Assistant Commissioner of Income tax,, Pune v. Smt. Gauri Avinash Bhosale,, Pune

ITA 1303/PUN/2017 | 2013-2014
Pronouncement Date: 25-11-2019 | Result: Dismissed

Appeal Details

RSA Number 130324514 RSA 2017
Assessee PAN AAIPB7421J
Bench Pune
Appeal Number ITA 1303/PUN/2017
Duration Of Justice 2 year(s) 6 month(s) 3 day(s)
Appellant Assistant Commissioner of Income tax,, Pune
Respondent Smt. Gauri Avinash Bhosale,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2019
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 25-11-2019
Last Hearing Date 19-07-2019
First Hearing Date 19-07-2019
Assessment Year 2013-2014
Appeal Filed On 22-05-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH PUNE BEFORE SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI J UDICIAL MEMBER . / ITA NO . 1303 /PUN/201 7 / ASSESSMENT YEAR : 20 1 3 - 1 4 ASST. COMMISSIONER OF INCOME TAX CIRCLE - 2 PUNE ....... / APPELLANT / V/S. SMT. GAURI AVINASH BHOSALE 2 ABIL HOUSE RANGE HILL CORNER GANESH KHIND ROAD PUNE - 411007 PAN: AAIPB7421J / RESPONDENT . / ITA NO.1445/PUN/2017 / ASSESSMENT YEAR : 2012 - 13 SMT. GAURI AVINASH BHOSALE 2 ABIL HOUSE RANGE HILL CORNER GANESH KHIND ROAD PUNE - 411007 PAN: AAIPB7421J ....... / APPELLANT / V/S. ASST. COMMISSIONER OF INCOME TAX CIRCLE - 2 PUNE / RESPONDENT 2 ITA NO S . 1303 & 1445 /PUN/201 7 A.Y S . 201 3 - 1 4 & 2012 - 13 ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI H O SHANG BOMAN IRANI / DATE OF HEARING : 1 8 - 1 1 - 2019 / DATE OF PRONOUNCEMENT : 2 5 - 1 1 - 2019 / ORDER PER S.S. VISWANETHRA RAVI JM : THE ABOVE SAID TWO APPEALS BY THE REVENUE AND ASSESSEE FILED AGAINST SEPARATE ORDERS DATED 28.02.2017 AND 27.02.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - III PUNE [CIT(A)] FOR ASSESSMENT YEARS 2013 - 14 AND 2012 - 13 RESPECTIVELY. 2. THE ONLY ISSUE EMANATING FROM BOTH THE APPEALS WHETHER SET OFF OF LONG TERM CAPITAL GAINS (LTCG) IS ALLOWED AGAINST BROUGHT FORWARD LONG TERM CAPITAL LOSS (LTCL) IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. SHRI NIKHIL PATHAK THE LD. AR SUBMITS THE FACTS AND CIRCUMSTANCES IN BOTH THE APPEALS ARE SIMILAR AND IDENTICAL AND PRAYED TO TAKE FACTS IN ASSESSEES APPEAL AS LEAD CASE THEREFORE W ITH THE CONSENT OF BOTH THE PARTIES WE PROCEED TO HEAR BOTH CASES TOGETHER AND PASS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 4. FIRST WE SHALL TAKE UP APPEAL IN ITA NO.1445/PUN/2017 FOR ASSESSMENT YEAR 2012 - 13. 3 ITA NO S . 1303 & 1445 /PUN/201 7 A.Y S . 201 3 - 1 4 & 2012 - 13 5 . HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE PRESENT CASE THE ASSESSEE IS AN INDIVIDUAL AND DERIVED INCOME FROM HOUSE PROPERTY CAPITAL GAINS AND INCOME FROM OTHER SOURCES. THE ASSESSEE FILED RETURN OF INCOME DECLARING A TOT AL INCOME OF RS.31 33 218/ - . NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED IN RESPONSE TO WHICH AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER AND FILED REQUIRED DETAILS. 6. WE FIND THAT THE ASSESSEE CLA IMED SET OFF OF LONG TERM CAPITAL GAINS ARISING FROM THE SALE OF FLAT IN MUMBAI AGAINST BROUGHT FORWARD CAPITAL LOSS ARISING FROM SALE OF SHARES OF PUBLIC LIMITED COMPANY LISTED IN STOCK EXCHANGE. THE ASSESSING OFFICER HELD LONG TERM CAPITAL GAINS WHERE S TT IS PAID IS EXEMPT FROM TAX U/S 10(38) OF THE ACT . HE HELD THE LOSS ARISING FROM THE SALE OF SHARES OF LISTED COMPANIES IN STOCK EXCHANGE WITH STT PAID IS DEAD LOSS AND DENIED SET OFF OF LONG TERM CAPITAL GAINS AGAINST BROUGHT FORWARD LOSS . THE CIT(A) CONFIRMED THE VIEW OF ASSESSING OFFICER. SHRI NIKHIL PATHAK LD. AR SUBMITTED THAT THE SAME CIT(A) FOR ASSESSMENT YEAR 2013 - 14 WHICH IS IMPUGNED BEFORE THIS TRIBUNAL IN ITA NO.1303/PUN/2017 BY THE REVENUE HAS ALLOWED THE CLAIM OF ASSESSEE IN SETTING OFF LTCG AGAINST BROUGHT FORWARD LONG TERM CAPITAL LOSS AND PLACED RELIANCE ON THE ORDER OF THIS TRIBUNAL IN THE CASE OF SHRI SOMNATH VAIJANATH SAKRE . 7. WE FIND THAT CO - ORDINATE BENCH OF THIS TRIBUNAL IN ITS CONSOLIDATED ORDER DATED 08 - 03 - 2019 IN THE CASE OF SHRI SOMNATH VAIJANATH SAKRE IN ITA NO.2986/PUN/2016 AND ITA NO.2605/PUN/2016 FOR ASSESSMENT YEAR 4 ITA NO S . 1303 & 1445 /PUN/201 7 A.Y S . 201 3 - 1 4 & 2012 - 13 2012 - 13 HELD THAT THE ASSESSEE THEREIN IS ENTITLED TO SET OFF LOSS OF LONG TERM CAPITAL GAINS FROM THE SHARES ON WHICH SECURITY TRANSACTION IS PAID OR PAYA BLE AGAINST T HE LONG TERM CAPITAL GAINS EARNED FROM SHARES ON WHICH NO SECURITY TRANSACTION IS PAID OR PAYABLE. WE NOTE THAT IN ORDER TO COME TO SUCH CONCLUSION CO - ORDINATE BENCH PLACED RELIANCE ON THE ORDER OF MUMBAI ITAT IN THE CASE OF RAPTAKOS BRETT & CO. LTD. VS. DCIT IN ITA NO.3317/MUM/2009 & ITA NO.1692/MUM/2010 DATED 10.06.2015. WE FIND THE FACTS AND CIRCUMSTANCES OF THE SAID CASE ARE SIMILAR BASING ON SAME IDENTICAL FACTS. THEREFORE IN OUR OPINION IN THE PRESENT CASE THE ASSESSEE IS ENTITL ED TO SET OFF OF BROUGHT FORWARD LOSSES FROM LONG TERM CAPITAL GAINS FROM THE SHARES LISTED IN STOCK EXCHANGE ON WHICH SECURITY TRANSACTION IS PAID OR PAYABLE. THEREFORE THE ORDER OF CIT(A) IN CONFIRMING THE ORDER OF ASSESSING OFFICER IN NOT ALLOWING SET OFF OF LONG TERM CAPITAL GAINS AGAINST BROUGHT FORWARD LONG TERM CAPITAL LOSS IS NOT JUSTIFIED. THUS GROUND NO.1 RAISED BY THE ASSESSEE IS ALLOWED. 8 . IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWED. 9 . NEXT WE SHALL TAKE UP APPEAL IN ITA NO.1303/PUN/2017 FILED BY THE REVENUE FOR ASSESSMENT YEAR 2013 - 14. 10. WE FIND GROUNDS NO.1 TO 3 RAISED BY THE REVENUE ARE SIMILAR TO THE GROUND NO.1 RAISED BY ASSESSEE IN ITA NO.1445/PUN/2017 WHEREIN WE DECIDED THE ISSUE IN FAVOUR OF ASSESSEE IN THE AFOREMENTIONED PARAGRAPHS. THEREFORE THE ORDER OF CIT(A) IN ALLOWING SET OFF OF LONG TERM CAPITAL GAINS 5 ITA NO S . 1303 & 1445 /PUN/201 7 A.Y S . 201 3 - 1 4 & 2012 - 13 AGAINST BROUGHT FORWARD LONG TERM CAPITAL LOSS IS JUSTIFIED. THUS GROUNDS NO.1 TO 3 RAISED BY REVENUE ARE DISMIS SED. 11 . IN THE RESULT THE APPEAL OF REVENUE IS DISMISSED. 12. TO SUM UP THE APPEAL OF ASSESSEE IS ALLOWED AND THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 T H NOVEM BER 2019. SD/ - SD/ - ( ANIL CHATURVEDI ) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 2 5 T H NOVEMB ER 2019 GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 3 PUNE 4. / THE PR. CIT - 2 PUNE 5. / DR ITAT B BENCH PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER / SR. PRIVATE SECRETARY / ITAT PUNE