Vandana Poddar, Bangalore V. DCIT, Bangalore

ITA 943/BANG/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5375 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-04-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 23-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P TIWARI CHARTERED ACCOUNTA NT
• Keywords: Business income; Capital Gains
• Section: 154

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE DR. O.K NARAYANAN, VICE PRESIDENT AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO.9 43/BANG/2009 (ASST. Y EAR -2006-07) SMT. VANDANA PODDAR, 487, 10 TH CROSS, RMV EXTENSION, SADASHIVNAGAR, BANGALORE. . APPELLANT VS. THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 1(1), BANGALORE. . RESPONDENT APPELLANT BY : SHRI P.TIWARI, CHARTERED ACCOUNTA NT RESPONDENT BY : SMT. V.S SREELEKHA, ADDL. COMMISSI ONER OF INCOME-TAX O R D E R PER DR. O.K NARAYANAN, VICE PRESIDENT THIS APPEAL IS FILED BY THE ASSESSEE. THE RELEVAN T ASSESSMENT YEAR IS 2006-07. THE APPEAL IS DIRECTED AGAINST TH E ORDER PASSED BY THE CIT(A) VI AT BANGALORE DATED 25/5/2009 DISMIS SING THE PETITION FILED BY THE ASSESSEE U/S 154. ITA NO.943/B/09 2 2. ORIGINALLY, THE FIRST APPEAL IN THE PRESENT CASE WAS HEARD AND DISPOSED THROUGH THE ORDER DATED 11.2.2009. THEREA FTER, THE ASSESSEE FILED A PETITION U/S 154 SEEKING RECTIFICATION OF T HE SAID ORDER FOR THE SUCCESSOR COMMISSIONER. THE CASE OF THE ASSESSEE I S THAT IN THE APPEAL FILED BEFORE THE COMMISSIONER, THE CONTENTIO N OF THE ASSESSEE WAS THAT THE ENTIRE SUM OF RS.17,50,049/- WAS TO BE TREATED AS SHORT AND LONG TERM CAPITAL GAINS AS CLAIMED BY THE ASSES SEE IN THE RETURN OF INCOME. IT IS FURTHER THE CASE OF THE ASSESSEE THA T THE ISSUE WAS DISCUSSED IN DETAIL BEFORE THE CIT(A) AT THE TIME O F HEARING BUT THE RELIEF GIVEN BY THE CIT(A) WAS CONFINED TO AN AMOUN T OF RS.3,78,763/- IN THE NATURE OF SHORT-TERM CAPITAL G AINS. ACCORDING TO THE ASSESSEE, THIS ORDER IS AGAINST THE CONCLUSION ARRIVED AT IN THE COURSE OF HEARING AND, THEREFORE, A MISTAKE APPAREN T ON RECORD. THE CIT(A) FOUND THAT ALL THESE MATTERS ARE DEBATABLE AND CANNOT BE CORRECTED THROUGH A PROCEEDINGS U/S 154. ACCORDING LY, HE REJECTED THE PETITION FILED BY THE ASSESSEE. THE ASSESSEE IS AG GRIEVED AND, THEREFORE, THIS APPEAL BEFORE US. 3. THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL R EAD AS BELOW: ITA NO.943/B/09 3 (I) THE LEARNED CIT(A) VI WAS NOT JUSTIFIED IN REJECTING THE MISC. PETITION MADE BY THE APPELLA NT U/S 154 OF THE INCOME-TAX ACT ON THE GROUND THE MISTAKE SOUGHT TO BE RECTIFIED WAS NOT APPARENT ON THE RECORDS. (II) THE LEARNED CIT(A) ERRED IN CONCLUDING THAT THE APPELLANT HAD NOT PRESSED THE GROUND ON TREATMENT OF LONG TERM CAPITAL GAIN AS BUSINESS INCOME, MERELY ON THE GROUND THAT THERE WAS NO MENTION OF THE AMOUNT IN WRITTEN SUBMISSION THOUGH THE DUE GROUNDS WERE TAKEN IN APPEAL. (III) THE LEARNED CIT(A) VI HAD ERRED IN NOT RECTIFYING THE ORDER WHEN HIS PREDECESSOR HAD CLEARLY GIVEN THE DECISION IN HIS APPELLATE ORDER A ND GROUNDS OF DECISION IN PARA 13 THAT THE CHANGE OF HEAD BY THE A.O IS BROUGHT TO STATUS QUO ON THE GROUND CAPITAL GAINS TREATED AS BUSINESS INCOME. 4. WE HEARD BOTH THE SIDES IN DETAIL. THE CASE OF THE ASSESSEE IS THAT IN SPITE OF THE DISCUSSIONS MADE IN THE COURSE OF HEARING, THE QUANTUM OF RELIEF GRANTED BY THE CIT(A) HAS BEEN IN SUFFICIENT. THIS CANNOT BE A MATTER OF RECTIFICATION THAT TOO BEFORE ANOTHER SUCCESSOR COMMISSIONER. SECONDLY AS PUT IN BY THE COMMISSION ER IN HIS ORDER, ITA NO.943/B/09 4 THE ISSUE IS HIGHLY DEBATABLE. THEREFORE, HE HAS R IGHTLY REJECTED THE PETITION FILED BY THE ASSESSEE U/S 154. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED ON MONDAY , THE 26TH DAY OF APRIL, 2010, AT BANGALORE. SD/- SD/- (GEORGE GEORGE K) (DR. O.K NARAYANAN ) JUDICIAL MEMBER V ICE PRESIDENT VMS. COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF 7..GF, ITAT, NEW DELHI. BY ORDER ASST. REGISTRAR, ITAT, BANGALOR E.