-10) MR. C.SIVAPRAHASAM, F-A-7, KAMARAJAR FLOWER MARKET, POSTAL AUDIT COLONY, KOYAMBEDU CHENNAI - 600 002. VS INCOME TAX OFFICER, BUSINESS WARD-V(2) CHENNAI-34. PAN: ASVPS4359K ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. A.S.SIVARAMAN, ADVOCATE /RESPONDENT BY : MR. A.V.SREEKANTH, JCIT /DATE OF HEARING : 17 TH JUNE, 2016 /DATE OF PRONOUNCEMENT : 1 ST JULY, 2016 / O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APP EALS- VIII), CHENNAI DATED 16.01.2013 IN ITA NO.95/11- 12/(A)-VIII PASSED UNDER SECTION143(3) R.W.S 250(6) OF THE ACT. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HIS A PPEAL, HOWEVER, THE CRUX OF THE ISSUE IS AS FOLLOWS:- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE ADDITION OF ` 27,45,000/- MADE BY THE LEARNED ASSESSING OFFICER UNDER THE HE AD SHORT TERM CAPITAL GAINS AS AGAINST INCOME FROM BUSINESS CLAIMED BY THE ASSESSEE. 2 ITA NO.719/MDS/2013 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED HIS RETURN OF INCOME FOR THE ASSES SMENT YEAR 2009-10 ON 29.05.2009 DECLARING INCOME OF ` 2,89,590/-. ON SCRUTINY, IT WAS REVEALED THAT THE ASSESSEE HAS SOL D A PROPERTY FOR RS.28,00,000/- BY VIRTUE OF THE POWER OF ATTORNEY BESTOWED ON HIM. HE HAD CLAIMED EXPENSES OF RS.12,00,000/- ON THE SALE OF THE PROPERTY AND DISC LOSED BUSINESS INCOME OF RS. 16,00,000/- . HOWEVER, THE L EARNED ASSESSING OFFICER OPINED THAT THE SALE TRANSACTION OF THE IMMOVABLE PROPERTY BY THE ASSESSEE HAS TO BE TREATE D AS SHORT TERM CAPITAL GAIN. THE ASSESSEE HAD ARGUED BE FORE THE LEARNED ASSESSING OFFICER THAT HE HAD ONLY ACTED AS AN INTERMEDIARY AND THEREBY EARNED PROFIT WHICH IS ONL Y A COMMERCIAL TRANSACTION AND THEREFORE IT SHOULD BE T REATED AS BUSINESS INCOME AND DEDUCTION SHOULD BE GRANTED FOR ALL OTHER EXPENSES INCURRED BY HIM. HOWEVER, THE LEARNE D ASSESSING OFFICER ASSESSED THE INCOME EARNED BY THE ASSESSEE AGAINST THE SALE OF IMMOVABLE PROPERTY AS SHORT TERM CAPITAL GAINS. 3 ITA NO.719/MDS/2013 4. WHEN THE BENCH QUERIED ABOUT THE CIRCUMSTANCES UNDER WHICH THE ASSESSEE HAS ENTERED INTO THE SALE TRANSACTION I.E., WHETHER THE IMMOVABLE PROPERTY WA S PURCHASED BY THE ASSESSEE AND SUBSEQUENTLY SOLD OR HE ONLY ACTED AS AN INTERMEDIARY, THE LEARNED AUTHORIZED REPRESENTATIVE COULD NOT PROVIDE PROPER EXPLANATION . FURTHER FROM THE MATERIALS ON RECORD, THESE FACTS COULD NOT BE ASCERTAINED. THEREFORE, THE LEARNED AUTHORIZED REPRESENTATIVE PLEADED THAT ONE MORE OPPORTUNITY MA Y BE GIVEN TO THE ASSESSEE TO PRESENT HIS CASE BEFORE TH E LEARNED ASSESSING OFFICER. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED TO THE SUBMISSIONS OF THE LEARNED AUTHORIZE D REPRESENTATIVE. 6. HOWEVER, LOOKING INTO THE FACTS AND CIRCUMSTANCE S OF THE CASE, I AM OF THE CONSIDERED VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO EXPL AIN THE CASE BEFORE THE REVENUE. ACCORDINGLY, IN THE INTERE ST OF 4 ITA NO.719/MDS/2013 JUSTICE, I HEREBY REMIT BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO CONSIDERATION. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 1 ST JULY, 2016 SD/- ( . ) ( A.MOHAN ALA NKAMONY ) # / ACCOUNTANT MEMBER % /CHENNAI, & /DATED 1 ST JULY, 2016 SOMU () *) /COPY TO: 1. APPELLANT 2. RESPONDENT 3. + () /CIT(A) 4. + /CIT 5. ) 0 /DR 6. /GF .