M/s Frost International Ltd., Kanpur V. Astt. Commissioner of Income Tax-6, Kanpur

MA 74/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3671 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 04-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 01-07-2015
• Court: TRIBUNAL
• Section: 14A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A NOS. 74 & 75/LKW/2015 (IN ITA NOS. 419 & 420/LKW/2012) ASSESSMENT YEARS 2008-09 & 2009-10 ACIT,-6, KANPUR VS M/S FROST INTERNATIONAL LTD., 410-411, KALPANA PLAZA, 24/147-A, BIRHANA ROAD, KANPUR PAN AAACF 2299 P (RESPONDENT) ( APPLICANT ) S HRI ABHINAV MEHROTRA , ADVOCATE APPLICANT BY S HRI AMIT NIGAM , DR RESPONDENT BY 11/09/2015 DATE OF HEARING 07/10/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. BOTH THESE MAS ARE FILED BY THE ASSESSEE AGAINST TH E COMBINED TRIBUNAL ORDER DATED 07.01.2015 FOR AY 2008-09 & 2009-10. THE MAS ARE ID ENTICAL AND THE SAME IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE:- THE DEPARTMENT HAS PREFERRED AN APPEAL AGAINST THE ORDER OF LEARNED CIT (A) -II, KANPUR DATED 19.04.2012 BEFORE THE HON 'BLE TRIBUNAL WHICH WERE REGISTERED AS INCOME TAX APPEALS NO. 419 & 420 /L/2012 RELEVANT FOR A.Y. 2008-09 & 09-10. DURING THE PASSING OF THE CONSOLIDATION ORDER BY THE HON'BLE TRIBUNAL DT. 07.01.2015 THE FOLLOWIN G MISTAKES HAVE INADVERTENTLY CREPT IN THE ORDER OF TRIBUNAL. PARTICULARS OF MISTAKE SOUGHT TO BE RECTIFIED: THE ISSUE BEFORE THE TRIBUNAL IS APPLICABILITY OF S EC. 14A. THE TRIBUNAL HAS OBSERVED IN PARA 6 OF THE ORDER AS UNDER 'IN TH E PRESENT CASE, THIS HAS TO BE EXAMINED AS TO WHETHER THE ASSESSEE IS DE ALER IN SHARES OR NOT' THE TRIBUNAL PROCEEDED TO EXAMINE THE FINAL AC COUNTS OF THE ASSESSEE TO DRAW A CONCLUSION ON THE ABOVE ASPECT 2 A. IN CORRECT/MISTAKEN READING OF THE FINAL ACCOUNT OF THE ASSESSEE. B. AS PER THE JUDGMENT OF THE HON'BLE SUPREME COURT AND THE JURISDICTIONAL HIGH COURT HAS HELD THAT IT IS THE F REQUENCY OF THE TRANSACTION THE TEST WHICH WILL DECIDE WHETHER THE SHARE WERE HELD IN STOCK IN TRADE OR AS INVESTMENT. A. IN CORRECT/MISTAKEN READING OF THE FINAL ACCOUNT OF THE ASSESSEE: IN PARA 6 AN INVESTMENT OF RS. 6.20 LACES, IS REFER RED. THIS IS NOT AN AMOUNT WHICH IS RELEVANT FOR DETERMINING SEC.!4A DI SALLOWANCE BECAUSE IT REPRESENTS A LAND PURCHASED BY THE ASSESSEE AT DELH I. THE INCOME OF RS. 728.23 LACES RESULTING IN GAIN ON SHORT TERM INVEST MENT HAS BEEN OFFERED FOR TAXATION @30% AS AGAINST REDUCED RATES PROVIDED U/S 111A @ 15% AND LONG TERM CAPITAL GAIN AS EXEMPT U/S 1038 OR AN A REDUCED RATE 20% U/S 112 OF THE INCOME TAX ACT. THE TURNOVER OF THE TRANSACTION OF IN BUYING AND PURCHASES SHARES IN RUPEES:- WHILE EVALUATING THE BALANCE SHEET AS ON 03.03.2009 INVESTMENT OF RS.340.80 LACES HAS BEEN REFERRED. THIS IS AN INVES TMENT IN FOREIGN SUBSIDIARY WHICH IS APPARENT FROM A PERUSAL OF SCHE DULE 5 ON PAGE 33. FROM THIS INVESTMENT NO EVIDENT HAS BEEN EARNED DUR ING THE YEAR AND THIS INVESTMENT IS A PART OF STRATEGIC BUSINESS INV ESTMENT OF THE ASSESSEE I.E. TO CREATE HOLDING SUBSIDIARY RELATIONSHIP. IN THE 3RD LINE OF PARA6 A FIGURE OF RS. 790.93 HAS BEEN WRITTEN AS 709.93. THE VALUATION OF THE CLOSING STOCK OF SHARE S AS PER ACCOUNTING SLANDERED 2. THE ITAT OMITTED TO CONSIDER THE FOLLOWING SCHEDULE S. (I) BALANCE SHEET AS ON 31,03.2008 SCHEDULE 6 APPEARING ON PAGE 11 OF THE PAPER BOOK U NDER THE HEAD CURRENT ASSET WERE STOCK OF SHARES OF LISTED COMPAN IES IS SHOWN AT RS. 2431 LACES. (II) BALANCE SHEET AS ON 31.03.2009 SIMILARLY FOR THE CURRENT ASSET OF THE ASSESSEE AS ON 31.03.2009 APPEARING ON PAGE 33 OF THE PAPER BOOK A SUM OF RS. 795.36 LACES APPEAR AS STOCK OF SHARES. 2. IN COURSE OF HEARING BEFORE US, LD. AR OF THE AS SESSEE DRAWN OUR ATTENTION TO PARA 6 OF THE TRIBUNAL ORDER AND SIMULTANEOUSLY DRA WN OUR ATTENTION TO PAGE NO.6 OF 3 THE PAPER BOOK FILED AT THE TIME OF HEARING OF APPE ALS AND IT WAS POINTED OUT THAT AS PER PAGE 6 OF THE PAPER BOOK, THE AMOUNT OF INVESTM ENT AS ON 31.03.2008 IS SHOWN AT RS.60.20 LAKH. HE FURTHER POINTED OUT THAT ON PA GE 11 OF THE PAPER BOOK IS SCHEDULE-5 WHICH GIVES THE DETAILS OF THESE INVESTM ENTS AND AS PER THE SAME, IT CAN BE SEEN THAT THIS AMOUNT OF RS.60.20 LAKH IS ON ACC OUNT OF LAND AT NEW DELHI AND NOT ON ACCOUNT OF INVESTMENT IN SHARES AND THEREFOR E, THIS INVESTMENT IS NOT RELEVANT FOR THE PURPOSE OF DISALLOWANCE U/S 14A OF THE ACT. THEREAFTER, HE DRAWN OUR ATTENTION TO PAGE 33 OF THE PAPER BOOK, WHICH INCLU DES DETAILS OF INVESTMENT AS ON 31.03.2009 AND IT WAS POINTED OUT THAT AS PER THE S AME, THE AMOUNT OF INVESTMENT AS ON 31.03.2009 OF RS.3,40,80,603/- IS ON ACCOUNT OF EQUITY SHARES OF FOREIGN SUBSIDIARY AND THEREFORE, THIS AMOUNT IS ALSO NOT R ELEVANT FOR THE PURPOSE OF DISALLOWANCE U/S 14A OF THE ACT BECAUSE INCOME FROM INVESTMENT IN FOREIGN SUBSIDIARY IS NOT TAX FREE. THEREAFTER