DCIT CC 23, MUMBAI V. VARSHA J ASHAR, MUMBAI

ITA 953/MUM/2011

• Counselvise Citation: 95319914 RSA 2011
• Duration Of Justice: 2 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 02-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R PRASAD
• Keywords: Rule of consistency

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI .. , ! ' # $$, % ', & BEFORE SHRI R.S.SYAL, AM AND SHRI SANJAY GARG, JM ITA NO.953/MUM/2011 : ASST.YEAR 2007-2008 THE ASST.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 23 MUMBAI. SMT.VARSHA J.ASHAR 62-A MOUNT UNIQUE, 4 TH FLOOR PEDDAR ROAD, MUMBAI 400 026. PAN : AFYPA2473E. ( '( / // / APPELLANT) * * * * / VS. ( +,'(/ RESPONDENT) '( - -- - . . . . / APPELLANT BY : SHRI R.R.PRASAD +,'( - . - . - . - . / RESPONDENT BY : SHRI SATISH R.MODY * - /! / / / / DATE OF HEARING : 20.08.2013 012 - /! / DATE OF PRONOUNCEMENT : 23.08.2013 ' 3 ' 3 ' 3 ' 3 / / / / O R D E R PER R.S.SYAL (AM) : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 14.1 0.2010 IN RELATION TO THE ASSESSMENT YEAR 2007-2008. 2. THE ONLY ISSUE IS AGAINST THE TREATMENT OF INCOM E OF ` 41,25,225 FROM SALE OF SHARES. SHORN OFF UNNECESSARY DETAILS IT IS NOTICED THAT THE ASSESSEE EARNED INCOME FROM SALE OF SHARES AMOUNTIN G TO ` 41.25 LAKH WHICH WAS TREATED BY HER AS SHORT TERM CAPITAL GAIN . THE ASSESSING OFFICER CAME TO THE CONCLUSION AFTER CONSIDERING CE RTAIN DETAILS THAT THIS AMOUNT OF RS.41.25 LAKH WAS LIABLE TO BE CONSI DERED AS `BUSINESS ITA NO.953/MUM/2011. SMT.VARSHA J.ASHAR. 2 INCOME AND NOT SHORT TERM CAPITAL GAIN. THE LEARNE D CIT(A) OVERTURNED THE ASSESSMENT ORDER ON THIS POINT. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT TH E LEARNED CIT(A) HAS RECORDED A CATEGORICAL FINDING ON PAGE 12 OF THE IM PUGNED ORDER THAT IN THE EARLIER YEARS SUCH PROFIT ON SHORT TERM CAPI TAL ASSET WAS TREATED AS SHORT TERM CAPITAL GAIN. THE LEARNED AR HAS PLAC ED ON RECORD COPY OF THE ORDER PASSED BY THE ASSESSING OFFICER U/S 14 3(3) IN RESPECT OF THE IMMEDIATELY SUCCEEDING ASSESSMENT YEAR I.E. 200 8-2009 IN WHICH INCOME FROM SALE OF SHARES UNDER SIMILAR CIRCUMSTAN CES DECLARED AS SHORT TERM CAPITAL GAIN HAS BEEN ACCEPTED AS SUCH. A COPY OF SUCH ASSESSMENT ORDER DATED 31.12.2010 HAS BEEN PLACED ON RECORD. THE LEARNED AR DREW OUR ATTENTION TO THE FACT THAT THE NUMBER OF SHARES DEALT WITH IN THE INSTANT YEAR IS LESS THAN THOSE I N THE SUCCEEDING ASSESSMENT YEAR. WE FIND THAT THE HONBLE JURISDIC TIONAL HIGH COURT IN THE CASE OF CIT V. GOPAL PUROHIT [(2011) 336 ITR 287 (BOM.)] HAS EMPHASIZED ON THE PRINCIPLE OF CONSISTENCY. IN THIS CASE THE HONBLE HIGH COURT, DEALING WITH SIMILAR ISSUE, HELD THAT : THERE OUGHT TO BE UNIFORMITY IN TREATMENT AND CONSISTENCY WHEN THE FA CTS AND CIRCUMSTANCES ARE IDENTICAL. AS INCOME FROM SALE OF SHARES HAS BEEN CONSISTENTLY ACCEPTED AS SHORT TERM CAPITAL GAIN IN PRECEDING AND SUCCEEDING YEARS, WE SEE NO REASON FOR OBSERVING DE PARTURE FOR THE CURRENT YEAR. RESPECTFULLY FOLLOWING THE PRECEDENT, WE UPHOLD THE IMPUGNED ORDER. ITA NO.953/MUM/2011. SMT.VARSHA J.ASHAR. 3 4. 4 /5 6 !4# - #/ 78 IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 23 RD DAY OF AUGUST, 2013. ' 3 - 012 9'*5 1 - $ SD/- SD/- (SANJAY GARG) (R.S.SYAL) % ' % ' % ' % ' / JUDICIAL MEMBER ! ' ! ' ! ' ! ' / ACCOUNTANT MEMBER MUMBAI ; 9'* DATED : 23 RD AUGUST, 2013. DEVDAS* ' 3 - +%/:; < ;2/ ' 3 - +%/:; < ;2/ ' 3 - +%/:; < ;2/ ' 3 - +%/:; < ;2// COPY OF THE ORDER FORWARDED TO : 1. '( / THE APPELLANT 2. +,'( / THE RESPONDENT. 3. = () / THE CIT, MUMBAI. 4. = / CIT(A) 40, MUMBAI. 5. ;@$ +%/%* , , / DR, ITAT, MUMBAI 6. $A / GUARD FILE. ' 3* ' 3* ' 3* ' 3* / BY ORDER, ,;/ +%/ //TRUE COPY// B B B B/ // /7 # 7 # 7 # 7 # ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI