DCIT, New Delhi v. M/s. Bulls & Bears Portfolios Ltd., New Delhi

ITA 4699/DEL/2011 | 2007-2008
Pronouncement Date: 28-12-2011 | Result: Dismissed

Appeal Details

RSA Number 469920114 RSA 2011
Assessee PAN AABCB8436B
Bench Delhi
Appeal Number ITA 4699/DEL/2011
Duration Of Justice 2 month(s) 1 day(s)
Appellant DCIT, New Delhi
Respondent M/s. Bulls & Bears Portfolios Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 28-12-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 28-12-2011
Assessment Year 2007-2008
Appeal Filed On 27-10-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI I.P. BANSAL JUDICIAL MEMBER ITA NO.4699/DEL/2011 ASSESSMENT YEAR : 2007-08 DCIT CIRCLE 3 (1) NEW DELHI. VS. BULLS & BEARS PORTFOLIOS LTD. D-3 IIIRD FLOOR DEFENCE COLONY NEW DELHI. PAN : AABCB8436B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANJEEV AGGARWAL DIRECTOR REVENUE BY : SHRI A.K. MONGA SR. DR ORDER PER I.P. BANSAL JM: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIRECT ED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 16 TH AUGUST 2011 FOR ASSESSMENT YEAR 2007-08. THE GROUNDS APPEAL READ AS UNDER:- 1. THE ORDER OF THE LEARNED CIT (A) IS ERRONEOUS & CONTRARY TO FACTS AND LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A) HAS ERRED IN DIRECTING THE A.O. TO TREAT INCOME OF RS.2764376/- FROM SHARES AS SHORT TERM CAPI TAL GAIN AS AGAINST BUSINESS INCOME TREATED BY THE A.O. 3. ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.279709/- MADE U/S 14A OF THE IT ACT BEING THE EXPEN SES INCURRED FOR EARNING EXEMPT INCOME. ITA NO.4699/DEL/2011 2 4. (I) ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A) HAS ERRED IN DELETING THE ADD ITION OF RS.33008/- MADE ON ACCOUNT OF D-MAT EXPENSES EVEN THOU GH THE ASSESSEE HAD FAILED TO FILE THE DETAILS OF EXPENSES BEFORE THE A.O. AND THE CIT (A). (II) THE LEARNED CIT (A) HAS ERRED IN APPLYING THE P RINCIPLE OF CONSISTENCY TO GIVE RELIEF TO THE ASSESSEE IGNORING THAT THE PRINCIPLE OF CONSISTENCY IS APPLICABLE WHEN THE FACTS ARE IDENTICAL AND THAT IN THE ABSENCE OF DETAILS IT CANNOT BE SAID THAT TH E FACTS THIS YEAR ARE THE SAME AS IN THE EARLIER YEAR. 5. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND MODIFY ALTER ADD OR FOREGO ANY GROUND (S) OF APPEA L AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. THE RETURN OF INCOME IN THE PRESENT CASE WAS FILED BY THE ASSESSEE AT A LOSS OF ` 2 49 78 845/- WHICH HAS BEEN ASSESSED AT A LOSS OF ` 2 19 01 750/-. APART FROM MAKING DISALLOWANCES OF 14A AND D-MAT CHARGES OF ` 2 79 709/- AND ` 33 008/- RESPECTIVELY THE ASSESSING OFFICER TREATED THE CAPITAL GAIN SHOWN BY THE ASSESSEE O N SALE AND PURCHASE OF SHARES OF ` 27 64 376/- AS BUSINESS INCOME OF THE ASSESSEE AND IN THIS MANNER THE LOSS OF THE ASSESSEE HAS BEEN DETE RMINED AT ` 2 19 01 750/- IN PLACE OF RETURNED LOSS OF ` 2 49 78 845/-. LEARNED CIT (A) HAS DIRECTED THE ASSESSING OFFICER TO TREAT THE AFOR EMENTIONED INCOME ARISING OUT OF SHARES OF ` 27 64 376/- AS SHORT-T ERM CAPITAL GAIN INSTEAD OF BUSINESS INCOME TREATED BY THE ASSESSING OFFICER . IT IS THE CASE OF THE ASSESSEE THAT IN WHATEVER MANNER AFOREMENTIO NED AMOUNT OF ` 27 64 376/- IS TREATED THE NET EFFECT OF THE SA ME IS THAT IT HAS