DCIT, Muzaffarnagar V. Shri Saurabh Swarup, Muzaffarnagar

MA 459/DEL/2010

• Counselvise Citation: [2011] 111 COUNSELVISE.COM (IT) 0393 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 27-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH SONKAR
• Assessee Lawyers: S K TANDON
• Keywords: Capital Gains
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH G DELHI ] BEFORE SHRI R. P. TOLANI, JM & SHRI K. D. R ANJAN, AM MISC. APP. NO. 459 (DEL) OF 2010 [ IN I. T. APPEAL NO. 2026 (DEL) OF 2009 ]. ASSESSMENT YEAR : 2005-06. DY. COMMISSIONER OF INCOME-TAX, SHRI SAURABH S WARUP, C I R C L E : 1, VS. S/O. SHRI CHITRANJAN SWARUP, MUZAFFAR NAGAR. 197, NORTH CIVIL LINES, MUZAFFAR NAGAR. PAN / GIR NO. AID PS 5087 N. ( APPLICANT ) ( RESPONDENT ) ASSESSEE BY : SHRI S. K. TANDON, ADV.; DEPARTMENT BY : SHRI PIYUSH SONKAR, SR. D.R.; O R D E R. PER K. D. RANJAN, AM : THIS MISC. APPLICATION BY THE REVENUE FOR ASSESSME NT YEAR 2005-06 HAS BEEN FILED AGAINST THE ORDER DATED 08TH JANUARY, 2010 PASSED BY THE IT AT, DELHI BENCH G, NEW DELHI. 2. IN THE MISC. APPLICATION IT HAS BEEN SUBMITTED T HAT THE ITAT HAD DISMISSED THE REVENUES APPEAL IN RESPECT OF BOTH THE GROUNDS. THE FIRST G ROUND RELATED TO DELETING THE ADDITION OF RS.11,77,000/- AS INCOME FROM OTHER SOURCES AND THE SECOND GROUND RELATED TO DELETING THE ADDITION OF RS.29,655/- AS PROFIT EARNED FROM M/S. SHAMBHU DAYAL VINOD KUMAR. ITAT IN RESPECT OF THE FIRST ISSUE HAS TREATED THE PROFIT E ARNED ON SALE OF SHARES AS LONG TERM CAPITAL GAINS, WHEREAS IN THE CASE OF SMT. ANITA BANSAL, DAUGHTER OF SHRI ARVIND GOYAL FOR ASSESSMENT YEAR 2005-06 ITAT, DELHI BENCH D IN ITA. NO. 2025 (DEL ) OF 2009 DATED 26 TH FEBRUARY, 2010 HAS 2 MISC. APP. NO. 459 (DEL) OF 2010 REVERSED THE ORDER OF THE LD. CIT (APPEALS) ON IDEN TICAL FACTS AND HAS HELD THAT THE SALE PROCEEDS OF THE SHARES WAS TO BE ASSESSED AS UN-EXPLAINED IN COME OF THE ASSESSEE. SINCE ON IDENTICAL FACTS THE DECISION OF THE TRIBUNAL IN DIFFERENT IN TWO DI FFERENT CASES, THEREFORE, THERE IS A MISTAKE APPARENT FROM RECORD AND THE ORDER PASSED BY THE TR IBUNAL IN ASSESSEES CASE DATED 8 TH JANUARY, 2010 IS TO BE RECTIFIED. ON THE OTHER HAND, THE LD . AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES. IN THE CASE OF THE ASSESSEE THE ITAT, DELHI BENCH G HAS RENDERED DECISION ON 8/01/2010 BASED ON THE FAC TS AND THE ARGUMENTS ADVANCED AT THE TIME OF HEARING. SUBSEQUENT DECISION IN THE CASE OF ANITA BANSAL RENDERED BY ITAT, DELHI BENCH D ON 26 TH FEBRUARY, 2010 CANNOT BE TREATED AS A MISTAKE APPA RENT FROM RECORD. TWO BENCHES HAVE TAKEN TWO DIFFERENT VIEWS ON IDENTICAL FACTS. THE D ECISION RENDERED EARLIER TO DECISION IN THE CASE OF MS ANITA BANSAL CANNOT FORM BASIS OF RECTIFICATI ON U/S 254(2) OF THE ACT. IT MAY BE A CASE OF MISTAKE OF LAW, BUT DEFINITELY IT WOULD NOT FALL UN DER SECTION 254(2) OF THE ACT. THEREFORE, THE CONTENTION OF THE REVENUE THAT THE ORDER PASSED ON 8 TH JANUARY, 2010 IS TO BE RECTIFIED IN VIEW OF THE SUBSEQUENT DECISION RENDERED BY THE TRIBUNAL ON 26 TH FEBRUARY, 2010. IF THE REVENUE WAS NOT SATISFIED WITH THE ORDER OF THE TRIBUNAL, THEY COULD HAVE GONE IN APPEAL BEFORE THE HONBLE HIGH COURT. SINCE THERE IS NO MISTAKE APPARENT FRO M RECORD, THE MISC. APPLICATION FILED BY THE REVENUE IS DISMISSED. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON : 25 TH FEBRUARY, 2011. SD/- SD/-. [ R. P. TOLANI ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 25 TH FEBRUARY, 2011 *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPLICANT. 3 MISC. APP. NO. 459 (DEL) OF 2010 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGI STRAR, ITAT. 4 MISC. APP. NO. 459 (DEL) OF 2010