KISHORE RASIKLAL DALAL, v. ITO 16(1)(4),

MA 15/MUM/2010 | 2004-2005
Pronouncement Date: 20-04-2010 | Result: Allowed

Appeal Details

RSA Number 1519924 RSA 2010
Assessee PAN AABPD4022E
Bench Mumbai
Appeal Number MA 15/MUM/2010
Duration Of Justice 3 month(s) 9 day(s)
Appellant KISHORE RASIKLAL DALAL,
Respondent ITO 16(1)(4),
Appeal Type Miscellaneous Application
Pronouncement Date 20-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 20-04-2010
Assessment Year 2004-2005
Appeal Filed On 11-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI D.MANMOHAN (VICE PRESIDENT) & SHRI RAJENDRA SINGH AM & M.A.NO.15/MUM/2010 A.Y 2004-05 [ARISING OUT OF I.T.A.NO.3339/M/07] MR. KISHORE RASIKLAL DALAL VASANT VILAS 1-BABULNATH ROAD MUMBAI 400 007 PAN NO.AABPD 4022 E VS. INCOME TAX OFFICER 16(1)(4) MUMBAI (APPLICANT) (RESPONDENT) APPLICANT BY : MR. FAROOKH V. IRANI. REVENUE BY : MR. S.M.KESHKAMAT. O R D E R PER RAJENDER SINGH AM: THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY T HE ASSESSEE REQUESTING FOR RECTIFICATION OF CERTAIN MISTAKES AP PARENT IN THE ORDER DATED 28/4/2009 OF THE TRIBUNAL IN I.T.A.NO.3339/MU M/2007. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE FOR RELEVANT YEAR HAD DECLARED SHORT TERM CAPITAL LOSS OF RS.49 66 787/- FROM SALE OF UNITS OF PRINCIPEL BALANCE FUND. THE SAID UNITS HAD BEEN PURCHASED ON 26-11-2003 AND SOLD ON 26-3-2004. UNDE R THE PROVISIONS OF SEC.94(7) OF THE I.T.ACT IN CASE A PERSON BUYS OR ACQUIRES ANY SECURITIES OR UNITS WITHIN A PERIOD OF THREE MONTHS PRIOR TO THE RECORD DATE AND SELLS OR TRANSFERS SUCH SECURITIES OR UNIT S WITHIN THREE MONTHS AFTER SUCH DATE THE LOSS ARISING FROM SUCH TRANSAC TIONS IN EXCESS OF DIVIDEND INCOME IF ANY RECEIVED FROM SUCH UNITS H AS TO BE IGNORED. 2 AO HELD THAT THE CASE WAS COVERED BY THE PROVISIONS OF SEC.94(7) AND ACCORDINGLY IGNORED THE LOSS IN EXCESS OF THE DIVID END INCOME OF RS.45 40 384/-. IN APPEAL CIT(A) OBSERVED THAT AO HAD NOT GIVEN ANY FINDING REGARDING THE RECORD DATE. HE ALSO OBSERVED THAT IN THE ABSENCE OF ANY DETAILS REGARDING THE RECORD DATE THE SAID DATE COULD BE CONSIDERED AS THE DATE ON WHICH DIVIDENDS WERE CRED ITED I.E. 29/12/2003 AND THEREFORE THE SALE WAS WITHIN A PE RIOD OF THREE MONTHS. HE FURTHER OBSERVED THAT THE WORD MONTH H AD NOT BEEN DEFINED IN THE I.T.ACT AND AS PER GENERAL CLAUSES A CT THE MONTH HAD TO BE RECKONED ACCORDING TO BRITISH CALENDAR AND T HEREFORE EVEN THE PERIOD BETWEEN 26-12-03 AND 26-3-04 IS WITHIN THREE MONTHS AND THEREFORE THE CASE OF THE ASSESSEE WAS COVERED BY THE PROVISIONS OF SEC.94[7]. HE ACCORDINGLY CONFIRMED THE ORDER OF THE AO. IN FURTHER APPEAL THE TRIBUNAL OBSERVED THAT THE ASSESSEE HAD NOT FILED ANY EVIDENCE IN SUPPORT OF ITS CONTENTION THAT RECORD D ATE WAS 26-12-2003. THE TRIBUNAL RESTORED THE MATTER TO THE AO FOR ADJU DICATING THE ISSUE AFRESH AFTER CONSIDERING THE RECORDS PRODUCED BY TH E ASSESSEE TO SEE WHETHER THE ASSESSEE CAME WITHIN THE AMBIT OF SEC.9 4[7]. THE TRIBUNAL IN PARA-11 ALSO HELD THAT IF THE ASSESSEE WAS HOLDI NG UNITS AS PER SUB- CL.(II) OF SEC.94[7][B] THE PROVISION WOULD APPLY EVEN IF THE SALE HAD BEEN MADE WITHIN A PERIOD OF NINE MONTHS AFTER THE RECORD DATE AND THEREFORE THE SALE CLEARLY WAS WITHIN THE PERIOD O F NINE MONTHS. 3. IN THE MISCELLANEOUS APPLICATION THE ASSESSEE HA S POINTED OUT APPARENT MISTAKES. THERE ARE SOME TYPOGRAPHICAL MIS TAKES SUCH AS IN 3 4 TH LINE OF PARA-5 THE DATE MENTIONED IS 26-3-2003 IN PLACE OF CORRECT DATE OF 26-12-2003 AND SIMILAR MISTAKES ARE THERE IN THE 5 TH AND 7 TH LINES OF PARA-9. IT HAS ALSO BEEN POINTED OUT THAT THE TRIBUNAL WAS WRONG IN HOLDING THAT SALE WITHIN A PERIOD OF NINE MONTHS FROM RECORD DATE WILL BE COVERED BY THE PROVISIONS OF SUB-CL.(I I) OF SEC.94[7][B]. THE LEARNED A.R. POINTED OUT THAT THE PERIOD OF NINE MO NTHS WAS SUBSTITUTED IN PLACE OF THREE MONTHS ONLY FROM AS SESSMENT YEAR 2005-06 AND SINCE THE ASSESSMENT YEAR INVOLVED WAS 2004-05 SALES MADE WITHIN THE PERIOD OF THREE MONTHS FROM THE REC ORD DATE WOULD ONLY BE COVERED BY SUB-CL.(II) OF SEC.94[7][B]. THE REFORE THE OBSERVATION MADE BY THE TRIBUNAL IN PARA-11 WAS CON TRARY TO THE PROVISIONS OF LAW AND SHOULD THEREFORE BE AMENDED . THE LD.DR PLACED RELIANCE ON THE ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE PARTIES PERUSED THE RECO RDS AND CONSIDERED THE MATTER CAREFULLY. WE AGREE WITH THE LEARNED A.R. THAT THERE ARE FACTUAL ERRORS IN MENTIONING THE DATE IN THE ORDER OF THE TRIBUNAL. THE ASSESSEE HAD MADE THE PURCHASE OF UNI TS ON 26-12-2003 WHICH HAS BEEN MENTIONED AS 26-3-2003 IN PARA-5 AND 26-12-07 IN PARA-9. WE THEREFORE RECTIFY THE ORDER AND THE DA TE 26-3-2003 AT THE 4 TH LINE OF PARA-5 AND 7 TH LINE OF PARA-9 WILL BE SUBSTITUTED BY 26- 12-2003. SIMILARLY THE DATE 26-12-2007 APPEARING AT 5 TH LINE OF PARA-9 WILL BE SUBSTITUTED BY 26-12-2003. WE ALSO AGREE WITH THE LEARNED AR THAT AS PER THE AMENDED PROVISIONS APPLICABLE FO R A.Y 2004-05 PROVISIONS OF SEC.94[7] ARE ATTRACTED ONLY WHEN THE UNITS ARE SOLD 4 WITHIN A PERIOD OF THREE MONTHS. THEREFORE THE OBS ERVATIONS OF THE TRIBUNAL IN PARA-11 OF THE ORDER ARE CONTRARY TO TH E PROVISIONS OF LAW. WE ACCORDINGLY AMEND THE ORDER BY DELETING PARA-1 1 OF THE ORDER OF THE TRIBUNAL. 5. IN THE RESULT MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON THIS 20 TH DAY OF APRIL 2010. SD/- SD/- (D.MANMOHAN) (RAJENDRA SINGH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI: 20 TH APRIL 2010. P/-*