ANAHITA NALIN SHAH, V. DCIT 4(1),

MA 229/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1312 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 28-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: SANJUKTA CHOW DHURY
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI SANJAY GARG, JM . / MA NO. 229/MUM/2013 (ARISING OUT OF ITA NO.1590/MUM/2012) ( / ASSESSMENT YEAR: 2008-09) ANAHAITA NALIN SHAH 1 & 1A, BIRLA MANSION, 134, N. M. ROAD, FORT, MUMBAI-400 023 / VS. DY. CIT-4(1), 6 TH FLOOR, ROOM NO. 640, AAYAKAR BHAVAN, MUMBAI-400 020 ' ./# ./PAN/GIR NO. AANPS 9303 H APPLICANT : RESPONDENT APPLICANT BY : SHRI PRAMOD KUMAR PARIDA & SHRI SANJUKTA CHOWDHURY RESPONDENT BY : SHRI M. L. PERUMAL $ % & ' ( / DATE OF HEARING : 06.12.2013 )*+ & ' ( / DATE OF PRONOUNCEMENT : 20.12.2013 , / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE IN RESPECT OF THE DISPOSAL OF THE REVENUES APPEAL IN RELATION TO ITS ASSESSMENT FOR THE ASSESSMENT YEAR (A.Y.) 2008-09 DATED 05.04.2013. 2. EXPLAINING THE MISTAKE WHICH INFLICTS THE IMPUGN ED ORDER, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT THE ONLY ISSUE IN THE REVENUES APPEAL WAS THE VALIDITY OF THE ASSESSMENT OF THE INCOME RETURNED BY WAY OF 2 MA NO. 229/MUM/2013 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. DY. CIT LONG TERM CAPITAL GAINS (LTCG) BY THE ASSESSEE AS B USINESS INCOME BY THE ASSESSING OFFICER (A.O.). THE COMMISSIONER OF INCOME TAX (APP EALS) (CIT(A) FOR SHORT) HAVING HELD IN FAVOUR OF THE ASSESSEE, THE REVENUE PREFERR ED AN APPEAL BEFORE THE TRIBUNAL. CONTINUING FURTHER, IT WAS SUBMITTED BY HIM THAT D URING THE HEARING OF THE APPEAL UNDER REFERENCE, IT WAS THE COMMON CONTENTION OF BO TH THE PARTIES THAT THE FACTS OF THE CASE ARE SIMILAR TO THAT FOR THE PRECEDING YEARS, I .E., A.YS. 2004-05 TO 2007-08 (IN ITA NOS.1009/MUM/2008, 4992/MUM/2008, 5953/MUM/2009 AND 4867/MUM/2010 DATED 31.01.2012), SO THAT THE MATTER MAY BE LIKE-WISE RE STORED TO THE FILE OF THE ASSESSING AUTHORITY FOR A DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. ACCORDINGLY, T HE TRIBUNAL RESTORED THE MATTER BACK TO THE FILE OF THE A.O. WI TH LIKE DIRECTIONS. TAKING US THROUGH THE ORDER BY THE TRIBUNAL FOR THE PRECEDING YEARS (SUPR A) (COPY ON RECORD), IT IS SUBMITTED THAT, HOWEVER, THE ISSUE HAD IN FACT BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. IT WAS, IN FACT, THE INCOME BY WAY OF SHORT TERM CAPIT AL GAINS (STCG), THAT STOOD SIMILARLY ASSESSED AS BUSINESS INCOME BY THE REVENUE, WHICH T HE TRIBUNAL HAD RESTORED BACK TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION. AS SUCH, A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL, WHICH IT WAS PLEADED MAY KINDLY BE RECTIF IED BY RECALLING THE CAPTIONED APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. PARAS 14 &15 (AT PGS.8-9) OF THE TRIBUNALS COMBINED ORDER FOR A.YS. 2004-05 TO 2006-07 (SUPRA) IN THE ASSESSEES CASE CONTAINS ITS DECISION IN RESPECT OF LTCG, WITH ITS FINAL CONCLUSION APPEARING AT THE LAST FEW SENTENCES OF PARA 15, WHI CH READ AS UNDER: ON THIS FACTUAL MATRIX, WE UPHOLD THE FINDINGS OF THE FIRST APPELLATE AUTHORITY THAT INCOME FROM SALE OF SHARES WHICH ARE HELD BY THE ASSESSEE FOR MORE THAN ONE YEAR, IS TO BE ASSESSED AS INCOME EAR NED FROM LONG TERM CAPITAL GAIN. THERE WAS THUS DECIDEDLY A LAPSE ON THE PART OF BOT H THE REPRESENTATIVES, INCLUDING THAT REPRESENTING THE ASSESSEE, WHILE ARGUING THE REVENU ES APPEAL BEFORE THE TRIBUNAL IN THE INSTANT CASE, EVEN AS ADMITTED TO BY THE LD. AR DUR ING HEARING. AT THE SAME TIME, HOWEVER, WITHOUT DOUBT, THE DECISION BY THE TRIBUNA L IS TO BE ON THE BASIS OF THE FINDING/S OF FACT, BASED ON THE MATERIAL ON RECORD, AFTER HEA RING THE PARTIES. IT IS CLEAR FROM THE 3 MA NO. 229/MUM/2013 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. DY. CIT READING OF THE TRIBUNALS ORDER FOR THE PRECEDING Y EARS THAT THE ISSUE HAD NOT BEEN REMITTED BACK TO THE FILE OF THE A.O. THE TRIBUNAL, IN PASSI NG THE IMPUGNED ORDER, HAS THUS DEFINITELY COMMITTED A MISTAKE INASMUCH AS IT DOES SO, NOT BY WAY OF OR ON THE BASIS OF ANY INDEPENDENT FINDING/S OF FACT, BUT BY FOLLOWING THE ORDER BY THE TRIBUNAL IN THE ASSESSEES CASE FOR THE EARLIER YEARS. WE ARE AS SUCH IN AGREEMENT WITH THE LD. AR THAT T HE IMPUGNED ORDER IS INFLICTED WITH A MISTAKE OF FACT. ACCORDINGLY, WE HAVE NO HES ITATION IN DIRECTING FOR A RECALL OF THE REVENUES APPEAL FOR BEING HEARD AFRESH. NEEDLESS T O ADD, THE IMPUGNED ORDER SHALL HAVE NO BEARING ON THE DECISION BY THE TRIBUNAL IN THE R ESTORED PROCEEDINGS, AND WHETHER THE TRIBUNALS ORDER FOR THE PRECEDING YEARS IS TO BE F OLLOWED ON NOT IS A MATTER THAT SHALL ENGAGE THE MIND OF THE TRIBUNAL IN DECIDING THE REV ENUES APPEAL IN ACCORDANCE WITH LAW AND THE FACTS OF THE CASE. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 20, 2013 SD/- SD/- (SANJAY GARG) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER $ -% MUMBAI; . DATED : 20.12.2013 .../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / '0 / THE APPLICANT 2. 12'0 / THE RESPONDENT 3. $ 3' ( / ) / THE CIT(A) 4. $ 3' / CIT - CONCERNED 5. 6 1'7 , / ( 7+ , $ -% / DR, ITAT, MUMBAI 6. 8 9 % / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , $ -% / ITAT, MUMBAI