Smt. Devyaniben Hasmukhrai Patel, Bhavnagar V. The ACIT.,Circle-1, Bhavnagar

MA 42/AHD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9767 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 27-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA SR D R
• Assessee Lawyers: URVAHI SHODHAN
• Keywords: Business income

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI D.K.TYAGI, JUDICIAL MEMBER AND SHRI A.MOHAN ALONKAMONY, ACCOUNTANT MEMBER (MISC. APPLICATION) NO.42/AHD/2012 (A/O ITA NO.2913/AHD/2009) / / / / ASSESSMENT YEAR:2006-07 SMT. DEVYANI HASMUKHRAI PATEL PLOT NO. 2214/C-1, MANAN, HILL DRIVE, BHAVNAGAR [ PAN NO.AAOPP 4644H ] / V/S . ASSTT. COMMISIONER OF INCOME TAX, CIRCLE-1, JASHONATH CHOWK, BHAVNAGAR 364 001 (ORIGINAL RESPONDENT) (ORIGI NAL APPELLANT) (APPELLANT) .. (RESPONDENT) ! /BY APPELLANT SMT. URVAHI SHODHAN, AR '# ! BY RESPONDENT SHRI Y.P. VERMA, SR-DR $% &'( /DATE OF HEARING 21-12-2012 )* &'( /DATE OF PRONOUNCEMENT 04-01-2013 + + + + / // / ORDER PER D.K.TYAGI, JUDICIAL MEMBER:- BY WAY OF THIS MISCELLANEOUS APPLICATION (MA) THE A SSESSEE HAS REQUESTED FOR MODIFYING THE ORDER PASSED BY THE TRI BUNAL IN ITA NO.2913/AHD/2009 DATED 22-07-2011. THE MA FILED BY THE ASSESSEE READS AS UNDER: - 1. THE APPELLANT ABOVE NAMED FILES THE PRESENT APP LICATION FOR SETTING ASIDE THE ORDER DATED 22/07/2011 PASSED BY THIS HONBLE MA NO.42/AHD/2012 (A/O ITA NO.2913/AHD/2009) A.Y. 06-07 SMT. DEVYANI H PATEL V. ACIT CIR-1 BNG PAGE 2 TRIBUNAL ALLOWING THE APPEAL FILED BY THE RESPONDE NT (REVENUE). IT IS RESPECTFULLY SUBMITTED THAT IN THE SAID ORDER OF THE HONBLE ITAT, THERE IS AN ERROR APPARENT FROM THE RECORD. 2. THE HONBLE ITAT ON PAGE 1 OF THE ORDER NOTED GR OUNDS TAKEN BY THE RESPONDENT (REVENUE) AS UNDER- 1. THE LD. CIT(A)-XX, AHMEDABAD HAS ERRED IN LAW A ND ON FACTS IN HOLDING THAT THE INCOME DECLARED BY THE AS SESSEE ON ACCOUNT OF SHORT TERM CAPITAL GAINS FROM SHARES AND MUTUAL FUND IS TO BE TREATED AS SHORT TERM CAPITAL GAINS A S AGAINST THE BUSINESS INCOME TREATED BY THE ASSESSING OFFICE R, WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIALS BROUGHT ON RECORD BY THE ASSESSING OFFICE R. 1.2 XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX 1.3 XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX 1.4 XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX 3. THE HONBLE ITAT FURTHER ON PAGE 2 IN PARA 2 NOT ED THAT AT THE TIME OF HEARING BOTH THE PARTIES AGREED THAT THE IS SUE IS COVERED BY THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE I N ITA NO. 380, 383, 385/AHD/2009 DATED 31-03-2011 FOR THE ASSESSME NT YEAR 2005-06. THE HONBLE ITAT THEN PROCEEDED TO REPRODUCE THE FI NDING IN PARA 7 OF THE A.Y. 2005-06 ORDER AT PAGES 2 TO 8 OF THE IMPUGNED ORDER, THE OPERATIVE PART OF THE SAID ORDER IS REPRODUCED BELOW:- SINCE ALL THE AUTHORITIES REFERRED BY LD. CIT(A) A ND BY THE PARTIES BEFORE US ARE CONSIDERED BY THE TRIBUNAL IN THESE ORDERS REFERRED ABOVE, WE ARE OF THE (OPINION THAT) HE ASSESSEE IS PARTLY DEALING IN