HE DRAWN OUR ATTENTION TO PAGE 3 OF THE TRIBUNAL ORDER PARTICULARLY LAST THREE LINE ON THIS PAGE OF THE TRIBUNAL ORDER AND IT WAS POINTED OUT THAT AMOUNT OF RS.709.93 LAKH NOTED BY THE TRIBUNAL ON THIS PAGE IS INCORRECT AND THE SAME SHOULD BE RS.790.93 LAKH. IT WAS ALSO A SUBMISSION THAT THE TRIBUNAL HAS OMITTED TO CONSIDER SCHEDULE-6 OF THE BALANCE SHEET AS ON 31.03.2008 AVAILABLE ON PAGE 11 OF THE PAPER BOOK AND ALSO REL EVANT SCHEDULE FOR THE BALANCE SHEET AS ON 31.03.2009 AVAILABLE ON PAGE 33 OF THE PAPER BOOK AND THEREFORE, THESE ARE APPARENT MISTAKES WHICH SHOULD BE RECTIFIED. AS AGAINST THIS, LD. DR OF THE REVENUE SUBMITTED THAT THERE IS NO MISTAKE IN THE T RIBUNAL ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSION. WE FIND THAT THREE MISTAKES ARE POINTED OUT IN PARA 6 OF THE TRIBUNAL ORDER. FIRST MISTAKE IS THAT THE AMOUNT OF RS.60.20 LAKH NOTED BY THE TRIBUNAL IN PARA 6 OF TH E TRIBUNAL ORDER IS IN FACT NOT AN INVESTMENT FOR EARNING TAX FREE INCOME AND THEREFOR E, THIS SHOULD NOT BE CONSIDERED AS A BASIS FOR DECIDING THE DISALLOWANCE U/S 14A OF THE ACT AND IN THE SAME MANNER, THE AMOUNT OF INVESTMENT OF RS.340.80 LAKH AS ON 31 .03.2009 IS ALSO NOT AN INVESTMENT FOR EARNING TAX FREE INCOME AND THEREFOR E, THIS SHOULD ALSO NOT BE CONSIDERED FOR DECIDING THE DISALLOWANCE U/S 14A OF THE ACT. REGARDING BOTH THESE 4 ASPECTS, WE FIND FORCE IN THE SUBMISSIONS OF THE LD . AR OF THE ASSESSEE TO THE EXTENT THAT THESE TWO INVESTMENT AMOUNTS SHOULD NOT BE TAK EN INTO CONSIDERATION FOR DECIDING THE ISSUE ABOUT DISALLOWANCE U/S 14A. THE THIRD MISTAKE POINTED OUT IS ABOUT THE AMOUNT OF RS.709.93 LACS WHICH SHOULD BE RS.790.93 LACS. WE A GREE ABOUT THIS ALSO. 4. HENCE, WE RECTIFY AND AMEND PARA-6 OF THE IMPUGN ED TRIBUNALS ORDER BY EXCLUDING THE REFERENCE TO THESE TWO AMOUNT OF INVE STMENT OF RS.60.20 LAKH AS ON 31.03.2008 AND RS.340.80 LAKH AS ON 31.03.2009 AND BY CONSIDERING THE CORRECT AMOUNT OF RS.790.93 LACS IN PLACE OF WRONG AMOUNT OF RS.709.93 LACS. WE HOLD THAT PARA 6 OF THE IMPUGNED TRIBUNAL ORDER SHOULD READ A S UNDER:- 6. LEARNED AR OF THE ASESSEE HAS ALSO PLACED RELIA NCE ON THE DECISION OF HON'BLE KARNATAKA HIGH COURT RENDERED I N THE CASE OF CCI LIMITED VS. JCIT, 250 CTR 291 WHEREIN IT IS HELD THAT IF THE ASSESSEE IS DEALER IN SHARES, IT HAS TO BE ACCE PTED THAT DIVIDEND INCOME IS INCIDENTAL TO HIS BUSINESS OF DE ALING IN THE SHARES AND THEREFORE, THE EXPENDITURE INCURRED IN A CQUIRING SHARES, CANNOT BE APPORTIONED TO THE EXTENT OF DIVI DEND INCOME FOR MAKING DISALLOWANCE U/S 14A OF THE ACT. IN THE PRESENT CASE, THIS HAS TO BE EXAMINED AS TO WHETHER THE ASS ESSEE IS DEALER IN SHARES OR NOT. IN THIS REGARD, WHEN WE EX AMINE THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE FOR THE YEAR ENDED AS ON 31.03.2008, PARTICULARLY SCHEDULE-8, APPEARING ON P AGE NO. 12 OF THE PAPER BOOK, WE FIND THAT THE ASSESSEE HAS SH OWN AN INCOME OF RS.728.23 LACS ON ACCOUNT OF GAIN ON SHOR T TERM INVESTMENT IN ADDITION TO DIVIDEND INCOME OF RS.90. 18 LACS AND THEREFORE, IT IS SEEN THAT THE ASSESSEE IS NOT A DE ALER IN SHARES BUT INVESTOR IN SHARES. SIMILARLY, AS PER SCHEDULE- 8 TO THE PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED AS ON 31.03.2009, APPEARING ON PAGE NO. 34 OF THE PAPER BOOK, THE ASSESSEE IS S HOWING INCOME OF RS.10.13 LACS UNDER THE HEAD PROFIT FROM TRADING IN SECURITIES AND IN THE PREVIOUS YEAR COLUMN, THE AS SESSEE IS SHOWING INCOME OF RS.790.93 LACS UNDER THE SAME HEA DING WHEREAS IN THE SCHEDULE-8, FOR THE PRECEDING YEAR, THE ASSESSEE IS SHOWING INCOME OF RS.728.23 LACS UNDER THE HEADI NG GAIN ON SHORT TERM INVESTMENT AND RS.62.70 LACS UNDER THE H EADING PROFIT FROM DERIVATIVE. BOTH THESE ITEMS WERE CLUBB ED TOGETHER IN THE YEAR ENDING ON 31.03.2009 FOR SHOWING AS INC OME UNDER 5 THE HEADING PROFIT FROM TRADING IN SECURITIES AND T HEREFORE, IT CANNOT BE ACCEPTED THAT THE ASSESSEE COMPANY IS DEA LING IN SHARES MERELY BECAUSE IN ONE YEAR, A DIFFERENT NOME NCLATURE IS GIVEN TO REPORT THE INCOME BECAUSE, GENERALLY TRADI NG INCOME IS NOT REPORTED IN NET FIGURE BUT IS REPORTED BY SHOWI NG OPENING STOCK, PURCHASE, CLOSING STOCK AND SALE. A SPECIFIC APPROVED METHOD OF VALUING CLOSING STOCK IS ALSO DISCLOSED I N SUCH CASES WHICH HAS TO BE CONSISTENTLY FOLLOWED BY THE ASSESS EE. IN THE PRESENT CASE, ALL THESE FEATURES ARE MISSING. THERE FORE, THIS JUDGMENT OF HON'BLE KARNATAKA HIGH COURT IS NOT APP LICABLE BECAUSE THE ASSESSEE IS NOT DEALER IN PRESENT CASE. 5. HENCE, WE FIND THAT EVEN AS PER THE AMENDED PARA 6 AS ABOVE, THE RESULT IS SAME BECAUSE IN FACT, THE FIGURES OF INVESTMENTS AS ON 31.03.2008 & 31.03.2009 NOTED EARLIER WERE NOT THE BASIS OF THE DECISION. T HE BASIS OF DECISION WAS REPORTING OF NET INCOME INSTEAD OF REPORTING OPENING STOCK, P URCHASE, SALE AND CLOSING STOCK. THIS WAS ALSO A BASIS OF THE DECISION