Bhoje Abhinandan Mahaveer, Kolhapur V. Additional Commissioner of Income-tax,

ITA 953/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1146 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 09-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Business income
• Section: 143(3)

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , !', $ % BEFORE SHRI VIKAS AWASTHY, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NO.953/PN/2014 ASSESSMENT YEAR : 2007-08 BHOJE ABHINANDAN MAHAVEER, BAZAR PETH, A/P HUPARI, KOLHAPUR 416 203. PAN : AFZPB7770E . APPELLANT VS. THE ADDL. COMMISSIONER OF INCOME TAX, ICHALKARANJI RANGE, ICHALKARANJI. . RESPONDENT / APPELLANT BY : SHRI M. K. KULKARNI / RESPONDENT BY : SHRI P. L. KUREEL / DATE OF HEARING : 08.08.2016 / DATE OF PRONOUNCEMENT: 08.08.2016 & / ORDER PER PRADIP KUMAR KEDIA, AM : THE CAPTIONED APPEAL FILED BY THE ASSESSEE IS AGAIN ST THE ORDER OF CIT(A), KOLHAPUR DATED 19.02.2014 RELATING TO ASSES SMENT YEAR 2007-08 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ASSESSEE RAISED MULTIPLE GRO UNDS OF APPEAL BUT THE SOLITARY ISSUE INVOLVED IS WHETHER PROFIT ARISING O N SALE OF SHARES IS IN THE NATURE OF CAPITAL GAIN OR A BUSINESS ACTIVITY. 2 ITA NO.953/PN/2014 3. THE RELEVANT FACTS, IN BRIEF, ARE THAT THE ASSES SEE IS ENGAGED IN THE MANUFACTURING OF SILVER ARTICLES ETC.. THE RETURN OF INCOME WAS FILED BY THE ASSESSEE DECLARING A TOTAL INCOME OF RS.90,13,800/- . IN THE COURSE OF SCRUTINY PROCEEDINGS UNDER SECTION 143(2), THE ASSESSING OFF ICER INTER-ALIA OBSERVED THAT SHORT TERM CAPITAL GAIN ON PURCHASE AND SALE O F SHARES HAVE BEEN DECLARED AT RS.97,03,285/-. THE ASSESSING OFFICER CALLED FO R THE DETAILS OF THE PURCHASE AND SALE TRANSACTIONS. ON EXAMINATIONS OF RECORDS FURNISHED BY THE ASSESSEE, THE ASSESSING OFFICER OBSERVED THAT IN VIEW OF THE FREQUENCY, DURATION OF HOLDING AND PAYMENT PATTERN ETC., THE CAPITAL GAIN SO DECLARED ARE REQUIRED TO BE ASSESSED AS BUSINESS INCOME OF THE ASSESSEE. ACCORDINGLY, HE TAXED SHORT TERM CAPITAL GAIN DECLARED ON SALE OF SHARES AS B USINESS INCOME OF THE ASSESSEE. 4. THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF CIT(A). 5. THE LD. COUNSEL SHRI M. K. KULKARNI AT THE OUTSE T CONTENDED THAT THE DETAILED WRITTEN SUBMISSIONS WERE FILED BEFORE THE CIT(A) WHICH WERE NOT CONSIDERED BY HIM IN PERSPECTIVE WHILE PASSING THE EX-PARTE ORDER. HE ACCORDINGLY PLEADED THAT THE MATTER BE REMANDED BAC K TO THE FILE OF THE CIT(A) FOR FRESH CONSIDERATION OF THE ISSUE INVOLVED. 6. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE ORDER OF THE CIT(A). HOWEVER IN THE SAME VEIN, HE SUBMITTED THAT HE HAS NO OBJECTION, IF THE MATTER IS REMITTED BACK TO THE FI LE OF THE CIT(A) FOR FRESH ADJUDICATION. 7. THE SOLITARY ISSUE INVOLVED IS WHETHER PROFITS A RISING ON SALE OF SHARES IS IN THE NATURE OF CAPITAL GAIN OR A BUSINESS ACTIVIT Y. IN THE LIGHT OF AFORESAID RIVAL CONTENTIONS NOTED ABOVE, WE CONSIDER IT FIT A ND PROPER TO REMIT THE MATTER BACK TO THE FILE OF THE CIT(A) FOR DE-NOVO CONSIDERATION OF THE ISSUE INVOLVED 3 ITA NO.953/PN/2014 IN ACCORDANCE WITH LAW. NEEDLESS TO SAY, PROPER OP PORTUNITY SHALL BE AFFORDED TO THE ASSESSEE IN THIS REGARD. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARITIES AT THE CONCLUSION OF THE HEARING ON THIS 08 TH DAY OF AUGUST, 2016. SD/- SD/- ( VIKAS AWASTHY ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE ; DATED : 08 TH AUGUST, 2016. & ' () *+( / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A), KOLHAPUR; 4) THE CIT-II, KOLHAPUR; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. &, / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE