Shri Hasmukhbhai Nyalchand Vora, (HUF),, Ahmedabad v. The ACIT, Circle-1(1),, Ahmedabad

MA 115/AHD/2014 | 2005-2006
Pronouncement Date: 28-09-2016 | Result: Allowed

Appeal Details

RSA Number 11520524 RSA 2014
Assessee PAN AAAHV9375F
Bench Ahmedabad
Appeal Number MA 115/AHD/2014
Duration Of Justice 2 year(s) 2 month(s) 11 day(s)
Appellant Shri Hasmukhbhai Nyalchand Vora, (HUF),, Ahmedabad
Respondent The ACIT, Circle-1(1),, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 28-09-2016
Assessment Year 2005-2006
Appeal Filed On 17-07-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD BEFORE SHRI PRAMOD KUMAR ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV JUDICIAL MEMBER MA NO. 115/AHD/2014 (ARISING OUT OF ITA NO. 2220/AHD/2010 ) ASSESSMENT YEAR : 2005-06 SHRI HASMUKHBHAI NYALCHAND VORA (HUF) 1 ST FLOOR HN HOUSE NR OLD HIGH COURT NAVRANGPURA AHMEDABAD V/S . ACIT CIRCLE-1(1) AHMEDABAD PAN NO. AAAHV 9375 F (APPLICANT) .. (RESPONDENT) ASSESSEE(S) BY : SHRI S.N. SOPARKAR WITH P.M. MEHTA ARS REVENUE BY : SHRI K. MADHUSUDAN SR DR / DATE OF HEARING : 16/09/2016 /DATE OF PRONOUNCEMENT : 28/09/2016 / O R D E R PER PRAMOD KUMAR ACCOUNTANT MEMBER: BY WAY OF THIS APPLICATION THE ASSESSEE-APPLICANT HAS POINTED OUT A MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 24. 01.2014 PASSED BY THE TRIBUNAL. 2. IT IS PLEADED IN THE APPLICATION THAT THE ASSESS EE HAD EARNED A PROFIT OF RS.31 73 270/- AND CLAIMED IT AS SHORT TERM CAPITAL GAIN IN THE RETURN OF INCOME BUT THE LD. AO HAS TREATED THE ASSESSEE AS A TRADER ENGAGED IN THE TRADING ACTIVITY AND ASSESSED IT AS BUSINESS INCOME . AGGRIEVED BY THE ORDER OF LD. AO THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) AFTER CONSIDERING THE S UBMISSIONS OF THE MA NO.115/AHD/ 2014 ACIT VS SHRI HASMUKHBHAI NYALCHAND VORA- HUF AY 2005- 06 - 2 - ASSESSEE AND TAKING INTO CONSIDERATIONS OF SEVERAL JUDGMENTS OF HONBLE SUPREME COURT AND VARIOUS HIGH COURTS ALLOWED THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE PROFIT ON SALE OF SHAR ES OF NTPC HAS TO BE ASSESSED AS SHORT TERM CAPITAL GAIN. DISSATISFIED WITH THIS ORDER OF THE LD. CIT(A) THE REVENUE PREFERRED APPEAL BEFORE THIS TR IBUNAL. THE TRIBUNAL TOOK NOTE OF ALL THE DECISIONS AND MADE REFERENCE T O THE NUMBER OF SHARES PURCHASED BY THE ASSESSEE AND THE PERIOD OF ITS HOL DINGS. THEREAFTER THE TRIBUNAL CAME TO THE CONCLUSION THAT THE NUMBERS OF SHARES WERE LARGE AND THEREFORE THE ASSESSEE IS TO BE TREATED AS A TRADER . IN THE MISCELLANEOUS APPLICATION IT HAS BEEN POINTED OUT THAT THE TRIBU NAL HAS NOT CONSIDERED THE RATIO OF JUDGMENTS REFERRED IN THE IMPUGNED ORD ER. THE TRIBUNAL HAS NOT TOUCHED EVEN A SINGLE REASON GIVEN BY THE LD. C IT(A) TO DRAW THE INFERENCE THAT THE ASSESSEE IS AN INVESTOR. ACCORDI NG TO LD. COUNSEL FOR THE ASSESSEE THE TRIBUNAL HAS COMMITTED AN APPARENT ER ROR BY NOT REFERRING TO THE REASONS IN THE ORDER IMPUGNED BEFORE IT. IN TH IS REGARD HE PLACED RELIANCE ON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJESH BABUBHAI DAMANIA VS. ITO REPORTED IN [2002] 254 ITR 541. HE TOOK US THROUGH THE FINDINGS OF THE HONBLE HIGH COURT R ECORDED IN THE AFORESAID JUDGMENT. HE ACCORDINGLY SUBMITTED THAT THE MATTER IS REQUIRED TO BE RE-CONSIDERED BY THE TRIBUNAL AND THE IMPUGNE D ORDER MAY BE RECALLED IN RELATION TO THE SAID GROUND. 3. LD. DR ON THE OTHER HAND CONTENDED THAT THE TR IBUNAL HAS APPRECIATED ALL THE FACTS AND CONSIDERED THE NUMBER S OF SHARES PURCHASED BY THE ASSESSEE AND THE PERIOD OF ITS HOLDINGS. THE ASSESSEE HAS PURCHASED THE SHARES FROM NTPC ON 01.11.2004 AND SOLD ON 11.1 1.2004 I.E. WITHIN 10 DAYS OF THE PURCHASE AND THIS FACT LED THE TRIBUNAL TO CONSIDER THESE MA NO.115/AHD/ 2014 ACIT VS SHRI HASMUKHBHAI NYALCHAND VORA- HUF AY 2005- 06 - 3 - TRANSACTIONS AS A TRADING TRANSACTIONS. HE ALSO PO INTED OUT THAT IF SUCH TYPE OF MISCELLANEOUS APPLICATIONS ARE ENTERTAINED THER E ARE LARGE NUMBER OF APPLICATIONS WOULD COME BEFORE THE TRIBUNAL. 4. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. IN THE CASE ON HAND WE DEEM IT PROPER TO MAKE REFERENCE TO THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF RAJESH BABUBHAI DAMANIA (SUPRA) WHEREIN THEIR LORDSHIPS H AVE HELD AS UNDER: 5. THE TRIBUNAL TOTALLY OVERLOOKED THE ASSESSMENT OF EVIDENCE DONE BY THE CIT(A) AND DEALT WITH THE MATTER AS IF IT WAS ENTER TAINING AN APPEAL AGAINST THE ORDER OF THE AO. THERE WAS NO QUESTION OF GIVIN G 'ONE MORE INNINGS' TO THE AO. APPEALS ARE NOT TO BE DECIDED FOR GIVING 'O NE MORE INNINGS' TO THE LOWER AUTHORITIES. IN THE APPELLATE JURISDICTION T HE APPELLATE COURT HAS TO CONSIDER WHETHER THERE IS JUSTIFICATION FOR UPSETTI NG THE ORDER AGAINST WHICH THE APPEAL IS FILED. IN THIS CASE WHERE THE ASSESSE E HAD REPEATEDLY PRODUCED THE CREDITORS BEFORE THE ITO AND HAD FILED AFFIDAVI TS IN SUPPORT OF THE CREDIT ENTRIES AND ALSO FILED CONFIRMATIONS AND GIVEN NAME S AND ADDRESSES OF THE CONCERNED PARTIES AS WELL AS PROVED REPAYMENT OF TH E AMOUNTS BY ACCOUNT PAYEE CHEQUES AND DONE ALL THAT WAS WITHIN HIS POWE R TO PROVE THE GENUINENESS OF THE LOANS THE FINDING ARRIVED AT BY THE APPELLATE AUTHORITY ON THE BASIS OF SUCH RELIABLE MATERIAL COULD NOT HAVE BEEN SO CURSORILY DEALT WITH BY THE TRIBUNAL FOR THE PURPOSE OF GIVING 'ONE MORE INNINGS' TO THE AO. IT WAS THE DUTY OF THE TRIBUNAL TO ASCERTAIN THE REASO NS WHICH WERE GIVEN BY THE CIT(A) IN WHOSE ORDER THE ORDER OF THE AO HAD M ERGED AND NOT TO BASE ITS DECISION MERELY ON 'A BIT OF NEGLIGENCE' OF THE AO IN NOT CROSS- EXAMINING THE PARTIES WHO WERE PRODUCED BEFORE HIM 4 TO 5 TIMES. IN OUR OPINION THE TRIBUNAL HAS REACHED THE CONCLUSION WH ICH CANNOT REASONABLY BE REACHED BY ANYONE AND THERE IS NO WARRANT FOR REST ORING THE MATTER TO THE AO ON SUCH SPECIOUS GROUNDS AS ARE GIVEN BY THE TRI BUNAL. 5. WHEN WE GO THROUGH THE ORDER OF THE TRIBUNAL IN THE LIGHT OF AFORESAID PROPOSITION LAID DOWN OF HONBLE JURISDIC TIONAL HIGH COURT (SUPRA) WE FIND THAT THE TRIBUNAL HAS NOT TOUCHED ANY OF THE REASONING GIVEN BY THE LD. CIT(A) WHILE ALLOWING THE APPEAL O F THE REVENUE. HENCE MA NO.115/AHD/ 2014 ACIT VS SHRI HASMUKHBHAI NYALCHAND VORA- HUF AY 2005- 06 - 4 - IN OUR CONSIDERED OPINION THERE IS AN APPARENT ERR OR IN THE IMPUGNED ORDER. THEREFORE WE RECALL OUR ORDER DATED 24.01. 2014 AND RESTORE THE APPEAL TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRE CTED TO FIX THE APPEAL FOR HEARING ON 24.11.2016. 6. IN THE RESULT THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE COURT ON 28 TH SEPTEMBER 2016 AT AHMEDABAD. SD/- S D/- (RAJPAL YADAV) JUDICIAL MEMBER (PRAMOD KUMAR) ACCOUNTANT MEMBER AHMEDABAD DATED 28/09/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT. 3. && ' / CONCERNED CIT 4. ' ( ) / THE CIT(A) 5. *+ $-- / DR ITAT AHMEDABAD 6. /01 / GUARD FILE. / BY ORDER TRUE COPY / (DY./ASSTT.REGISTRAR) ! / ITAT AHMEDABAD