THAT THE ASSE SSEE HAS NOT REPORTED THE METHOD OF VALUING CLOSING STOCK AS REQUIRED. THESE BASIS R EMAIN AS BEFORE EVEN AFTER THE AMENDMENT IN PARA 6. MOREOVER, OTHER REASONS ARE GI VEN IN PARAS 6.1 AND 6.2 OF THE IMPUGNED TRIBUNAL ORDER BECAUSE MAJOR DISCUSSION IS IN THESE TWO PARAS REGARDING THIS FINDING THAT THE ASSESSEE COMPANY IS NOT DEALI NG IN SHARES. HENCE, THESE PARAS ARE ALSO REPRODUCED HEREIN BELOW:- 6.1 WE HAVE ALSO SEEN THAT IN SCHEDULE NO. 6 OF TH E BALANCE SHEET AS APPEARING ON PAGE 11 OF THE PAPER BOOK, TH E ASSESSEE IS SHOWING INVENTORIES ON ACCOUNT OF SHARES OF UNLISTE D INDIAN COMPANIES RS. 53 LACS AND LISTED SECURITIES RS. 243 1.49 LACS AS ON 31.03.2008. SIMILARLY, AS ON 31.03.2009 ALSO ON PAGE 33 OF THE PAPER BOOK, INVENTORY OF RS. 53 LACS OF SHARES OF U NLISTED INDIAN COMPANIES AND RS. 795.36 LACS OF LISTED SECURITIES IS SHOWN AS INVENTORIES. BUT MERELY GIVING A NOMENCLATURE OF IN VENTORIES TO THE STOCK OF SHARES CANNOT CHANGE THE NATURE OF INV ESTMENT IN SHARES INTO TRADING IN SHARES PARTICULARLY WHEN THE ASSESSEE COMPANY IS VALUING INVENTORIES OF TRADING GOODS AT COST OR MARKET PRICE WHICHEVER IS LOWER BUT THE STOCK OF SHARES IS VALUED AT COST AS STATED ON PAGE 13 AND 35 OF THE PAPER BOOK. 6.2 MOREOVER IN CLAUSE 17 OF NOTES TO ACCOUNTS FOR YEAR ENDING ON 31.03.2008 ON PAGE 16 OF PAPER BOOK AND IN CLAUSE 1 8 OF NOTES TO ACCOUNTS FOR YEAR ENDING ON 31.03.2009 ON PAGE 37 O F PAPER BOOK, IT IS STATED THAT THE COMPANY IS ENGAGED IN T RADING OF VARIOUS COMMODITIES AND QUANTITATIVE DETAILS AS REQ UIRED BY PARAGRAPH 3 OF PART II TO THE SCHEDULE VI OF THE CO MPANIES ACT, 6 1956 ARE STATED IN THESE PARAS WHICH INCLUDE AGRI C OMMODITIES, DIAMONDS, IRON ORE FINES AND METALS BUT THE SHARES ARE NOT INCLUDED HERE. IN OTHER WORDS, THE QUANTITATIVE DET AILS AS REQUIRED BY PARAGRAPH 3 OF PART II TO THE SCHEDULE VI OF THE COMPANIES ACT, 1956 ARE NOT GIVEN IN RESPECT OF SHARES. IT SH OWS THAT AS PER THE ASSESSEE ALSO, THE COMPANY IS NOT DEALING IN SH ARES BECAUSE HAD THE ASSESSEE COMPANY WAS DEALING IN SHARES, IT MUST HAVE GIVEN QUANTITATIVE DETAILS AS REQUIRED BY PARAGRAPH 3 OF PART II TO THE SCHEDULE VI OF THE COMPANIES ACT, 1956 FOR SHAR ES ALSO AS WAS GIVEN FOR OTHER COMMODITIES. HENCE WE HAVE NO H ESITATION IN HOLDING THAT AS PER THE FACTS COMING OUT FROM ABOVE DISCUSSION, THE ASSESSEE COMPANY WAS NOT DEALING IN SHARES. 6. ON COMBINED READING OF AMENDED AND RECTIFIED PAR A 6 OF THE TRIBUNAL ORDER AS ABOVE AND PARA 6.1 AND 6.2 OF THE IMPUGNED TRIBUNAL ORDER REPRODUCED ABOVE, IT CAN BE SEEN THAT BASIS OF THE DECISION OF THE TRIBU NAL THAT ASSESSEE COMPANY IS NOT DEALING IN SHARES IS NOT THE AMOUNT OF INVESTMENT A S ON 31.03.2008 OF RS.60.20 LAKH AND AS ON 31.03.2009 RS.340.80 LAKH. THE BASIS OF D ECISION IS THIS THAT ASSESSEE ITSELF IS SHOWING INCOME IN THE MANNER WHICH DOES N OT SUGGEST THAT THE ASSESSEE IS DEALING IN SHARES. IN ONE YEAR I.E. IN AY 2008-09, THE ASSESSEE IS SHOWING INCOME OF RS.728.23 LAKH UNDER THE HEADING GAIN ON SHORT TERM INVESTMENT AND RS.62.70 LAKH UNDER THE HEADING PROFIT FROM DERIVATIVE. THE TOTAL S OF THESE COMES TO RS.790.93 LAKH AND IN AY 2009-10, THE ASSESSEE IS SHOWING INC OME OF RS.10.13 LAKH UNDER THE HEAD PROFIT FROM TRADING IN SECURITIES AND AGAINST THIS AMOUNT, UNDER THE HEAD PROFIT FROM TRADING IN SECURITIES, IN THE PREVIOUS YEAR CO LUMN, THE ASSESSEE IS SHOWING INCOME OF RS.790.93 LAKH, WHICH IS THE TOTAL OF INC OME OF RS.728.23 UNDER THE HEADING GAIN ON SHORT TERM INVESTMENT AND RS.62.70 LAKH UNDER THE HEADING PROFIT FROM DERIVATIVE. BASED ON THESE FACTS AND ALSO THIS FACT THAT THE ASSESSEE COMPANY HAS NOT REPORTED THE TRANSACTION IN SHARE IN THE FO RM OF OPENING STOCK, PURCHASE, CLOSING STOCK AND SALES AND SHOWING NET INCOME THER E FROM ALONG WITH THIS FACT THAT THE ASSESSEE IS NOT DISCLOSING THE METHOD OF VALUIN G CLOSING STOCK OF SHARE. INFERENCE HAS BEEN DRAWN BY THE TRIBUNAL IN PARA 6 THAT ALL THESE SUGGEST THAT THE ASSESSEE IS NOT DEALING IN SHARES. APART FROM THIS, IT IS ALSO NOTED BY THE TRIBUNAL IN PARA 6.1 THAT MERELY GIVING NOMENCLATURE OF INVENTO RIES TO THE STOCK OF SHARES 7 CANNOT CHANGE THE NATURE OF INVESTMENT IN SHARES IN TO TRADING IN SHARES PARTICULARLY WHEN ASSESSEE COMPANY IS VALUING INVENTORIES OF TRA DING GOODS AT COST OR MARKET PRICE WHICHEVER IS LOWER BUT THE STOCK OF SHARES IS VALUED AT COST AS STATED ON PAGE 13 AND 35 OF THE PAPER BOOK. APART FROM THIS, IT IS ALSO NOTED BY THE TRIBUNAL IN PARA 6.2 OF THE TRIBUNAL ORDER THAT THE ASSESSEE COMPANY IS ENGAGED IN TRADING OF VARIOUS COMMODITIES AND QUANTITY DETAILS AS REQUIRED BY PAR AGRAPH 3 OF PART II TO THE SCHEDULE VI OF THE COMPANIES ACT, 1956 ARE STATED W ITH REGARD TO AGRI COMMODITIES, DIAMONDS, IRON ORE FINES AND METALS BUT THE QUANTIT ATIVE DETAILS OF SHARES ARE NOT INCLUDED IN THESE QUANTITATIVE DETAILS. HENCE, IT