Shri Yogesh Kirchand Shah,, Ahmedabad v. The Income Tax Officer, Ward-3(2),, Ahmedabad

ITA 1168/AHD/2015 | 2008-2009
Pronouncement Date: 29-11-2017 | Result: Allowed

Appeal Details

RSA Number 116820514 RSA 2015
Assessee PAN AEDPS4653L
Bench Ahmedabad
Appeal Number ITA 1168/AHD/2015
Duration Of Justice 2 year(s) 6 month(s) 24 day(s)
Appellant Shri Yogesh Kirchand Shah,, Ahmedabad
Respondent The Income Tax Officer, Ward-3(2),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted B
Tribunal Order Date 29-11-2017
Assessment Year 2008-2009
Appeal Filed On 05-05-2015
Judgment Text
I.T.A. NO. 1168 /AHD/201 5 ASSESSMENT Y EAR: 20 08 - 09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD [CORAM : PRAMOD KUMAR AM ] I.T.A. NO. 1168 /AHD/201 5 ASSESSMENT Y EAR : 20 08 - 09 YOGESH KIRCHAND SHAH ....... ...........APPELLANT 1182/1 OPP. GHANCHI - NI - POLE MG HAVELI ROAD MANEKCHOWK AHMEDABAD 380 001. [PAN : A EDPS 4653 L ] VS. INCOME TAX OFFICER WARD 3(2) AHMEDABAD . ............................RESPONDENT APPEARANCES BY: ARTI N. SHAH FOR THE APPELLANT SANTOSH KARNANI FOR THE RESPONDENT DATE OF CONC LUDING THE HEARING : 2 0 . 11 .2017 DATE OF PRONOUNCING THE ORDER : 29 .11 . 2017 O R D E R 1. BY WAY OF THIS APPEAL THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 2 ND MARCH 2015 PASSED BY THE LD. CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 ( THE ACT HEREINAFTER ) FOR THE ASSESSMENT YEAR 20 08 - 09 . 2. IN THE FIRST GROUND O F APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GRIEVANCE: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 10 AHMEDABAD HAS ERRED IN LAW AND ON F A CTS OF THE CASE IN CONFIRMING THE LEGALITY OF ISSUE OF NOTICE U/S.147 OF THE I.T. ACT BY THE ASSESSING OFFICER THOUGH THE ORIGINAL ASSESSMENT WAS CARRIED OUT U/S.143(3) OF THE I.T. ACT 1961. 3 . THE RELEVANT MATE RIAL FACTS ARE LIKE THIS. ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS ORIGINALLY COMPLETED ON 03.11.2010 ACCEPTING THE RETURNED I.T.A. NO. 1168 /AHD/201 5 ASSESSMENT Y EAR: 20 08 - 09 PAGE 2 OF 3 INCOME. SUBSEQUENTLY HOWEVER THE ASSESSMENT WAS REOPENED BY ISSUANCE OF NO T ICE UNDER SECTION 148 ON 29.05.2012. THE REAS ONS FOR REOPENING THE ASSESSMENT WERE STATED TO BE A S FOLLOWS : - THE ASSESSEE IS ENGAGED BUSINESS OF TRADING IN SHARES AND ALSO INCOME FROM LTCG AND STCG ON SALE OF SHARES. THE ASSESSEE FILED RETURN OF INCOME ON 29.09.2008 DECLARING LOSS OF RS.2 78 18 37 - . AND ALSO SHOWN STCG OF RS. 42 79 066 / - AND EXEMPT LTCG OF 27 65 699 / - ON SALE OF SHARES. FURTHER ON VERIFICATION OF FORM NO.10DB IT REVILES THAT THE ASSESSEE HAD DONE ALL TYPES OF SHARE TRANSACTION AS UNDER. 1. SALE OF SHARES RS. 1 84 14 493 (ACTUAL DE LIVERY) 2. PURCHASE OF SHARES RS. 93 86 962 (ACTUAL DELIVERY) 3. SALE OF SHARES RS. 11 94 583 (WITHOUT ACTUAL DELIVERY) 4. SALE OF DERIVATIVES RS. 1 84 14 493 (WITHOUT ACTUAL DELIVERY) 5. PURCHASE OF SHARES RS. 98 86 963 (WITHOUT ACTUAL DELIVER Y) THE ASSESSEE HAS SHOWN LTCG AND STCG ON FIRST TWO TYPE OF TRANSACTION AS INVESTMENT AND IN RESPECT OF OTHER TYPES OF TRANSACTION THE ASSESSEE HAS SHOWN AS HIS BUSINESS INCOME. CONSIDERING THE VOLUME AND NATURE OF TRANSACTIONS THE INCOME FROM LTCG AND STCG IS TO BE TREATED AS BUSINESS INCOME AND IT CLEARLY INDICATE THAT THE BIFURCATION OF INCOME HAS BEEN DONE TO REDUCE THE TAX LIABILITY. THIS HAS RESULTED INTO UNDE R ASSESSMENT TO THE TUNE OF RS. 70 44 765 / - . IN VIEW OF THE ABOVE I AM SATISFIED THAT INC OME CHARGEABLE TO TAX HAS ESCAPE ASSESSMENT THE ABOVE EXTENT WITHIN THE MEANING OF EXPLANATION 2 (C) TO SECTION 147 OF THE IT ACT AND IT IS A FIT CASE FOR REOPENING THE ASSESSMENT. ISSUE NOTICE U/S 148 OF THE IT ACT. 4. THE ASSESSEE DID RAISE OBJECTIONS AGAINST THE SAID REOPENING BUT WITHOUT ANY SUCCESS. AS REGARDS THE ASSESSEE S CONTENTION THAT ALL THESE ASPECTS WERE DULY CONSIDERED BY THE ASSESSING OFFICER AT THE ASSESSMENT STAGE WHILE SUBMISSIONS HAVING BEEN FILED ON THESE ISSUES WAS NOT DOUBTED I T WAS STATED HAT THERE IS NO REFER EN CE IN THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER HAS TAKEN COGNISANCE OF THE SUBMISSIONS OF THE ASSESSEE . AGGRIEVED ASSESSEE CARRIED THIS ISSUE IN APPEAL BUT WITHOUT ANY SUCCESS. THE ASSESSEE IS NOT SATISFIED A ND IS IN SECOND APPEAL BEFORE ME. 5 . I HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF APPLICABLE LEGAL POSITION. 6. I HAVE NOTED THAT BEYOND ANY DISPUTE OR CONTROVERSY THE TRANSACTI ONS RELATING TO LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL GAIN WERE DULY EXAMINED BY THE ASSESSING OFFICER AND THE ASSESSEE MADE ELABORATE SUBMISSION S ON THESE ISSUES COPIES OF WHICH ARE ALSO PLACED BEFORE ME IN PAPER BOOK. THERE IS ALSO NO DISPUTE THAT NO FRESH MATERIAL WHICH WAS NOT BEFORE THE ASSESSING I.T.A. NO. 1168 /AHD/201 5 ASSESSMENT Y EAR: 20 08 - 09 PAGE 3 OF 3 OFFICER AT THE ORIGINAL ASSESSMENT STAGE HAS COME TO LIGHT NOW. IN THESE CIRCUMSTANCES I AM OF THE CONSIDERED VIEW THAT IT WAS CERTAINLY NOT A FIT CASE FOR REOPENING THE ASSESSMENT MERELY BECAU SE THE ASSESSING OFFICER HAS NOT WRITTEN A DETAILED ORDER ANALYSING THE STAND OF THE ASSESSEE. I THEREFORE QUASH THE IMPUGNED REASSESSMENT PROCEEDINGS. 7 . IN THE RESULT THE APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 29 TH DAY O F NOVEMBER 2017. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: AHMEDABAD THE 29 TH DAY OF NOVEMBER 2017. PBN/* COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES AHMEDABAD