INVESTMENTS (AND PART LY) AS TRADER. THEREFORE IN OUR VIEW CONSIDERING THE TOTAL ITY OF THE FACTS AND CIRCUMSTANCES AND FREQUENCY AND VOLUME AN D HOLDING PERIOD OF THE SHARES, ASSESSING OFFICER (LD . CIT(A)) WAS JUSTIFIED IN TREATING THE PROFIT ON SALE OF SHA RE HELD FOR LESS THAN 30 DAYS AS BUSINESS INCOME. MA NO.42/AHD/2012 (A/O ITA NO.2913/AHD/2009) A.Y. 06-07 SMT. DEVYANI H PATEL V. ACIT CIR-1 BNG PAGE 3 RESPECTFULLY FOLLOWING THE SAME THE REVENUES APPEA L IS ALLOWED. 4. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT THE RE IS AN ERROR APPARENT ON THE RECORD INASMUCH AS THAT THOUGHT THE HONBLE ITAT NOTED THE ISSUE UNDER APPEAL FOR AY 2006-07 AS COV ERED BY THE ORDER OF THE EARLIER YEAR, THE FINDINGS GIVEN IN AY 2005-06 ARE NOT CORRECTLY APPLIED. THE HONBEI ITAT OUGHT TO HAVE H ELD THAT ONLY THE PROFIT ON SALE OF SHARES HELD FOR LESS THAN 30 DAYS TO BE TREATED AS BUSINESS INCOME. BY ALLOWING THE APPEAL FILED BY THE RESPONDENT (REVENUE) IT TRANSPIRES THAT THE ENTIRE PROFIT EARNED BY THE APPELLANT ON SHARES AND MUTUAL FUNDS TO BE TREA TED BUSINESS INCOME. THE HONBLE ITAT OUGHT TO HAVE HELD AS FOLL OWS- RESPECTFULLY FOLLOWING THE ORDER OF THE HONBLE IT AT (SUPRA) AND CONSIDERING THE TOTALITY OF THE FACTS AND CIRCU MSTANCES FOR THE YEAR UNDER CONSIDERATION WE DIRECT THE ASSE SSING OFFICER TO TREAT THE PROFIT ON SALE OF SHARES HELD FOR LESS THAN 30 DAYS AS BUSINESS INCOME. 3. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOWED. 5. THE APPLICANT THEREFORE, RESPECTFULLY SUBMITS TH AT IN THE LARGER INTEREST OF JUSTICE THE HONBLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT/APPELLANT AND MODIFY THE OR DER AS STATED ABOVE SO AS TO RENDER CORRECT DECISION ON THE ISSUE RAISED IN THE APPEAL. AND IS SELF-EXPLANATORY. 2. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT INADVERTENTLY A MISTAKE APPARENT FROM THE RECORD HA S CREPT IN OUR ORDER DATED 22-07-2011 AND THE SAME IS RECTIFIED BY MODIF YING OUR ORDER AS UNDER:- 1) LAST LINE OF PARAGRAPH-2 WILL NOW READ AS UNDER RESPECTFULLY FOLLOWING THE SAME, THE REVENUES APPE AL IS ACCORDINGLY ALLOWED . MA NO.42/AHD/2012 (A/O ITA NO.2913/AHD/2009) A.Y. 06-07 SMT. DEVYANI H PATEL V. ACIT CIR-1 BNG PAGE 4 2) PARAGRAPH-3 WILL READ AS UNDER:- IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOWED. 3. IN THE RESULT, MA OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.MOHAN ALONKAMONY) (D.K.TYAGI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) *DKP ,-.- 04/01/2013 + + + + '& '& '& '& 5& 5& 5& 5& / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. '# / RESPONDENT 3. -- & $7 / CONCERNED CIT 4. $7- / CIT (A) 5. 9: '& , , / DR, ITAT, AHMEDABAD 6. :< => / GUARD FILE. BY ORDER/ + , /TRUE COPY/ ?/ -@ , STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 24/12 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 24/12 4) DATE OF CORRECTION 24/12 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 03/01 7) ORDER UPLOADED ON 04/01 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 04/01