MRS.CHANDERKALA GOENKA, MUMBAI V. DCIT CIRCLE-13(2), MUMBAI

MA 209/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5652 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 20-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE S/SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND S/SHRI AMARJIT SINGH, JUDICIAL MEMBER M.A. N O . 209 / M/201 9 (ARISING OUT OF ITA NO. 2411 /MUM/201 8 ) ( / ASSESSMENT YEAR : 20 11 - 12 ) MRS. CHANDERKALA GOENKA 13, INDU CHAMBERS, 2 ND FLOOR, 349/353, SAMUEL STREET, MUMBAI - 400003 . / VS. DCIT, CIRCLE 13(2) ROOM NO.418, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 400020. / . / . PAN/GIR NO. : AAJPG9512C ( / APPELLANT ) / APPLICANT .. ( / RESPONDENT ) / DATE OF HEARING: 17 .0 5 .201 9 /DATE OF PRONOUNCEMENT: 24. 05 . 2019 ORDER PER AMARJIT SINGH, J M THIS ORDER SHALL DISPOSE OF THE MISCELLA N EOUS APPLICATION BEARING NO. 209 /M/2019 MOVED BY APP LICANT ARISING OUT OF IN ITA. NO . 2411 /MUM/201 8 RELEVANT TO THE A .Y. 2011 - 12 DECIDED ON DATED 19 . 12 .2018 . 2. IT IS AVERRED THAT THE HONBLE ITAT HAS DECIDED THE ITA. NO.2411/M/2018 BY VIRTUE OF ORDER DATED 19.12.2018. THE HONBLE ITAT HAS GIVEN THE FINDING WHICH IS HEREBY REPRODUCED AS UNDER.: - IN VIEW OF THE ABOVE DISCUSSION WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LOWER AUTHORITIES FOR TREATING THE GAIN UNDER THE HEAD BUSINESS INCOME. ACCORDINGLY , THE AO IS DIRECTED TO COMPUTE THE LONG TERM CAPITAL GAINS IN RESPECT OF FLAT SOLD DURING THE YEAR UNDER CONSIDERATION. WE DIRECT ACCORDINGLY. 3 . THE FINDING NOWHERE SPEAKS ABOUT THIS FACT THAT THE GAIN ARISING OUT OF SELLING THE FLAT DURING THE YEAR IS LIABLE TO BE ASSESSED AS BUSINESS OF INCOME OR ASSESSEE BY: SHRI SHEKHAR GUPTA REVENUE BY: MS. JYOTI L. NAYAK (SR. AR) M.A. N O . 209 / M/201 9 LONG TERM CAPITAL GAIN, THEREFORE, T HE ORDER IS LIABLE TO BE RECTIFIED IN VIEW OF THE PROVISIONS U/S 254(2) OF THE ACT. 4 . NOTICE GIVEN. 5 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. COPY OF ORDER DATED 19 . 12 .201 8 IS ON THE RECORD IN WHICH THE RELEVANT PARA IS HEREBY MENTIONED AS UNDER.: - IN VIEW OF THE ABOVE DISCUSSION WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LOWER AUTHORITIES FOR TREATING THE GAIN UNDER THE HEAD BUSINESS INCOME. ACCORDINGLY, THE AO IS DIRECTED TO COMPUTE THE LONG TERM CAPITAL GAINS IN RESPECT OF FLAT SOLD DURING THE YEAR UNDER CONSIDERATION. WE DIRECT ACCORDINGLY . 6. ON APPRAISAL OF THE ABOVE MENTIONED FINDING , WE FOUND AMBIGUITY IN THE ORDE R WHICH NOWHERE CLEARLY SPEAKS ABOUT THIS FACT THAT THE GAIN ARISING OUT OF SELLING OF FLAT IS LIABLE TO BE ASSESSED AS BUSINESS INCOME OR LONG TERM CAPITAL GAIN. T HEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ISSUE IS LIABLE TO BE RECALLED AND IS LIABLE TO BE DECIDED AFRESH IN THE INTEREST OF JUSTICE. ACCORDING LY, WE RECALL ED THE ISSUE FOR DECIDING THE AFRESH. ACCORDINGLY, THE PRESENT MISCELLANEOUS APPLICATION IS HEREBY ALLOWED ACCORDINGLY . IN THE RESULT , THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED ACCORDINGLY . ORDER WAS PRON OUNCED IN TH E OPEN COURT ON 24 /05 / 2019 SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, DT: 24 /05 / 2019 V IJAY M.A. N O . 209 / M/201 9 COPY TO : 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) 4 . THE CIT 5 . THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, SMC , BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES