Ashok Giri , CHENNAI V. ACIT Corporate Circle 3(2) , CHENNAI

MA 23/CHNY/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0987 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 08-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Business income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , . !' , # $ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER %% / M.P. NO.23/CHNY/2018 (IN I.T.A. NO.2059/MDS/2017) & '& / ASSESSMENT YEAR : 2005-06 SHRI ASHOK GIRI, NO.13, 32 ND CROSS STREET, BESANT NAGAR, CHENNAI - 600 090. PAN : AACPA 4186 F V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 3(2), CHENNAI - 600 034. ()*& /PETITIONER) ()+*,/ RESPONDENT) )*& . / /PETITIONER BY : SH. B. RAMAKRISHNAN, CA )+*, . / / RESPONDENT BY : SHRI B. SAGADEVAN, JCIT 0 . 1# / DATE OF HEARING : 07.09.2018 2!' . 1# / DATE OF PRONOUNCEMENT : 07.09.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER O F THIS TRIBUNAL DATED 29.11.2017. 2. SH. B. RAMAKRISHNAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE, REFERRING TO PAGE 4 OF THE ORDER OF THIS TRIBUNAL DATED 2 M.P. NO.23/CHNY/18 29.11.2017, SUBMITTED THAT THIS TRIBUNAL OBSERVED T HAT NON-COMPETE FEE IS ASSESSABLE AS BUSINESS INCOME UNDER SECTION 28(VA) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT IT IS ASSESSABLE AS CAPITAL GAIN WHERE THE BUSINESS STANDS TRANSFERRED. ACCORDING TO THE LD. REPRESENTATIVE, IT IS THE CASE OF THE ASSESSEE THAT THE BUSINESS WAS T RANSFERRED. REFERRING TO THE NEXT PARAGRAPH AT PAGE 4, THE LD. REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS FILED ALL THE INVOI CES AND RECEIPTS, THEREFORE, THE OBSERVATION MADE BY THIS TRIBUNAL TH AT THE ASSESSEES CASE IS UNPROVED IS NOT CORRECT. IN VIEW OF THIS, ACCORDING TO THE LD. REPRESENTATIVE, THE ORDER OF THIS TRIBUNAL MAY BE R ECALLED AND AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO ARGUE O N MERIT. 3. WE HEARD SHRI B. SAGADEVAN, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. THIS TRIBUNAL EXAMINED THE IS SUE ELABORATELY AND RECORDED A SPECIFIC FINDING THAT NON-COMPETE FE E HAS TO BE TAXED AS BUSINESS INCOME UNDER SECTION 28(VA) OF TH E ACT. IT WAS ALSO OBSERVED THAT IT IS TO BE TAXED AS CAPITAL GAI N IN CASE THE BUSINESS WAS TRANSFERRED. IN VIEW OF THIS SPECIFIC FINDING, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS NO ERROR MUCH LESS PRIMA FACIE ERROR IN THE ORDER OF THIS TRIBUNAL DATED 29.11.20 17 3 M.P. NO.23/CHNY/18 WHICH REQUIRES RECTIFICATION UNDER SECTION 254(2) O F THE ACT. IN VIEW OF THIS, THERE IS NO MERIT IN THE PETITION FILED BY THE ASSESSEE. 4. WITH THE ABOVE OBSERVATION, THE MISCELLANEOUS PE TITION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSI ON OF HEARING ON 7TH SEPTEMBER, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 7 TH SEPTEMBER, 2018. KRI. . )15% 6%'1 /COPY TO: 1. )*& / PETITIONER 2. )+*, /RESPONDENT 3. 0 71 () /CIT(A) 4. 0 71 /CIT 5. %8 )1 /DR 6. 9& : /GF.