Income Tax Appellate Tribunal - Mumbai
Asst Cit 25(2), Mumbai vs Sagar Construction, Mumbai on 18 November, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI
BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND
SHRI C.N. PRASAD, JUDICIAL MEMBER
I.T.A. No.2561/M/2014 (Assessment Year: 2009-2010)
ACIT-25(2), फनाभ/ Sagar Construction,
Mumbai. C-402, Gokul Divine, IRLA,
Vs.
S V Road, Vile Parle (W),
Mumbai -400 056.
स्थामी रेखा सं ./ PAN : AAGFS8539N
(अऩीराथी /Appellant) .. (प्रत्मथी / Respondent)
अऩीराथी की ओय से / Appellant by : Shri Akhilendra Yadav, DR
प्रत्मथी की ओय से/ Respondent by : None
सुनवाई की तायीख / Date of Hearing : 09.11.2016
घोषणा की तायीख /Date of Pronouncement : 18 .11.2016
आदे श / O R D E R
PER D. KARUNAKARA RAO, AM:
This appeal filed by the Revenue on 16.4.2014 is against the order of the CIT (A)-35, Mumbai dated 7.1.2014 for the assessment 2009-2010. In this appeal, Revenue raised the following grounds which read as under:-
"1. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in holding the income of the assessee from share transaction as profit from capital gain and not as business income.
2. On the facts and in the circumstances of the case and in law, the Ld CIT (A) is not justified in following the decision of the Hon‟ble ITAT in the assessee‟s own case for earlier years where the facts and circumstances are different from the facts for the AY 2009-2010."
2. The only issue raised in this appeal relates to the CIT (A)‟s decision in following the decision of the ITAT in the assessee‟s own case the for the earlier assessment years in granting relief to the assessee in respect of income earned on share transactions. Brief facts in this regard are that the assessee earned income out of the trading in share transactions and the same was offered as capital gains. Rejecting the same, AO treated the said income as „business income‟. In the process, he relied on the contents of the orders of the Tribunal for the earlier 2 assessment year 2009-2010. The contents of para 7 of the impugned order are relevant in this regard. In the process, CIT (A) relied heavily on the order of the ITAT dated 3.5.2013 for the AY 2008-2009 and gave a finding that the facts of the present case are identical and therefore, the ratio laid down by the Coordinate Bench in the assessee‟s own case is binding. Accordingly, CIT (A) allowed the appeal of the assessee. Aggrieved, with the said decision of the CIT (A), Revenue is in appeal before the Tribunal.
3. During the proceedings before us, none appeared on behalf of the assessee to represent its case.
4. On the other hand, Ld DR for the Revenue relied on the order of the AO.
5. We have heard Ld DR for the Revenue and perused the orders of the Revenue Authorities as well as the relevant material placed before us. On perusal of the contents of paras 6 and 7 of the CIT (A), we find, Ld DR has not brought any material to demonstrate that the facts are not identical to the case decided by the Tribunal for the AY 2007-2008. Therefore, we are of the opinion, the decision of the CIT (A) to rely on the said Tribunal‟s decision (supra) for the AY 2007-08 vide ITA Nos. 5595 & 5625/M/2010, dated 3.5.2013 is fair and reasonable and it does not call for any interference. Accordingly, grounds raised by the Revenue are dismissed.
6. In the result, appeal of the Revenue is dismissed.
Order pronounced in the open court on 18th November, 2016.
Sd/- Sd/- (C.N. PRASAD) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER भुंफई Mumbai; ददनांक 18.11.2016 व.नन.स./ OKK , Sr. PS
आदे श की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to :
1. अऩीराथी / The Appellant
2. प्रत्मथी / The Respondent.
3. आमकय आमक् ु त(अऩीर) / The CIT(A)-
4. आमकय आमुक्त / CIT
5. ववबागीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai 3
6. गार्ड पाईर / Guard file.
सत्मावऩत प्रनत //True Copy// आदे शानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, भुंफई / ITAT, Mumbai