Income Tax Appellate Tribunal - Kolkata
Daulal Kothari, Kolkata vs Department Of Income Tax on 27 July, 2015
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IN THE INCOME TAX APPELLATE TRIBUNAL,
KOLKATA 'A' BENCH, KOLKATA
Before Shri P.K. Bansal, Accounta nt M em be r
and Shri Maha vir Singh, Judicial Member
I.T.A. No. 1729/KOL./ 2012
Assessment yea r: 2008-2009
Deputy Commissione r of Income Tax,............. .................Appellant
Circ le-44, Kolka ta,
3, Govt . Place (We st ), Ground F loor,
Kolkata-700 001
-Vs.-
Shri Daula l Kotha ri,.......................... ................................Respondent
4, Bysa ck Street ,
Kolkata-700 007
[PAN : AIYPK 2894 C]
&
I.T.A. No. 195/KOL ./2013)
Assessment year: 2008-2009
Shri Daula l Kotha ri,.......................... ..................................Appellant
4, Bysa ck Street ,
Kolkata-700 007
[PAN : AIYPK 2894 C]
-Vs.-
Assistant Commissioner of Income Tax, ...........................Respondent
Circ le-44, Kolka ta,
3, Govt . Place (We st ), Ground F loor,
Kolkata-700 001
Appeara nces by :
Shri Amitabha Choudhury, S r. D.R., for th e Department
Sh ri S. L. Koc ha r & Shri A nil Koc ha r, Ad v oca te s, for the a ssesse e
Dat e of concluding t he h earin g : July 09, 2015
Dat e of pr onouncing th e order : July 27, 2015
O R D E R
Per P.K. Bansal:
The cro ss app eal fil ed by the Rev enue a nd as ses se e re spectively has ari sen out of the o rde r of Com mission er of Income T ax (App eal s)-XXX, Kolkata dat ed 09.0 7.2012 for the assessment yea r 20 08-09 .
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2. The appeal filed by the asses se e is time barred by 58 days. The as se sse e has filed an a ffid avit dated 28.01.20 12 to condo ne the delay. We aft er hearin g the ld. A.R. an d on the b asis o f th e affid avit condone the delay and the app eal i s admitted.
ITA No. 1729/KOL/2012 (Re venue's a ppeal)3. The o nly issu e involv ed in the ap p eal relates to whether th e inco me derived by the asses see on the purcha se and sal e of shares held by the as se sse e as investment and t reatin g th e gain f rom sh are tran sactions a s business inco me or capital gain.
4. After h earin g th e rival submissio n s an d carefully consid erin g the same, we noted that th e i ssu e involved is du ly covered in favour o f the as se sse e by the order of th e Hon'ble Calcutta Hi gh Court in G.A. No. 2489 of 2014 in ITAT No. 113 of 2014, in which the Hon'ble Calcutta High Court in the case of as ses se e's wi fe vide order dated 01.09.2014 took the v iew on the similar i ssu e in the assess ment year 2007-08 that the inco me will be asses sable n ot as busin ess income but as cap it al gain. The relevan t findings of th e Hon'ble Calcutt a Hi gh Co u rt are rep ro duced as under:-
"We fin d that the Tribunal wh ile negating th e conclusion of the rev enu e had referr ed to th e order of th e CIT(A). Th e r el evant portion of the order passed by th e CIT(A) is as under:-
"5. The cont entions o f the appellant as summed up above have been co nsidered in the co ntext of th e findings a rrived at by th e Assessing Officer in his order wh ile tr eating the in come f rom sha re tran sactions as appelln at' s business income. I t is seen that the appellan t has co nsistently b een showing her shares as inv estm en ts an d the same has been a ccept ed as su ch by the dep artmen t in ea rlier years and the Assessing Officer has n ot brought in a ny fresh evidence in h is Assessment Ord er for the present year to th e con tr ary. He has simply ref erred to th e magnitude of sha re tran saction and co me to his own conclusion s abo ut the int entio ns o f the appellant. The detailed I .T.A . N o. 17 29 / KOL ./ 20 1 2 As s es sme n t y ea r: 2 00 8- 2 0 09 & I . T. A. N o. 1 95 / KOL ./ 2 01 3 As s es sm e n t y ea r : 2 00 8- 2 0 09 Page 3 of 6 eviden ces an d writ e up given by th e a p pellant in support her argument s, subs tan tiate h er claim o f being an investor. It is also clear that the ass ertion that she is an investor can o nly be ch allenged on the basis of her own record s and transaction s which could indicate th at it is actually doin g trading busines s. This is not th er e in the appellant's ca se and the A.O. has failed to do so other tha n making a longwinding an alysis of the g uidelines 'laid out in CBDT Circular No .4/20 07. The relia nce o f Assessing Officer on th e decision of ITO Vs. Lily Expo rts Pv t. Ltd. of Hon'ble I.T.A.T. 'A' -Bench , Ko lkata is based on d ifferent fa cts an d can not be ap plied in the app ellant's case. In th e aforemention ed case th e Hon'ble I.T.A.T. h as referred to several factors while holding that the in come was normal business profit referring to short period o f retention and other factors whi ch a re missing in the ca se o f app ellant. On the other hand, the d ecisions in the case of M/ s. Ast rix Enterpris es and M/s. Eterna St eel & In ves tment Pv t. Ltd . Supra are squar ely app licable in the ap pellant's case. It may also be mention ed that the matter had been co n sidered in app eal in her own case for AY 1 992-93, an d decided in her favour by the CIT(A )XXVI, Kolkata in his order dated 2 7-0 2-2002. Co nsid erin g th e above, th e cont ention of the appellan t is accep ted and the income f rom sha re t ran sactio ns of Rs. 43,59,492/- is to be tr eat ed as offered by ap pellant in its Long Term Capital Gain and Inco me-tax Retu rn as Rs.18,39 ,391/- a s Short Term Capital Gains."
The ques tions rais ed do not include a ch a llenge on perversity. Th e findings of the Commissioner of Appeals are on fact s concur red by th e Tribu nal.
We find, th er efor e, no su bstantial q uestio n o f law arises.
Accordingly, the applica tion and the a ppea l are dismissed.
Urg ent certified p hotoco py of this order be supplied to the parti es, if ap plied for, upo n comp lia nce of all requisite formalities".
I .T.A . N o. 17 29 / KOL ./ 20 1 2 As s es sme n t y ea r: 2 00 8- 2 0 09 & I . T. A. N o. 1 95 / KOL ./ 2 01 3 As s es sm e n t y ea r : 2 00 8- 2 0 09 Page 4 of 6 Resp ectfully following the aforesaid order o f th e Ho n'ble Calcutta High Court, in ou r opinion, no inte rf erence i s called fo r in the o rder of the CIT(App eals) allo win g relief to the asses see and direct th e Ass es sin g Officer to asse ss the i ncome f ro m pu rc has e and sale of shares un d er the head "short te rm capit al gain".
5. In the result, the appeal filed by the R evenue is dismissed.
ITA No. 195/KOL/2013 (assesse e's appe al)6. Gro und No. 1 of assessee's app eal was not p res sed by the ld. co unsel of the a ss ess ee at the ti me o f hea rin g there fore, the same is dismi ssed as not p ress ed.
7. Gro und No. 2 is si milar to the G round No. 1 in C.O. 56/KOL/2011 for the assessment yea r 2 007-08. Sin ce we h ave already d eleted the disallowance mad e by the A ss essin g Officer in respect o f th e salary amountin g to Rs.21,0 00/- resp ectfully fo llo wing our afo res aid order in C.O. No. 56/KOL/20 11 of even date, we delete the di sallowanc e of salary amountin g to R s.2 1,000/-. Thus this g round stand s allowed.
8. Gro und No. 3 relat es to the do uble addition of Rs.39,064/- in resp ect of p ay men t of inco me-t ax.
9. We hav e heard the rival submission s and ca refully conside red th e same alon g with the ord er of ta x authorities belo w. We not ed f rom the co mputation statement of the a ss ess ee that the ass essee has al re ady add ed the paym ent of incom e tax amounting to Rs.39,06 4/- while m aking the computatio n of incom e but wron gly taken the figure at R s.39,064/- inste ad o f Rs. 41,49 9/-. If the addition of Rs.39,064/- is sustained that will tantamount to the doub le addition. But since the ass es see h as inco rrectly taken the figu re of Rs.3 9,064/- in th e computatio n st atemen t in place of Rs. 41,499/-, therefore, red uced the addition of Rs.2,435/-. Thus th is ground is p artly allowed.
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10. Gro und No. 4 relat es to th e su sten ance of the di sallowan ce of Rs. 1,00,000/- o ut o f Rs.2,00, 000/- made by the Asse ssin g O ffic er.
11. Brief f act s of the ca se are th at th e Asse ssin g Offic er noted th at th e as se ses e has debited tel ephone exp enses at R s.24,40 7/-, motor car expen s es of Rs.40,118/- an d motor car depreci ation of Rs.56,397/- to the profit & loss account. H e was of th e opinio n that the a ss ess ee h as perso nally used the t elephone and mot or car and, therefo re, he m ade the ad hoc dis allowance to R s.2,00,00 0/- aft er notin g that all th e expen ses were on self-mad e vo uchers. When the matt er went befo re the CIT(App eals), the CIT(Appeals) red uced the disallowance to Rs. 1,00,000/.
12. We hav e heard the rival submission s and ca refully conside red th e same along with the o rd er of t ax auth oritie s below. We noted that the as se sse e has submitt ed all the det ails of exp ens es, in our opinion, no ad hoc d isallowanc e can be m ade at the most. Disallo wance can b e mad e in resp ect of pe rsonal exp enses d ebited t o the profit & loss account as the as se sse e also did not dispute befo re us that motor car h as no t been perso nally used. We, therefore, re st rict the disallowance to 10% in resp ect of moto r ca r disallowance as well as motor c ar d ep reci ation, i.e. amountin g to Rs.4,012/- an d Rs.5,640/-. We accordin gly reduce the disallowance of R s.1,00,000 /- to Rs.9,652/-. Thus this ground is p artly allowed.
13. In the result, the appeal filed by the ass essee is p artly allowed.
14. To sum up, the appea l filed by the Re venue is dismissed and the appeal filed by the assessee is pa rt ly allowed.
O rd er prono unced in th e op en Court on Ju ly 27, 2015.
Sd/- Sd/ -
Mahav ir Singh P.K. Bansa l
(Judi cial Member) (A ccounta nt M ember)
Kolkata, th e 27 t h day of July, 2015
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Co pies to :(1) Income Tax Office r,
Circ le-44, Kolka ta,
3, Govt . Place (We st ), Ground F loor,
Kolkata-700 001
(2) Shri Daulal Kothari,
4, Bysa ck Street ,
Kolkata-700 007
(3) Comm iss ioner of Income-tax (Appeal s)
(4) Com mis sioner of Incom e Tax
(5) The Depar tmental R epr es entative
(6) Guard Fil e
B y order
Assistant Registrar
Income Tax App ellate Tribunal
Kolkata Ben ch es, Kolkata
Laha/Sr. P.S.