Income Tax Appellate Tribunal - Bangalore
M/S Kemfin Services Pvt. Ltd.,, ... vs Assessee on 16 January, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL,
BANGALORE BENCH 'B'
BEFORE SHRI N.K SAINI, ACCOUNTANT MEMBER AND
SMT. P MADHAVI DEVI, JUDICIAL MEMBER
ITA No.82/Bang/2011
(Asst. Year - 2007-08)
M/s Kemfin Services Pvt. Ltd.,
Kemwell House,
11, Tumkur Road,
Bangalore-560 022. . Appellant
Vs.
The Astt. Commissioner of Income-tax,
Circle-11(5),
Bangalore. . Respondent
PAN No.AAACK 6926E.
Appellant by : Shri Tata Krishna
Respondent by : Smt. Susan Thomas Jose
Date of Hearing : 16-01-2012
Date of Pronouncement : -01-2012
ORDER
PER P MADHAVI DEVI, JUDICIAL MEMBER :
This appeal is filed by the assessee. The appeal is directed against the order of the Commissioner of Income-tax (Appeals) - I at ITA No.82/B/11 2 Bangalore dated 20.12.2010. The appeal arises out of the assessment completed u/s 143(3) of the Income-tax Act, 1961.
2. In this appeal, the assessee is aggrieved by the order of the CIT(A) in confirming the order of the AO in treating the transactions of the assessee as emanating from business and considering the same as business income as against the capital gain offered by the assessee.
3. At the time of hearing, the learned counsel for the assessee fairly admitted that this issue has arisen in the assessee's own case for the assessment years 2005-06 and 2006-07, wherein it has been held that the conversion of shares from stock-in-trade to investment has to be treated as business income. He has filed the copies of the said orders before us. He has also filed the application for admission of additional ground to the effect that the CIT(A) is not justified in upholding the action of the AO in not allowing the rebate u/s 88E on the basis that the assessee did not file form 10DB without allowing an opportunity to the assessee to furnish the same.
4. The learned counsel for the assessee submitted that the assessee has all along been taking the ground that the gain from conversion of ITA No.82/B/11 3 shares held as stock-in-trade in the investment has to be treated as short-term capital gain but the Revenue has treated it as business income and the Revenues' stand has been upheld by the Tribunal. He submitted that since the assessee was treating the income as short- term capital gain, the assessee never claimed the rebate u/s 88E before the AO. However, he had raised this ground before the CIT(A) but the CIT(A) without giving any opportunity to the assessee to file form 10DB and without calling for the same has rejected the assessee's claim. He submitted that this ground of appeal was inadvertently not raised before the Tribunal and prayed that the additional ground may be admitted.
5. The learned DR however, strongly opposed the admission of the additional ground of appeal stating that the assessee has not filed from No.10DB either before the AO or the CIT(A). She submitted that the assessee has taken a specific ground of appeal before the CIT(A) and, therefore, it was incumbent for him to file from No.10DB before the CIT(A) and as it has failed to do so, the same cannot be admitted at this stage.
ITA No.82/B/114
6. Having heard both the parties and having considered the rival contentions, we find that the assessee has raised the additional ground of appeal before this Tribunal at the later stage of hearing of appeal. It is not in dispute that the assessee has raised this ground before the CIT(A), but, before CIT(A) also the assessee has failed to produce form No.10DB. The case of the assessee is that the CIT(A) has not called for the said details. In fact, it is the duty of the assessee to furnish all the documents in support of his contentions. After submitting the details, if any further details are required, the CIT(A) may call/ask for the same. However, it is also to be seen that taxes can be collected only in accordance with law. If the assessee is entitled to the rebate, he should be given the same provided he satisfies all the conditions. Therefore, in the interest of justice, we deem it fit and proper to admit the additional ground of appeal and remit the issue to the file of the AO with a direction to verify the genuineness of the assessee's claim and if it is found to be in accordance with law, the same may be allowed.
7. As regards the main issue of the income being business or capital gain, we find that the issue is covered against the assessee by the decision of the Tribunal for the assessment years 2005-06 and ITA No.82/B/11 5 2006-07. Respectfully following the decision of the coordinate bench to which one of us (i.e J.M) is a party, the ground is accordingly dismissed.
8. In the result, the appeal filed by the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on 31st Jan, 2012.
Sd/- Sd/-
(N.K SAINI) (P MADHAVI DEVI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Vms.
Bangalore
Dated : 31/01/2012
Copy to :
1. The Assessee
2. The Revenue
3.The CIT concerned.
4.The CIT(A) concerned.
5.DR
6.GF By order
Asst. Registrar, ITAT, Bangalore.