Ketan N. Shah (HUF) , Vapi V. The Income Tax Officer, Ward-5, Vapi

MA 59/SRT/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5774 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 22-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUPAMA SINGLA
• Assessee Lawyers: SURESH KABRA
• Keywords: Capital asset; Charitable institution
• Section: 13; 10

Judgement Text

KETAN N. SHAH V. ITO, WARD-5, NAVSARI/ AY.2013-14 PAGE 1 OF 3 , , IN THE INCOME TAX APPELLATE TRIBUNAL-SURAT-BENCH-SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIUAL MEMBER AND SHRI O.P.MEENA, ACCOUTANT MEMBER MA.59/SRT/2019 [ARISING OUT OF . . /. I.T.A NO.321/SRT/2018] / ASSESSMENT YEAR:2013-14 SHRI KETAN N. SHAH (HUF), PLOT NO.275, USHA HOSPITAL & LIFE SCIENCE CHARITABLE TRUST, NEAR CINE PARK, CHANOD, VAPI-396 195. [PAN:AAHHK 4703 R] VS. INCOME TAX OFFICER, WARD-5, VAPI APPELLANT / RESPONDENT /ASSESSEE BY SURESH KABRA AR /REVENUE BY MRS. ANUPAMA SINGLA, SR.(D R ) / DATE OF HEARING: 13 - 12 - 20 19 /PRONOUNCEMENT ON: 02 - 01 - 20 20 /O R D E R PER O. P. MEENA, AM: 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, FILED BY THE ASSESSEE SEEKS TO POINT OUT APPARENT MISTAKE FROM REPORT AND THE ORDER OF TRIBUNAL PASSED IN ITA NO. 321/SRT/2018 FOR THE ASSESSMENT YEAR 2013- 14 DATED 31-07-2019. 2. THE LD. COUNSEL HAS POINTED OUT THAT THE TRIBUNAL HAS DECIDED THE ISSUE IN PARA 8, BY REPRODUCING DEFINITION OF SHORT TERM CAPITAL ASSET U/S.2(42A) AS SHORT TERM CAPITAL ASSET MEANS A CAPITAL ASSET HELD BY ASSESSEE FOR NOT MORE THAN 36 MONTHS IMMEDIATELY PRECEDING THE DATE KETAN N. SHAH V. ITO, WARD-5, NAVSARI/ AY.2013-14 PAGE 2 OF 3 OF TRANSFER. HOWEVER, IN DECIDING THE ISSUE, THE TRIBUNAL MISTAKENLY HAVE NOT GONE THROUGH THE ENTIRE PROVISION OF SECTION 2(42A) OF THE ACT AS APPLICABLE TO AY 2013-14 WHICH REPRODUCED AS UNDER:- FIRST PROVISO TO SECTION 2(42A) OF THE ACT, WHICH COMES IMMEDIATELY AFTER FIRST PARA OF THE PROVISION U/S.2(42A) AS MENTIONED IN PARA 8 OF THE ORDER, READS AS PROVIDED THAT IN THE CASE OF A SHARE HELD IN A COMPANY OR ANY OTHER SECURITY LISTED IN A RECOGNIZED STOCK EXCHANGE IN INDIA OR A UNIT OF THE UNIT TRUST OF INDIA ESTABLISHED UNDER THE UNIT TRUST OF INDIA ACT, 1963 (52 OF 1963) OR A UNIT OF A MUTUAL FUND SPECIFIED UNDER CLAUSE (23D) OF SECTION 10 OR A ZERO COUPON BOND, THE PROVISIONS OF THIS CLAUSE SHALL HAVE EFFECT AS IF FOR THE WORDS THIRTY-SIX MONTHS, THE WORDS TWELVE MONTHS HAD BEEN SUBSTITUTED. ACCORDINGLY, FOR A SHARE HELD IN A COMPANY, AS PER SECTION 2(42A) WILL READ AS IF FOR THE WORDS 36 MONTHS, 12 MONTHS HAVE BEEN SUBSTITUTED. HOWEVER, TRIBUNAL HAS NOT CONSIDERED FIRST PROVISO TO SECTION AT ALL AND DECIDED THE ISSUE BY CONSIDERING GENERAL PROVISIONS FOR SHORT TERM CAPITAL ASSET WITHOUT GOING THROUGH THE SPECIFIC PROVISION IN THE FIRST PROVISO FOR CAPITAL ASSET NAMELY A SHARE HELD IN A COMPANY. AS THE CAPITAL ASSET IN THE MATTER UNDER CONSIDERATION IS ONLY REGARDING SHARE HELD IN A COMPANY, NON-CONSIDERATION OF SPECIFIC PROVISION THERETO IS A MISTAKE ON RECORD AND ORDER WITHOUT CONSIDERING SUCH SPECIFIC PROVISIONS IS REQUIRED TO BE RECALLED. 3. THE LD. SR. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD AS SUCH DEFINITION OF CAPITAL ASSET HAS BEEN CORRECTLY ANALYZED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE TRIBUNAL HAS CONSIDERED THE DEFINITION AS PROVIDED U/S. 2(42A) AMENDED BY FINANCE ACT, 2014 APPLICABLE FOR ASSESSMENT YEAR 2015-16. WHEREAS, IN THE CASE OF KETAN N. SHAH V. ITO, WARD-5, NAVSARI/ AY.2013-14 PAGE 3 OF 3 ASSESSEE, THE ASSESSMENT YEAR BEING 2013-14 AS AGAINST THE DEFINITION AND FIRST PROVISO TO THE SECTION APPLICABLE FOR ASSESSMENT YEAR 2013-14 WOULD REQUIRE TO BE CONSIDERED. THEREFORE, THERE IS A MISTAKE APPARENT FROM RECORD, HENCE, THIS SAID ORDER OF THE TRIBUNAL IS BEING RECALLED FOR RECONSIDERATION DURING REGULAR HEARING, WHICH IS BEING FIXED AS ON 15-01-2020. 5. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. 6. THE ORDER PRONOUNCED IN THE OPEN COURT ON 02-01-2020. SD/- SD/- (SANDEEP GOSAIN) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT: DATED: 2 ND JANUARY , 2020/S.SAMANTA, PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/ GUARD FILE OF ITAT. BY ORDER // TRUE COPY // ASSISTANT REGISTRAR, SURAT