I S SEEN THAT QUANTITATIVE DETAILS ARE NOT GIVEN BY THE ASSESSEE IN RESPECT OF SHARES AND FROM THIS, INFERENCE HAS BEEN DRAWN BY THE TRIBUNAL THAT AS PER THE ASSESSEE ALSO , THE ASSESSEE COMPANY IS NOT DEALING IN SHARES BECAUSE HAD THE ASSESSEE COMPANY WAS DEALING IN SHARES, IT MUST HAVE GIVEN QUANTITATIVE DETAILS AS REQUIRED BY PARA GRAPH 3 OF PART II TO THE SCHEDULE VI OF COMPANIES ACT, 1956 FOR SHARES ALSO AS WAS GI VEN FOR OTHER COMMODITIES. HENCE IT IS SEEN THAT MERELY BECAUSE SOME WRONG FIG URES AS ON 31.03.2008 AND AS ON 31.03.2009 ARE NOTED BY THE TRIBUNAL IN PARA 6 O F THE IMPUGNED TRIBUNAL ORDER, IT CANNOT BE SAID THAT THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER WHICH WILL RESULT IN THE CHANGE IN ULTIMATE CONCLUSION. WE HAV E SEEN THAT EVEN AFTER OMITTING THESE TWO FIGURES OF CLOSING STOCK AND ADOPTION OF A CORRECT FIGURE IN PLACE OF WRONG FIGURE OF INCOME, THE RESULT AND ULTIMATE CONCLUSIO N REMAIN THE SAME BECAUSE THESE FIGURES WERE NOT AT ALL CONSIDERED AS A BASIS FOR C OMING TO THIS CONCLUSION THAT ASSESSEE IS NOT DEALER IN SHARES. HENCE, WE HAVE AL READY RECTIFIED PARA 6 OF THE TRIBUNAL ORDER BY EXCLUDING THE REFERENCE TO THESE TWO FIGURES OF CLOSING STOCK AS ON 31.03.2008 RS.60.20 LAKH AND AS ON 31.03.2009 RS.34 0.80 LAKH AND WE HAVE ALSO RECTIFIED THE MISTAKE IN INCOME, WHICH WAS NOTED AT RS.709.93 LAKH AND THE CORRECT FIGURE OF RS.790.93 LAKH IS NOTED IN THE AMENDED PA RA 6. HENCE THESE TWO MISTAKES HAVE BEEN RECTIFIED. REGARDING THIRD ALLEG ED MISTAKE THAT BALANCE SHEET AS ON 31.03.2008 AND 31.03.2009 SHOWING CLOSING STOCK OF SHARES AT RS.2431 LAKH AND RS.795.36 LAKH IS NOT CONSIDERED BY TRIBUNAL IS FAC TUALLY INCORRECT BECAUSE BOTH THESE 8 FIGURES ARE DULY CONSIDERED IN PARA 6.1 OF THE TRIB UNAL ORDER AS REPRODUCED ABOVE. HENCE, THE ULTIMATE CONCLUSION REMAINS THE SAME. EV EN IF THERE IS A MISTAKE IN THE TRIBUNAL ORDER IN COMING TO THIS CONCLUSION THAT TH E ASSESSEE IS NOT A DEALER IN SHARES, SUCH MISTAKE, IF ANY, IS NOT AN APPARENT MI STAKE RECTIFIABLE U/S 254 (2). ACCORDINGLY, BOTH THE MAS OF THE ASSESSEE STAND DIS POSED OF IN THE TERMS INDICATED ABOVE. 7. IN THE RESULT, BOTH THE MAS OF THE ASSESSEE STAN D DISPOSED OF IN THE TERMS INDICATED ABOVE. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUNIL KUMAR YADAV) (A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 07/10/2015 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR