ASST CIT 14(3), V. CHARU PARAG SHAH,

MA 402/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2836 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 29-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N PADMANABHAN
• Assessee Lawyers: B V JHAVERI

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI R.C. SHARMA, AM AND SHRI VIVEK VARMA, J M 402 /MUM/2014 ARISING OUT OF ITA NO. 6687/MUM/2011 ( / ASSESSMENT YEARS : 2008-09 ASSTT. COMMISSIONER OF INCOME TAX 14(3), 6 TH FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI 400 021. / VS. MRS. CHARU PARAG SHAH, 5, GOPAL NIWAS, 2 ND FLOOR, 133, S.G. MNARG, MUMBAI 400 002. . / PAN : ABGPS5775F ( / APPLICANT ) .. ( / RESPONDENT ) / APPLICANT BY : SHRI N. PADMANABHAN / RESPONDENT BY : SHRI B.V. JHAVERI ! '# / DATE OF HEARING : 6-2-2015 $%&' '# / DATE OF PRONOUNCEMENT : 6-2-2015 ( / O R D E R PER R.C. SHARMA, A.M . : THIS MISC. APPLICATION IS FILED BY THE REVENUE IN RESPEC T OF ORDER PASSED BY THE TRIBUNAL IN ITA NO. 6687/MUM/2011 DATED 6-6-2014 FO R A.Y. 2008-09. 2. THROUGH THIS MISC. APPLICATION, IT WAS CONTENDED BY THE LD. D.R. THAT THE TRIBUNAL HAS ERRED N HOLDING THAT THE ASSESSEE HAS NOT ENTERED IN TO INTRA-DAY TRANSACTION DURING THE YEAR. AS PER THE LD. D.R., THIS OBSERVA TION OF THE TRIBUNAL IS CONTRARY TO THE OBSERVATIONS MADE BY A.O. IN HIS ASSESSMENT ORDER. ACCORDINGLY IT WAS PRAYED THAT THE ORDER PASSED BY THE TRIBUNAL SHOULD BE RE-CONSIDERE D AND MODIFIED ACCORDINGLY. 3. ON THE OTHER HAND, IT WAS CONTENDED BY THE LD. A .R. THAT THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. HE INVITED OUR ATTENTION TO THE ORDER OF LD. CIT(A) WHEREIN HE HAS DEALT WITH THE FACTS REGARDING ALLEG ATION OF A.O. FOR INTRA-DAY TRANSACTION MA402 /MUM/2014 2 WHEREIN HE OBSERVED THAT THE HOLDING PERIOD OF THES E SHARES WAS FOR TWO TO THREE DAYS INSTEAD OF INTRA-DAY TRANSACTION. 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND T HAT THE ALLEGATION OF INTRA-DAY TRANSACTION IN RESPECT OF PURCHASE OF 3000 SHARES O F M/S SOUTH ASIA PETRO LTD. BY THE A.O. IS INCORRECT AND CONTRARY TO THE FACTS ON RECO RD. THUS THE OBSERVATION BY THE TRIBUNAL THAT THERE WAS NO INTRA-DAY TRANSACTION WA S BASED ON MATERIAL ON RECORD. FURTHERMORE THE CONCLUSION OF THE TRIBUNAL TO THE E FFECT THAT PROFITS EARNED ON SALE OF SHARES WAS LIABLE TO BE ASSESSED AS SHORT TERM CAPI TAL GAIN WAS BASED ON VARIOUS FACTS AS DISCUSSED IN THE ORDER AND WAS NOT FULLY BASED ON T HE ALLEGATION OF A.O. REGARDING INTRA- DAY TRANSACTION. ACCORDINGLY, WE DO NOT FIND ANY M ISTAKE MUCH LESS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL REQUIRING RECO NSIDERATION OR MODIFICATION IN THE ORDER. IT IS PERTINENT TO MENTION THAT THE POWERS O F THE TRIBUNAL U/S 254(2) OF THE INCOME TAX ACT, 1961 IS LIMITED TO RECTIFICATION OF AN APP ARENT MISTAKE. A DEBATABLE ISSUE OR AN ISSUE REQUIRING LONG DELIBERATION CANNOT BE MADE SU BJECT OF RECTIFICATION U/S 254(2) OF THE ACT. 4. IN THE RESULT, THE MISC. APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH FEB. 2015 . ( $%&' ) *+ ,- 6-2-2015 % 2! 3 SD/- SD/- (VIVEK VARMA) ( R.C. SHARMA ) / JUDICIAL MEMBER ): / ACCOUNTANT MEMBER * ;! MUMBAI ; , DATED 6-2-2015 .:../ RK , SR. PS MA402 /MUM/2014 3 ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. <' () / THE CIT(A)- CONCERNED, MUMBAI 4. <' / CIT CONCERNED, MUMBAI 5. ?2 :':@ , # @' , * ;! / DR, ITAT, MUMBAI C BENCH 6. 2BC D! / GUARD FILE. ' / BY ORDER, ' :' //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , * ;! / ITAT, MUMBAI