ACIT 9(3), MUMBAI V. VIJAY BIYANI, MUMBAI

ITA 8139/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9324 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 05-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MANJUNATH KARKIHALLI
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Business income
• Section: 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI . . !'#$ , % &' BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI N.K. BILLAIYA, AM ./I.T.A. NO.8139/MUM/2011 ( ( ( ( ( / ASSESSMENT YEAR : 2008-09 THE ACIT 9(3), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. SHRI VIJAY BIYANI, A-402, JUPITER, VASANT GALAXI, GOREGAON (W), MUMBAI-400 090 ') % ./ *+ ./PAN/GIR NO. : AAHPB 4183G ( ), /APPELLANT ) .. ( -.), / RESPONDENT ) ), / / APPELLANT BY: DR. MANJUNATH KARKIHALLI -.), 0 / / RESPONDENT BY : SHRI SANJIV M. SHAH 0 12% / DATE OF HEARING : 19.11.2012 34( 0 12% / DATE OF PRONOUNCEMENT : 23.11.2012 &5 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED U/S. 154 OF THE ACT BY LD. CIT(A)-20, MUMBAI DT.20.10.20 11 PERTAINING TO A.Y.2008-09. 2. THE SHORT ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD. CIT(A) OUGHT NOT TO HAVE ALLOWED CREDIT FOR REBATE U/S. 88-E AT RS. 5,81,593/-. 3. THE FACTS SUGGESTS THAT FOR THE YEAR UNDER CONSI DERATION, SHORT TERM CAPITAL GAIN HAVE BEEN TAXED AS BUSINESS INCOME UND ER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. THEREFORE, WE FAI L TO UNDERSTAND WHY THE ASSESSEE IS DENIED OF TAX REBATE U/S. 88-E OF THE A CT ON PAYMENT OF STT AS ITA NO.8139/MUM/2011 2 THE INCOME OF THE ASSESSEE HAVE BEEN TAXED UNDER TH E HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. WE DO NOT FIND ANY ERRO R OR FLOW IN THE DIRECTIONS OF THE LD. CIT(A) WHO DIRECTED THE AO TO ALLOW REBA TE U/S. 88-E OF THE ACT AT RS. 5,81,593/-. THE ISSUE RAISED BY THE REVENUE AL SO BECOMES OTIOSE AS THE AO HIMSELF HAS GIVEN CREDIT FOR REBATE OF STT AT RS . 5,81,593/- WHILE GIVING APPEAL EFFECT TO THE ORDER OF THE LD. CIT(A) AS EXH IBITED AT PAGE-10 OF THE PAPER BOOK. IN THE LIGHT OF THE ABOVE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDING OF THE LD. CIT(A) WHICH ARE CONFIRMED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 6 17 *' 0 8 %6* 0 *1 9# ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD NOVEMBER, 2012 . &5 0 4( % 8 :&7 23.11.2012 4 0 ; SD/- SD/- (H.L. KARWA) (N.K. BILLAIYA) /PRESIDENT % &' / ACCOUNTANT MEMBER MUMBAI; :& DATED / /2012 . . ./ RJ , SR. PS &5 &5 &5 &5 0 00 0 -1! -1! -1! -1! ; -1 , , / DR, ITAT, MUMBAI 6. ;? / GUARD FILE. &5 &5 &5 &5 / BY ORDER, .!1 -1 //TRUE COPY// @ @@ @ / 9 9 9 9 * * * * (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI