NENMERY INVESTMENT AND AGENCIES P. LTD, v. ITO 2(2)(3),

MA 230/MUM/2013 | 2007-2008
Pronouncement Date: 31-07-2013 | Result: Dismissed

Appeal Details

RSA Number 23019924 RSA 2013
Assessee PAN AAACN9180D
Bench Mumbai
Appeal Number MA 230/MUM/2013
Duration Of Justice 30 day(s)
Appellant NENMERY INVESTMENT AND AGENCIES P. LTD,
Respondent ITO 2(2)(3),
Appeal Type Miscellaneous Application
Pronouncement Date 31-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 31-07-2013
Assessment Year 2007-2008
Appeal Filed On 01-07-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN JUDICIAL MEMBER MA NO. 230/MUM/2013 ( C.O. NO. 97/MUM/2012) ( ARISING OUT OF APPEAL NO. ITA 5561 /MUM/2011) ASSESSMENT YEAR: 2007-08 NENMENY INVESTMENT & AGENCIES LTD. 29 4 TH FLOOR SEA CASTEL DR. N.A. PURANDARE MARG CHOWPATY SEA FACE MUMBAI 400 007 PAN: AAACN 9180 D VS. ITO 2(2)(3) 542 AAYAKAR BHAVAN M.K. ROAD MUMBAI (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI MANVENDRA GOYAL DATE OF HEARING : 26.07.2013 DATE OF PRONOUNCEMENT : 31.07.2013 O R D E R PER DR. S.T.M. PAVALAN JM: THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE I NCOME TAX ACT HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR RECALLING THE ORD ER OF THE TRIBUNAL DATED 12.06.2013 IN C.O. NO.97/MUM/2012 ARISING OUT OF TH E CONSOLIDATED ORDER PASSED IN ITA NO. 5561/MUM/2011. 2. THE LD.AR HAS STATED THAT THE ISSUE UNDER CONSI DERATION IN THE CASE OF CROSS OBJECTIONS FILED BY THE ASSESSEE WAS WHETHER THE LD .CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT WHEN SHARES ARE HELD FOR LESS THAN A MONTH GAIN SHOULD BE TREATED AS BUSINESS PROFIT. IT WAS THE CONTENTION O F THE ASSESSEE THAT THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT THE GAINS ARISING OU T SALE OF INVESTMENTS SHOULD BE ASSESSED AS CAPITAL GAINS IRRESPECTIVE OF PERIOD OF HOLDING. IN PARA 4 OF THE IMPUGNED ORDER IT HAS BEEN RECORDED THAT THE LD.AR HAS FILED FACT SHEET INVITING THE MA NO. 230/MUM/2013 ( C.O. NO. 97/MUM/2012) ( ARISING OUT OF APPEAL NO. ITA 5561 /MUM/2011) NENMENY INVESTMENT & AGENCIES LTD. ASSESSMENT YEAR: 2007-08 2 ATTENTION OF THE BENCH TO THE VOLUME OF TRANSACTION S FREQUENCY OF TRANSACTIONS CONSISTENCY AND THE MANNER OF ACCOUNTING TO SUBSTAN TIATE THE CLAIM OF THE ASSESSEES CASE. WHILE DISPOSING THE CROSS OBJECTIO NS FILED BY THE ASSESSEE THE ITAT IN PARA 4.2 OF THE IMPUGNED ORDER HAS TAKEN INTO AC COUNT ONLY HOLDING PERIOD AND FREQUENCY OF TRANSACTIONS WHEREAS THE FACT SHEET FI LED BY THE ASSESSEE CONTAINED TWELVE CRITERIA AND SPECIFIC PROPOSITIONS THAT SHAR ES HELD AS INVESTMENT IN THE PRIOR PERIOD BUT SOLD IN THE CURRENT PREVIOUS YEAR CANNOT BE TREATED AS BUSINESS INCOME. IN VIEW OF THIS THE LD.AR HAS PLEADED THAT THE AFO RESAID ORDER OF THE HONBLE TRIBUNAL REQUIRES SUITABLE AMENDMENTS U/S. 254(2) O F THE ACT SO AS TO RECTIFY THE MISTAKES POINTED OUT. ON THE OTHER HAND THE LD.DR HAS CONTENDED THAT THE IMPUGNED ORDER DOES NOT SUFFER FROM ANY MISTAKE AS THE ITAT HAS RIGHTLY DECIDED THE ISSUE BASED ON THE FREQUENCY OF TRANSACTIONS AN D HOLDING PERIOD. 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD WE ARE OF THE VIEW THAT THE CONTENTION OF THE ASSESSEE IS NOT CORRECT. A PERUSAL OF THE IMPUGNED ORDER REVEALS THAT THE TRIBUNAL IN PARA 4 OF THE SAID ORDER HAS DULY NOTED THE ASSERTION OF THE ASSESSEE THAT IT HAS FILED A F ACT SHEET THEREBY DRAWING OUR ATTENTION TO THE VOLUME OF TRANSACTIONS FREQUENCY OF TRANSACTIONS CONSISTENCY AND THE MANNER OF ACCOUNTING TO SUBSTANTIATE THE CLAIM OF THE ASSESSEEE. IN FURTHERANCE OF NOTING THE SAID ASSERTION OF THE ASSESSEE IN THE IMPUGNED ORDER IT HAS BEEN MENTIONED IN PARA 4.2 OF THE ORDER THE WORDS AFTER CONSIDERING THE TOTALITY OF THE FACTS AND DETAILS OF TRANSACTION WHICH ARE SUFFIC IENT ENOUGH TO INDICATE THAT ALL THE CRITERIA FOR DECIDING THE NATURE OF TRANSACTIONS IN SHARES AVERRED BY THE ASSESSEE IN THE FACT SHEET FILED HAS BEEN DULY TAKEN INTO ACCOU NT BY THE TRIBUNAL FOR DRAWING THE CONCLUSION WHILE DISPOSING THE CROSS OBJECTION OF T HE ASSESSEE. IT IS ALSO RELEVANT TO STATE THAT THE TRIBUNAL FOR ARRIVING AT THE DECISI ON HAS MENTIONED/CONSIDERED THE HOLDING PERIOD AND FREQUENCY OF TRANSACTIONS AS IT DOES NOT DEEM FIT TO DISCUSS EACH AND EVERY CRITERIA SUBMITTED IN THE FACT SHEET FILE D BY THE ASSESSEE WHICH WERE NOT SO IMPORTANT TO DISCUSS SEPARATELY. HOWEVER THIS D OES NOT RESULT IN THE PRESUMPTION THAT THE TRIBUNAL HAS NOT CONSIDERED THE TWELVE CRI TERIA AND SPECIFIC PROPOSITIONS CONTAINED IN THE FACT SHEET SUBMITTED BY THE ASSESS EE. IN VIEW OF THE THAT MATTER WE ARE OF THE CONSIDERED OPINION THAT THE IMPUGNED ORDER DOES NOT SUFFER ANY MA NO. 230/MUM/2013 ( C.O. NO. 97/MUM/2012) ( ARISING OUT OF APPEAL NO. ITA 5561 /MUM/2011) NENMENY INVESTMENT & AGENCIES LTD. ASSESSMENT YEAR: 2007-08 3 INFIRMITY DUE TO MISTAKE APPARENT ON THE RECORD F OR THE PURPOSES OF SECTION 254(2) OF THE INCOME TAX ACT. THUS WE DO NOT FIND ANY MER IT IN THE MISCELLANEOUS APPLICATION AND THEREFORE THE SAME IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF JULY 2013. SD/- SD/- (B. RAMAKOTAIAH) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 31.07.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT (A) CONCERNED MUMBAI THE DR B BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.