TO BE ADJUSTED AGAINST THE BUSINESS LOSS. THEREFORE IT IS TH E CASE OF THE ASSESSEE THAT EVEN IF IT IS ACCEPTED THAT THE AFORESAID A MOUNT IS ASSESSABLE AS BUSINESS INCOME IT WILL NOT HAVE ANY IMPACT ON TAX BURDEN. THEREAFTER IT IS THE CASE OF THE ASSESSEE THAT THE TAX EFFECT WHICH SHOULD BE COMPUTED IS IN RESPECT OF AMOUNT OF ` 2 79 709/- AND ` 33 008/- WHICH ARE IN RESPECT OF DISALLOWANCE U/S 14A AND D-MAT CHARGES THE TAX EFFECT ON WHICH WILL BE LESS THAN ` 3 LAC. THE ASSESSEE ITA NO.4699/DEL/2011 3 HAS SUBMITTED A TAX CALCULATION IN THIS REGARD AND IT WILL BE RELEVANT TO REPRODUCE THE SAME BELOW:- AS PER ORDER U/S 143 (3) DTD. 13.11.2009 AS PER ORDER U/S 143 (3) DTD. 13.11.2009 AS PER ORDER U/S 143 (3) DTD. 13.11.2009 AS PER ORDER U/S 143 (3) DTD. 13.11.2009 AFTER CIT (A) ORDER DTD. 16.8.2011 AFTER CIT (A) ORDER DTD. 16.8.2011 AFTER CIT (A) ORDER DTD. 16.8.2011 AFTER CIT (A) ORDER DTD. 16.8.2011 (A) (A) (A) (A) (B) (B) (B) (B) 1 INCOME FROM BUSINESS PROFESSION AS PER COMPUTATION/IT RETURN -24978845 INCOME FROM BUSINESS OR PROFESSION AS PER COMPUTATION/IT RETURN -24978845 ADD: RETURNED STCG TREATED AS BUSINESS INCOME 2764376 STCG ALLOWED AS CAPITAL GAIN 2764376 DISALLOWANCE U/S 14A MADE 279709 DISALLOWANCE U/S 14A DELETED 0 DEMAT CHARGES DISALLOWED 33008 ____________ DEMAT CHARGES ALLOWED 0 ____________ ASSESSED INCOME/(LOSS) -21901752 INCOME AFTER CIT (A) ORDER -22214469 BOTH THE ASSESSED INCOME AS WELL AS INCOME AFTER CIT (A) ORDER ARE AT LOSS THEREFORE THE DIFFERENCE IN BOTH THESE LOSSES TO BE TAKEN AS NOTIONAL INCOME. THEREFORE NOTIONAL INCOME FOR TAX EFFECT CALCULATION. ______________ ____________ 2. TOTAL TAXABLE INCOME (ROUNDED OFF) -21901750 -22214469 3. NOTIONAL TAX ON ABSOLUTE TAXABLE INCOME @ 30% 6570525 6570525 6570525 6570525 6664341 6664341 6664341 6664341 4. S/C @ 10% 657053 666434 5. CESS @ 2% 144552 146615 6. TOTAL TAX PAYABLE (X) TOTAL TAX PAYABLE (X) TOTAL TAX PAYABLE (X) TOTAL TAX PAYABLE (X) 7372130 7372130 7372130 7372130 (Y) (Y) (Y) (Y) 7477391 7477391 7477391 7477391 7. NOTIONAL TAX EFFECT (X) (X) (X) (X) (Y) (Y) (Y) (Y) - -- - 105261 105261 105261 105261 3. THUS AT THE OUTSET IT WAS THE CASE OF THE LEARNED AR THAT THE DEPARTMENTAL APPEAL SHOULD NOT BE ADMITTED FOR THE R EASON THAT THE TAX EFFECT IN THE PRESENT CASE IS LESS THAN ` 3 LAC. 4. THE LEARNED DR HAD FILED AN APPLICATION FOR ADJO URNMENT BUT THE SAME WAS REJECTED AS THE CONTENTION OF THE ASSESSEE WAS FOU ND TO BE CORRECT THAT THE TAX EFFECT IN THE PRESENT CASE IS LESS THAN ` 3 LAC. ITA NO.4699/DEL/2011 4 5. FINDING THAT THE TAX EFFECT IN THE PRESENT CASE IS LESS THAN ` 3 LAC WE DISMISS THE DEPARTMENTAL APPEAL BEING UN-ADMITTED O N THE GROUND OF LOW TAX EFFECT. THE PRESENT APPEAL IS FILED ON 27 TH OCTOBER 2011 AND VIDE INSTRUCTIONS NO.3 OF 2011 DATED 9 TH FEBRUARY 2011 ISSUED BY CBDT THE TAX LIMIT FOR FILING THE APPEAL BY THE DE PARTMENT IS FIXED AT ` 3 LAC. IN VIEW OF THE ABOVE DISCUSSION THE APPEAL FI LED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT THE APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 28.12.20 11. SD/- SD/- [G.D. AGRAWAL] [I.P. BANSAL] VICE PRESIDENT JUDICIAL MEMBER DATED 28.12.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES