Income Tax Appellate Tribunal - Chennai
Altius Securities Trading (P) Ltd.,, ... vs Assessee on 7 December, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
'B' BENCH, CHENNAI
[BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER
AND SHRI V. DURGA RAO, JUDICIAL MEMBER]
M.P.No.67/Mds/2012
[In I.T.A No.233/Mds/2010]
Assessment year : 2005-06
Shri C.Srikanth vs The Dy. CIT
New No.19/3 (Old No.11/3) Company Circle I(1)
3rd Avenue, Besant Nagar Chennai
Chennai 600 090
[PAN - ABHPS5947E]
(Petitioner) (Respondent)
M.P.No.68/Mds/2012
[In I.T.A No.234/Mds/2010]
Assessment year : 2005-06
M/s Altius Securities Trading vs The Dy. CIT
(P) Ltd Company Circle I(1)
New No.6 (Old No.29) Chennai
CIT Colony, II Main Road
Mylapore
Chennai 600 004
[PAN - AACCA4561D]
(Petitioner) (Respondent)
Petitioner by : Shri M.S.Syali, Sr. Advocate
& Shri N.R.Suresh, FCA
Respondent by : Shri Guru Bashyam, Jt. CIT
Date of Hearing : 07-12-2012
Date of Pronouncement : -12-2012
:- 2 -: MP 67 & 68/12
ORDER
PER N.S. SAINI, ACCOUNTANT MEMBER:
These are the miscellaneous petitions filed by the above assessees against the consolidated order of the Tribunal dated 10.02.2012 passed in I.T.A.Nos.233/Mds/2010 and 234/Mds/2010.
2. The miscellaneous petitions read as under:
"1. The captioned appeal filed by the Revenue was heard by the Hon'ble Bench on 08th February 2012 and vide its order dated 10th February, 2012, the Hon'b!e Bench was pleased to dispose of the appeal in favour of the Revenue [Copy of order passed by the Hon'ble Bench is enclosed as Annexure 'A'.
2. The sole issue involved in the captioned appeal was whether proceeds from sale of shares/securities are to be taxed as income under the head capital Gain or as income from business. In appeal before the first appellant authority it was held to be taxable as Short term Capital Gain. The Revenue, however, contested the same before this Hon'ble tribunal. In fact, the appeal stands decided in favour of revenue.
It is respectfully submitted that in the order passed by the Hon'ble Bench following mistakes have inadvertently crept in, which are apparent from record:
(I) NON- ADJUDICATION OF GROUND OF APPEAL No. 6 & 7 : It is humbly submitted that while passing its order, the Hon'ble Benchinadvertently did not adjudicate Grounds No 6 & 7 specifically argued by the Counsel for the appellant before this Hon'ble Bench, relying upon the findings of the CIT(A). The Grounds 6 & 7 are as under:
Ground No. 6: The learned Commissioner of Income Tax (Appeals) has wrongly observed that the appellant did not borrow funds for the purpose of investment and utilized his own funds for the shares held as investments. The borrowed fund from IFLS was for F&O business and not for the purpose of investment. It is submitted that the profit made purely out of transaction on purchase and sale of shares in cash segment utilizing the ILFS borrowed funds amounted to Rs.:- 3 -: MP 67 & 68/12
17,57,808/-. Even such gain have been entirely shown as capital gain u/s 111A of the Act.
Ground No. 7: The learned Commissioner of Income Tax (Appeals) has observed that perusal of returns and balance sheets of the appellant reveal that the appellant has been consistently maintaining asset as stock in trade as well as investment in its accounts. The learned CIT(A) ought to have seen that though the assessee has been showing investments and stock in trade in its book of account, the assessee has suddenly started booking all its purchases as investments shown in the books has leaped from 9,81,132/- as on 31-03-2003 and Rs. 59,79,579/-as on 31-03-2004 to Rs. 7,41,83,096/- as on 31-03-2005 which only shows that there has been no consistency in the method of accounting followed by the assessee.
Copy of the said grounds annexed to the Memorandum of appeal filed by the Revenue is attached herewith as Annexure C. It is respectfully submitted that the Hon'ble Bench while hearing the matter ought to have adjudicated upon above grounds as adjudication thereon was cardinal to its conclusion for relevant determination of the issue. The learned CIT (A) while reversing the order of the AO has given specific findings which are as under:
(i) The Assessee is not only dealing in shares but is a trader as well as an investor. He is consistently maintaining shares as stock in trade as well as investments and such manner of keeping and maintaining the records, presentation of shares as investment is same in the end of all years; therefore there is no reason why the claim of the assessee be not accepted. This reasoning of the CIT (A) is taken as Ground No 7 by the Revenue, which remained undisposed since the arguments of the assessee have nowhere been controverted.
(ii) That the Assessee did not borrow funds for the purpose of investments and utilized its own funds for the shares held as investments. The borrowed funds from ILFS was for F & O business and not for the purpose of investment. This finding of CIT (A) is challenged by the Revenue as Ground No. 6 , which ITAT failed to adjudicate upon.:- 4 -: MP 67 & 68/12
The law is trite that an omission to adjudicate the ground raised is a mistake apparent from record. Reference is invited to the judgment of Hon'ble Madras High Court in the case of Commissioner of Income Tax vs Malladi Project Management(P) Ltd. reported in 324 ITR 87(Mad) wherein the Hon'ble Court has observed as under:
"One of the grounds on which the present appeal is filed is that the Tribunal has totally lost sight of, of the ground Nos. 5 to 5.2 on the issue of treatment of current investments, which has not at all been adjudicated.
We have heard the argument of the learned counsel for the Revenue and perused the materials available on record. We are of the view that if a particular ground has been raised by the Revenue and that ground has not been answered by the Tribunal, it is for the Revenue to bring the same to the notice of the Tribunal and get it rectified by procedure known to law. The non- consideration by itself can-not be a reason for filing an appeal. Even an appeal is filed, it has to be remitted back to the Tribunal, once again for reconsideration of the issue if the statement made by the Revenue is correct. Thereafter, the Tribunal has to do the very same exercise. Instead, the Revenue could have approached the Tribunal pointing out the mistake in not considering the specific ground raised by the Revenue and obtained an order by way of rectification, which process has not been done in this case, even though the order of the Tribunal was made on February 6, 2008. For the above reasons, we dismiss the appeal by observing that it is open to the Revenue to approach the Tribunal."
(II) RELEVANT FACTS ON RECORD IGNORED: The Hon'ble Bench did not take cognizance of the following facts recorded by the Hon'ble CIT(A) in its order dated 27th November 2009. While coming to its conclusion.
(a) The Return of income and Balance Sheet of the appellant reveal that the appellant has been consistently maintaining assets as stock-in-trade as well as investments in its books of account.
:- 5 -: MP 67 & 68/12
(b) The appellant paid short term capital gain at normal rates on the state on the share transactions executed in the period prior to 01-10-2004.
(c) The appellant has proved with evidence that all the transactions conferring short term capital gain were taken delivery of any transacted through DEMAT account. It is also not true that the shares were held only for 2 to 45 days. Many share were held for as long as 365 days and beyond an year as well.
(d) The appellant did not borrow funds for the purpose of investment. The share purchased as investment has also been kept in the investment account and in the stock-in- trade (inventory) account. The appellant has shown investment of Rs. 9,81,132/-, Rs. 59,79,579/- and Rs. 7,41,83,096/- as on 31.03.2003, 31.03.2004 and 31.03.2005 respectively and has shown dividend income in all these years
(e) Even after October 2004, the appellant has shown business income Rs.3.78.847/-
These facts are cardinal to the determination of the issue and are on record. Not considering these facts vitiates the order and render it not in accordance with law. It is trite law that tribunal being a fact final authority must, in deciding an appeal, consider with due care all material facts and record its finding based contentions raised by the assessee in the light of the evidence and relevant law. Failure to conform to these minimum requisites will render the Tribunal's order invalid. In this behalf, reliance may be placed on the following decisions:-
• Omar Salay Mohamed Sait Vs CIT Madras, reported in 37 ITR 151 (SC) • Esthuri Aswanthiah V. Commissioner Of Income-Tax, Mysore reported in 66 ITR 478 (SC • Udhavdas Kewalram Vs Commissioner Of Income-Tax, Bombay City reported in 66 ITR 462 (SC) • E. A. Venkataramier and Sons Vs CIT Madras , reported in 65 ITR 316 (Mad.) PRAYER In view of the above, it is prayed that the order passed by Hon'ble ITAT on 10th February, 2012 may kindly be rectified /modified/amended and facts arguments be recorded correctly after giving a due opportunity of being heard to the assessee, if the Hon'ble Bench deems necessary to do so.":- 6 -: MP 67 & 68/12
3. At the time of the hearing, the A.R of the assessee submitted that he is not pressing para 2(I) of the miscellaneous petitions. Hence, the issues raised in para 2(I) of the miscellaneous petitions are rejected for want of prosecution.
4. The only grievance of the assessees left to be adjudicated in the said miscellaneous petitions arises in para 2(II) of the miscellaneous petitions.
5. The A.R submitted that the Tribunal has stated that certain facts are undisputed whereas some of the facts considered by the Tribunal as undisputed were, in fact, disputed, and on which the findings of the CIT(A) were contrary to the findings of the Assessing Officer. Thus, the Tribunal ignored the facts found by the CIT(A) and erroneously considered the facts recorded by the Assessing Officer as undisputed facts. The A.R pointed out that the CIT(A) has found that
(a)The Return of income and Balance Sheet of the appellant reveal that the appellant has been consistently maintaining assets as stock-in-trade as well as investments in its books of account.
(b) The appellant paid short term capital gain at normal rates on the state on the share transactions executed in the period prior to 01-10-2004.
(c) The appellant has proved with evidence that all the transactions conferring short term capital gain were taken delivery of any transacted through DEMAT account. It is also not true that the shares were held only for 2 to 45 days. Many share were held for as long as 365 days and beyond an year as well.
:- 7 -: MP 67 & 68/12
(d)The appellant did not borrow funds for the purpose of investment. The share purchased as investment has also been kept in the investment account and in the stock-in- trade (inventory) account. The appellant has shown investment of Rs. 9,81,132/-, Rs. 59,79,579/- and Rs. 7,41,83,096/- as on 31.03.2003, 31.03.2004 and 31.03.2005 respectively and has shown dividend income in all these years
(e) Even after October 2004, the appellant has shown business income Rs.3.78.847/-
6. We find that the CIT(A) has held as under:
"4. I have carefully considered the facts of the case, submissions made by the AR, and various case laws relied upon by the appellant. Whether the income from share trading would come under the head 'capital gains' or 'business income' has been subject matter of numerous litigation. As per the provisions of the Act, 'business income' and 'capital gains' are subject to tax at different rates of tax. The provisions of the Act do not lay down clear criteria for determining the characterisation of income, but certain genetic principles have evolved out of the judicial precedents and administrative dispensation. Earlier in 1989, vide Instruction No. 1827 dated 31·08·89, certain tests were laid down by the Central Board of Direct Taxes (CBDT) to distinguish between shares held as stock-in-trade and shares held as investment. The CBDT has issued Circular No.4/2007, dated 15.06.07 to provide further guidelines for determining whether a person is a trader in stocks or an investor in stocks. The said Circular, issued as a supplement to the earlier Instruction of 1989, reiterates the principles laid down in the earlier judicial decisions and, more specifically, reproduces certain observations made in the two decisions of the Hon'ble Supreme Court (CIT v Associated Industrial Development Company (P) Ltd (1971) 82 ITR 586 (SC) and CIT v H. Holck Larsen (1986) 160 ITR 67 (SC)}. The principles laid down by the said Circular are as follows:
(i) Whether a particular holding of shares is by way of investment or forms part of the stock-in-trade is a matter which is within the knowledge of the assessee who holds the shares and it should, in normal circumstances, be in a position to produce evidence :- 8 -: MP 67 & 68/12 from its records as to whether it has maintained any distinction between those shares which are its stock-in-
trade and those which are held by way of investment.
(ii) Where a company purchases and sells shares, it must be shown that they were held as stock-in-trade and that existence of the power to purchase and sell shares in the memorandum of association is not decisive of the nature of transaction;
(iii) The substantial nature of transactions, the manner of maintaining books of accounts, the magnitude of purchases and sales and the ratio between purchases and sales and the holding would furnish a good guide to determine the nature of transactions;
(iv) Ordinarily, the purchase and sale of shares with the motive of earning a profit would result in the transaction being in the nature of trade / adventure in the nature of trade, but where the object of the investment in shares of a company IS a derive income by way of dividend, etc., then the profits accruing by changes in such investment (by sale of shares) will yield capital gain and not revenue receipt.
4.1 Importantly, the Circular also recognises that an assessee could have two portfolios viz., investment portfolio comprising of securities which are to be treated as capital assets and trading portfolio comprising of stock-in-trade which are to be treated as trading assets. The Mumbai Tribunal in the case of Gopal Purohit v JCIT (2009) 122 TTJ 87 (Mum) has reiterated the principles laid down in the above-mentioned CBDT Circular and has concluded that an assessee can be an investor and trader simultaneously and hence income earned on the same should be classified accordingly.
4.2 The Hon'ble Supreme Court in Raja Bahadur Kamakhya Narain Singh (supra) has held that the distinction between the two types of transactions is not always easy to make. However, if the facts of the appellant are considered against the principles laid down by the judicial precedents and CBDT Circular, it is clear that the appellant has made substantial compliance to the criteria for investment. A perusal of the returns of income and balance sheets of the appellant reveal that the appellant has been consistently maintaining assets as stock-in-trade as well as investments in its books of account. There is no dispute that the assessee has claimed exemption u/s 10(38) and has paid tax u/s 111A at concessional rate on transactions where Security :- 9 -: MP 67 & 68/12 Transaction Tax had been paid. It is also noted that the appellant has paid tax on short term capital gain at normal rates on the share transactions executed in the period prior to 01-10-2004. There was an amendment in the Act by Finance Act, 2004 whereby section 10(38) of the Act was changed and a concessional rate of tax at the rate of 10% was levied subject to the condition that the transactions resulting into this type of capital gains suffer Security Transaction Tax. If any advantage accrues to the assessee due to a legislative enactment which confers certain advantage on the appellant, then the same cannot be taken away by the revenue by treating the transaction in such a way that the appellant suffers the higher / maximum rate of taxation. The modus operandi of the appellant, the manner of keeping the records and presentation of shares as investment at the end is same in all the years. Therefore, there is no reason as to why the claim made by the appellant should not be accepted. The appellant has no doubt transacted in large number of shares which have given it "business profit" as well as "capital gain". That by itself could not convert a capital gain into business profit. Though the period of holding for long term capital gain has been specified in the Act, no such period has been specified for short term capital gain But the appellant has proved with evidence that all the transactions conferring short term capital gain were taken delivery of and transacted through DEMAT account. It is also not true that the shares were held only for 2 to 45 days. Many shares were held for as long as 365 days. In any case, the learned Assessing Officer has not disturbed the long-term capital gain. Thus, impliedly, as per the Assessing Officer, either the shares were held for more than 12 months or for a period of 2 to 45 days. This is factually wrong and the appellant has held many shares for period exceeding 45 days upto 12 months. (The appellant did not borrow funds for the purpose of investment and utilised his own funds for the shares held as investment. The borrowed funds from ILFS was for F&O business and not for the purpose of investment. The shares purchased as investment have also been kept in the investment account and not in the stock-in-trade (inventory) account. The appellant has shown investment of Rs.9,81,132/-, Rs.59,79,579/- and Rs.7,41,83,096/- as on 31-03-2003, 31-03- 2004 and 31-03- 2005 respectively. He has also shown dividend incomes in all the years. The assertion that appellant did not show any business income from trading in shares after 01-10-2004 is also not correct. He has also shown business income of Rs 3,78,847/- after October, 2004. In view of the above factual position and judicial precedents, it is held that the Assessing Officer was not correct in treating the "short- term capital gain" as "business income". The Assessing Officer is, accordingly, directed to accept the short-term capital gain shown by the appellant. The appellant succeeds on this ground."
:- 10 -: MP 67 & 68/12
7. The Tribunal, vide para 5 of its order dated 10.2.2012, has held as under:
"5. We have considered the rival submissions. A perusal of the assessment order, more specifically para 5, clearly brings out the nature of transactions. These facts as brought out by the Assessing Officer remained undisputed. Admittedly, the assessees can maintain two portfolios, being trading in shares and investments. In the present case it is noticed that from 1.4.2004 to 30.9.2004 the assessees continued to hold that they were doing business. Suddenly from 1.10.2004 to 31.3.2005 the assessees changed their stand that they want to do investments. However, during this period when the assessees are claiming to be doing investments, the assessees have purchased and sold shares of more than 106 companies and the volume of shares transacted is in a few lakhs. The holding period of the shares is also very short. The consistent practice of the assessees has been to treat the transactions as business. The assessees have changed the consistent stand from business to investment without showing any valid cause. In any case, considering the volume of the transactions as also the ratio between the purchase and sale and the holdings, even by applying the principles as laid down by the Hon'ble Supreme Court in the case of Raja Bahadur Visheshwara Singh, referred to supra, the transactions can be considered only as a business transaction and not one that gives rise to short term capital gains. Even applying the decision relied upon by the learned C!T(A) in the case of Gopal Purohit, referred to supra, as the assessees have been consistently following the practice of treating the transactions in shares as business, a different stand should not be taken for the period 1.10.2004 to 31.3.2005. In the circumstances, we are of the view that the finding of the learned CIT(A) on this issue is on a wrong footing and calls for interference. In the circumstances, the finding of the learned CIT(A) stands reversed and that of the Assessing Officer stands restored. In the circumstances, the appeals of the Revenue are allowed. "
8. Thus, we find that the Tribunal has erred in not considering certain findings of the CIT(A), such as business income of ` 3,78,847/- was shown by the assessee after 1.10.2004, short term capital gains were also shown before 30.9.2004, certain shares were :- 11 -: MP 67 & 68/12 held for as long as 365 days, assessee consistently in his Balance Sheet of earlier years has also shown investment in shares apart from shares acquired as stock-in-trade and holding that it is not in dispute that the assessee has suddenly changed from 1.10.2004 its consistent practice of showing the proceeds from share transaction business as income and not capital gains; and shares were held for a very short period of time. We, therefore, find that there was an apparent mistake in this observation of the Tribunal. Further the assessee has claimed that these facts were cardinal to decide the issue which was before the Tribunal and therefore, the Tribunal should recall its order dated 10.2.2012.
9. We find that the Hon'ble Allahabad High Court in the case of CIT vs Moolchand Shyam Lal, 273 ITR 160(All) has held as under:
"5. Thus, it is now well-settled that in the absence of any specific power conferred by the statute or inferred by implication, the Tribunal Which has been constituted under the Act cannot exercise any power of review. No such power can be inferred by implication nor there is any specific provision in the Act providing for review. However, if an error falls within the provisions of section 254(2) of the Act, then surely. the Tribunal can exercise the power conferred under the said Act and rectify its mistake. It is well settled that, if the facts of a particular case has been recorded incorrectly or some error has crept in, which does not require any debate and is apparent on the record, such a mistake can be corrected in exercise of powers under section 254(2). The present one is one of such cases where the Tribunal had incorrectly recorded certain factual aspect in its order which, upon an application being made, it had deleted such portion and restored the appeal to its file to be decided afresh. The Tribunal cannot be said to have committed any illegality as the mistake was apparent on the face of the record which falls within the provisions of section 254(2) of the Act.":- 12 -: MP 67 & 68/12
10. In the above facts and circumstances of the case, we find that it shall be in the interest of justice, to recall the consolidated order of the Tribunal dated 10.2.2012 passed in I.T.A.Nos.233/Mds/2010 and 234/Mds/2010. We order accordingly and direct the Registry to fix the appeals for hearing in usual course.
11. In the result, both the miscellaneous petitions are allowed.
Order pronounced on , the of December 2012,
at Chennai
As per my separate order
Sd/- Sd/-
(V. DURGA RAO) (N.S. SAINI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
04/01/2013 07.1.2013
Dated: December, 2012
RD :
Copy to:
1. Petitioner
2. Respondent
3. CIT(A)
4. CIT
5. DR
:- 13 -: MP 67 & 68/12
PER V. DURGA RAO, JUDICIAL MEBER :
I have gone through the proposed order and after careful perusal of the same I regret that I am unable to concur with the reasoning and conclusion of my learned brother, the Accountant Member. Accordingly, after due discussion with my learned brother, I propose to write my separate order for the reasons given hereafter.
2. The present miscellaneous applications are filed by the assessees on the ground that relevant facts have been ignored while adjudicating the appeals.
3. The learned counsel for the assessee has submitted that certain material facts which were on record, as recorded by the learned CIT(Appeals), were not considered by the Tribunal, namely, "a) The return of income and Balance Sheet revealed that the appellant has been consistently maintaining assets as stock-in-trade as well as investments in its books of account.
b) The appellant paid short term capital gain at normal rates on the state on the share transactions executed in the period prior to 01-10-2004. :- 14 -: MP 67 & 68/12
c) The appellant has proved with evidence that all the transactions conferring short term capital gain were taken delivery of any transacted through DEMAT account. It is also not true that the shares were held only for 2 to 45 days. Many share were held for as long as 365 days and beyond an year as well.
d) The appellant did not borrow funds for the purpose of investment. The share purchased as investment has also been kept in the investment account and in the stock-in-trade (inventory) account. The appellant has shown investment of ` 9,81,132/-, ` 59,79,579/- and ` 7,41,83,096/- as on 31.03.2003,31.03.2004 and 31.03.2005 respectively and has shown dividend income in all these years.
e) Even after October 2004, the appellant has shown business income ` 3,78,87/-.
These facts are cardinal to the determination of the issue and are on record. Not considering these facts vitiates the order and render it not in accordance with law. It is trite law tribunal being a fact final authority must, in deciding an appeal, consider with due care all material facts and record its finding based on contentions raised by the assessee in the light of the :- 15 -: MP 67 & 68/12 evidence and relevant law. Failure to conform to these minimum requisites will render the Tribunal's order invalid. In this behalf, reliance may be placed on the following decisions :
* Omar Salay Mohamed vs. CIT
Madras,reported in 37 ITR 151 (SC)
* Esthuri Aswanthiah v. Commissioner of
Income-tax, Mysore reported in 66 ITR 478 (SC) * Udhavdas Kewalram v. Commissioner of Income-tax, Bombay City reported in 66 ITR 462 (SC) * E.A. Venkataramier and Sons v. CIT Madras, reported in 65 UITR 316 (Mad)."
Accordingly, the learned counsel for the assessees prayed for recalling the order passed by the Tribunal.
4. On the other hand, the learned DR strongly opposed the miscellaneous applications filed by the assessees and submitted that the above miscellaneous applications do not come within the purview of section 254(2) of the Income Tax Act, 1961 ('the Act' for short) . He further submitted that the learned counsel for the assessee who had appeared before the Tribunal at the first instance, i.e. at the time of hearing of the appeals, did not dispute the detailed arguments advanced by the Departmental :- 16 -: MP 67 & 68/12 Representative and, therefore, under the garb of rectification of mistake, it is not possible for the assessees to take a further chance of re-arguing the appeals which have already been decided. He submitted that whether the transactions carried on by the assessee for the period 01-10-2004 to 31-03-2005 amounted to business income or short-term capital gains, is a debatable issue. He further submitted that the rectification is not possible if the question is debatable. The learned DR submitted that the Tribunal, after considering the entire facts and circumstances of the case and by applying independent mind, came to the conclusion that it is business income. It was further submitted that the Tribunal has no power to review its order.
5. Have heard both the parties. The present miscellaneous applications filed by the assessees are against the consolidated order of the Tribunal in ITA Nos. 233 & 234/Mds/2010 dated 10- 02-2012. The Assessing Officer after considering the entire facts and details of the case completed the assessment treating the income of the assessee as business income. On appeal, the learned CIT(Appeals) held the income of the assessees for the period 1.10.2004 to 31.3.2005 as short-term capital gain. The Revenue carried the matter in appeal before the Tribunal. Before :- 17 -: MP 67 & 68/12 the Tribunal the learned DR submitted that the assessees had made profits in the trading in the cash segment. The assessees had offered their profits on trading in the cash segment from 1.4.2004 to 30.9.2004 under the head "profits and gains of business". For the period from 1.10.2004 to 31.3.2005 the assessees had claimed the said trading in the cash segment as "short-term capital gains" by claiming that the same was done for investment purposes. Consequently, the assessees had also claimed lower rate of tax by applying the provisions of section 111A of the Act. It was submitted that the provisions of section 111A came into the statute w.e.f. 1-4-2005. It was further submitted that this change of shifting the income offered by the assessee from the head "business" to "short- term capital gains"
was an after-thought for the purpose of reducing the incidence of tax. It was the submission that the percentage of purchase and sale over the holdings was 98%. It was submitted that the Assessing Officer in the course of the assessment had found that the assessees had during the period 1-10-2004 to 31-3-2005 purchased and sold shares of as many as 106 companies through the Stock Exchange, 6,205,150 shares of various companies had been purchased and sold during the period for a total :- 18 -: MP 67 & 68/12 consideration of ` 77,81,61,051/- and the sale was for an amount of ` 79,70,31,405/-. The holding period of the shares was on an average of 2 to 45 days. Except for a very small number of shares which were purchased during the fag end of the financial year, all the shares purchased during the period 1.4.2004 to 31.3.2005 had been sold within a very short period of time before the close of the financial year. It was submitted that the Assessing Officer had found that the assessees had dealt in large volume of shares in a varied number of companies which clearly showed that the intention of the assessees was only to do business. It was further submitted that the learned CIT(Appeals) had held that the transactions done by the assessee for the period 1-10-2004 to 31-3-2005 was liable to be treated only as a short-term capital gains as the assessees had been consistently maintaining assets in stock-in-trade as well as investments in their books of accounts. It was further submitted that the Revenue was not disputing the fact that the assessees could make investments as also do trading in shares and it was only challenging the issue that the transactions entered into by the assessees in the purchase and sale of shares between the period 1.10.2004 to 31.3.2005 was liable to be treated as business :- 19 -: MP 67 & 68/12 income and not short-term capital gains as the investments were not made during that year. The Assessing Officer also categorically held that the purchase and sale of shares as done by the assessees during the said period was not in the course of investments but was in the course of business. He relied on the decision of the Hon'ble Supreme Court in the case of Raja Bahadur Vishweshwara Singh (deceased) & Others v. CIT, reported in 41 ITR 685 (SC).
6. On the other hand the learned counsel for the assessees, at the time of hearing of the appeals, relied on the decision of the Hon'ble Bombay High Court in the case of CIT v. Gopal Purohit, reported in 336 ITR 287 and submitted that the principle of consistency has to be followed and the assessees are entitled to follow two separate portfolios and accordingly supported the order passed by the learned CIT(Appeals).
7. After considering the above submissions, the Tribunal has held, vide para 5 of its order dated 10-02-2012, as under :
"5. We have considered the rival submissions. A perusal of the assessment order, more specifically para 5, clearly brings out the nature of transactions. These facts as brought out by the Assessing Officer remained undisputed. Admittedly, the assessees :- 20 -: MP 67 & 68/12 can maintain two portfolios, being trading in shares and investments. In the present case it is noticed that from 1.4.2004 to30.9.2004 the assessees continued to hold that they were doing business. Suddenly from 1.10.2004 to 1.3.2005 the assessees changed their stand that they want to do investments. However, during this period when the assessees are claiming to be doing investments, the assessees have purchased and sold shares of more than 106 companies and the volume of shares transacted is in a few lakhs. The holding period of the shares is also very short. The consistent practice of the assessees has been to treat the transactions as business. The assessees have changed the consistent stand from business to investment without showing any valid cause. In any case, considering the volume of the transactions as also the ratio between the purchase and sale and the holdings, even by applying the principles as laid down by the Hon'ble Supreme Court in the case of Raja Bahadur Visheshwara Singh, referred to supra, the transactions can be considered only as a business transaction and not one that gives rise to short term capital gains. Even applying the decision relied upon by the learned CIT(A) in the case of Gopal Purohit, referred to supra, as the assessees have been consistently following the practice of :- 21 -: MP 67 & 68/12 treating the transactions in shares as business, a different stand should not be taken for the period 1.10.2004 to 31.3.2005. In the circumstances, we are of the view that the finding of the learned CIT(A) on this issue is on a wrong footing and calls for interference. In the circumstances, the finding of the learned CIT(A) stands reversed and that of the Assessing Officer stands restored. In the circumstances, the appeals of the Revenue are allowed."
8. Thus the Tribunal by considering the assessment order as also the order passed by the learned CIT(Appeals) and the elaborate submissions made by the learned DR and also by considering the decision of the Hon'ble Supreme Court in the case of Raja Bahadur Visheshwara Singh (supra) as also the decision of the Hon'ble Bombay High Court in the case of Gopal Purohit (supra) came to the conclusion that the share transactions made by the assessee for the period of 1.10.2004 to 31.3.2005 was business income. With the above observation, the Tribunal reversed the order passed by the learned CIT(Appeals) and restored the order passed by the Assessing Officer. :- 22 -: MP 67 & 68/12
9. Before the Tribunal the learned DR has specifically pointed out that the assessees' transactions in the purchase and sale of shares between the period 1.10.2004 and 31.3.2005 were liable to be treated as business income as the assessees have not made any investments during that year. Therefore it was submitted that it is liable to be treated as only the business income. This is the main dispute between the Revenue and the assessees. The learned counsel for the assessee who had appeared before the Tribunal had not shown any material to come to the conclusion that the submissions of the learned DR were not correct. The Revenue has taken a specific stand before the Tribunal by raising ground No.8 that the learned CIT(Appeals) ought to have appreciated the fact that the average holding of shares ranged from 2 to 45 days. The learned counsel for the assessee has not substantiated to show that many of the shares held by the assessee were more than 365 days by producing relevant material. When the Tribunal has applied its independent mind with regard to all the relevant facts by considering the submissions of both sides and also by following the decision of the Hon'ble Supreme Court in the case of Raja Bahadur Vishweshwara Singh (Deceased) & Others v. CIT (supra) and also :- 23 -: MP 67 & 68/12 considering the case law relied upon by the learned counsel for the assessee on the decision of the Hon'ble Bombay High Court in the case of CIT v. Gopal Purohit (supra), in my opinion, the miscellaneous applications filed by the assessees do not come within the scope of section 254(2) of the Act.
10. Insofar as the case laws relied on by the learned counsel for the assessee are concerned, I have gone through the same and find that the facts and circumstances involved therein are entirely different from those involved in the present case. Therefore they will not render any help in deciding the present miscellaneous applications.
11. The scope of section 254(2) of the Act has elaborately been considered by the Hon'ble jurisdictional High Court in the case of Express Newspapers Ltd. v. DCIT (320 ITR 12) (Mad) as follows :
The scope and amplitude of Section 254(2) and the analogous provision Section 154 of the Act have been considered by catena of decisions of the Apex Court and other High Courts. The uniform opinion of the Courts of superior jurisdiction is that a patent, manifest and self- evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected under Section 254(2). An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the record means an error which strikes one on mere looking and does not need a :- 24 -: MP 67 & 68/12 long drawn out process of reasoning on points on which there may be conceivably two opinions. The error should not require any extraneous matte to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of possible views, the case cannot be said to be covered by an error apparent on the face of the record. Section 254(2) specifically empowers the Tribunal to amend at any time within four years from the date of an order, any order passed by it under Section 254(1) with a view to rectify any mistake apparent from the record either suo motu or on an application. In order to attract the application of Section 254(2), the mistake must exist and the same must be apparent from the record. The expression "mistake apparent from the records" contained in Sections 154 and 254(2) has wider content than the expression "error apparent on the face of the record" occurring in Order 47 Rule 1 of C.P.C. The restrictions on the power of review under Order 47 Rule 1 of C.P.C. do not hold good in the cases of Sections 254(2) and 154 of the Act. Section 254(2) does not confer power on the Tribunal to review its earlier order. Under the grab of rectification of mistake it is not possible for a party to take further chance of re-arguing the appeal already decided. What can be rectified under Section 254(2) is a mistake which is apparent and patent. The mistake has to be such for which no elaborate reasons or enquiry is necessary. Where two opinions are possible then it cannot be said to be a mistake apparent on the record. When prejudice resulting from an order is attributable to the Tribunal's mistake, error or omission, it is its bounden duty to set it right. The purpose behind the enactment of Section 254(2) of the Act to amend any order passed under sub-section (1), if any mistake apparent from the records is brought to the notice of the Tribunal, is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent power of the Tribunal. If prejudice is resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error, then the Tribunal :- 25 -: MP 67 & 68/12 would be justified in rectifying its mistake. Rectification can be made only when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. The rectification is not possible if the question is debatable. A point which was not examined on facts or in law cannot be dealt with as a mistake apparent from the record. No error can be said to be apparent on the face of the record if it is not manifest or self evident and requires an examination or argument to establish it. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, is a clear case of error apparent on the face of the record. Vide Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227(SC), Honda Siel Power Products Ltd. v. CIT (2007) 295 ITR 466 (SC); Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233;(1955) 1 SCR 1104; CIT v.
Keshri Metal Pvt. Ltd. (1999) 237 ITR 165 (SC); Deva Metal Powders P. Ltd. v. Commissioner, Trade Tax (2007) 10 VST 751 (SC); (2008) 2 SCC 439, CIT v. Hero Cycles Pvt. Ltd. (1997) 228 ITR 463 (SC), Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137; (1960) 1 SCR 890, Thungabhadra Industries Ltd. v. Government of Andhra Pradesh Rep. by the Deputy Commissioner of Commercial Taxes, AIR 1964 SC 1372, Batuk K. Viyas v. Surat Borough Municipality, ILR 1953 Bom 191, Mrs. K.T.M.S. Umma Salma v. CIT (1983) 144 ITR 890 (Mad), Kil Kotagiri Tea and Coffee Estates Co. Ltd. v. ITAT (1988) 174 ITR 579 (Ker), CIT v. R.Chelladurai (1979) 118 ITR 108 (Mad), State of Tamil Nadu v. Thakorebhai and Brothers (1983) 52 STC 104 (Mad), Jainarain Jeevaraj v. CIT (1980) 121 ITR 358 (Raj), CIT v. Vardhman Spinning (1997) 226 ITR 296 (P&H), Bata India Ltd. v. Deputy Deputy CIT (1996) 217 ITR 871 (Cal) and CIT v. Prahlad Rai Todi (2001) 251 ITR 833 (Gauhati).
From the various judgments of the Supreme Court above referred to and other High Courts, it is clear that the Tribunal's power under Section 254(2) is not to review its earlier order but only to amend it with a view to rectify any mistake apparent from the record. What can be :- 26 -: MP 67 & 68/12 termed as "mistake apparent?". "Mistake" in general means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault, a misunderstanding, a misconception. Mistake in taxation laws has a special significance. It is mostly subjective and the dividing line is thin and indiscernible. "Apparent" means visible, capable of being seen, easily seen, obvious plain, open to view, evident, appears, appearing as real and true, conspicuous, manifest, seeming. The plain meaning of the word "apparent" is that it must be something which appears to be ex-facie and incapable of argument and debate. If such a "mistake apparent on the face of record" is brought to the notice, Section 254(2) empowers the Tribunal to amend the order passed under Section 254(1). Amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order. What is mistake apparent on the face of the record or where does a mistake cease to be mere mistake, and become mistake apparent on the face of the record is rather difficult to define precisely, scientifically and with certainty. An element of indefiniteness inherent in its very nature and it must be discernible from the facts of each case by judiciously trained mind. Mere existence of a mistake or error would not per se render the order amenable for rectification, but such a mistake must be one which must be manifest on the face of the record.
12. In the above case the Hon'ble jurisdictional High Court has held that under the garb of rectification of mistake it is not possible for a party to take another chance of re-arguing the appeal already decided. This observation made by the Hon'ble jurisdictional High Court squarely applies to the present case. The Hon'ble jurisdictional High Court further observed in the above case that the rectification is not possible if the question is :- 27 -: MP 67 & 68/12 debatable. A point on which was not examined on facts or in law cannot be dealt with as a mistake apparent from record. This observation of the Hon'ble jurisdictional High Court also squarely applies to the case in hand.
13. In view of the above, taking into consideration all the facts and circumstances of the case and respectfully following the decision of the Hon'ble jurisdictional High Court in the case of Express Newspapers Ltd. v. DCIT (supra), the miscellaneous petitions are liable to be dismissed. I therefore reject the miscellaneous applications filed by the assessees.
14. In the result, the miscellaneous applications are dismissed.
Sd/-
Chennai, (V. Durga Rao) Dated, the 04th January, 2013. JUDICIAL MEMBER H. :- 28 -: MP 67 & 68/12 IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, CHENNAI BEFORE Dr. O.K.NARAYANAN, VICE-PRESIDENT THIRD MEMBER M.P. No.67(Mds)/2012 in ITA No.233(Mds)/2010 Assessment Year : 2005-06 Shri C.Srikanth, The Deputy Commissioner New No.19/3 (Old Vs. of Income-tax, No.11/3), Company Circle I(1), 3rd Avenue, Besant Nagar, Chennai.
Chennai-600 090.
PAN ABHPS5947E.
(Petitioner) (Respondent)
And
M.P. No.68(Mds)/2012 in
ITA No.234(Mds)/2010
Assessment Year : 2005-06
M/s.Altius Securities Trading The Deputy
Commissioner
(P) Ltd., New No.6 (Old Vs. of Income-tax,
No.29) CIT Colony, II Main Company Circle I(1),
Rd., Mylapore Chennai-4. Chennai.
PAN AACCA4561D.
(Petitioner) (Respondent)
Petitioners by : None - Adjournment
declined.
Respondent by : Dr. S.Moharana, IRS, CIT & Mr. Guru Bashyam, IRS, JCIT Date of Hearing : 18th February, 2013 :- 29 -: MP 67 & 68/12 Date of Order : 25th February, 2013 ORDER PER Dr.O.K.NARAYANAN, VICE PRESIDENT These two Miscellaneous Petitions are filed by the assessees. These petitions are in the nature of Rectification Petitions. The Tribunal had passed a common order on 10th February, 2012 in the two appeals filed by the Revenue in ITA Nos.233 & 234(Mds)/2010. Those appeals related to the assessment year 2005-06. The appeals were filed against the assessees, Shri C.Srikanth and M/s.Altius Securities Trading (P) Ltd. It is the case of the assessees, who were respondents in the Revenue's appeals mentioned above, that certain mistakes are apparent from the common order passed by the Tribunal and, therefore, those mistakes may be rectified as prayed for, in these petitions.
2. These petitions were heard by the Division Bench on 7th December, 2012. The learned Accountant Member, who authored the leading order, agreed with the assessees and held that there are mistakes apparent from the common order dated 10th February, 2012 passed by the :- 30 -: MP 67 & 68/12 Tribunal in the appeals filed by the Revenue. He accordingly allowed the Rectification Petitions filed by both the respondent-assessees. The learned Judicial Member could not agree with the proposed order of the learned Accountant Member. Accordingly, he passed a dissenting order, rejecting the contentions raised by the petitioners. He dismissed the miscellaneous petitions filed by the assessees.
3. Thus arose a difference of opinion between the learned Members who constituted the Division Bench. Consequently, references under section 255(4) of the Income-tax Act, 1961 were made separately by the learned Members for nominating a Third Member to resolve the difference.
4. The learned Accountant Member referred the point of difference as follows:-
"Whether keeping in view the findings of the CIT(A), there was any mistake apparent from the records rectifiable u/s 254(2) of the Act in the order dated 10.2.2012 passed by the Tribunal;
wherein the Tribunal proceeded on the :- 31 -: MP 67 & 68/12 assumption that the facts of the case as brought out by the Assessing Officer in the assessment order were undisputed facts of the case?"
5. The learned Judicial Member framed the point of difference as under:-
"Whether, on the facts and in the circumstances of the case, the Miscellaneous Applications filed by the assessees do come within the purview of section 254(2) of the Income-tax Act, 1961 or not?"
6. The Hon'ble President through his proceedings dated 24th January, 2013 has nominated me as the Third Member. That is how the matter is placed before me.
7. When the matters were called on for hearing on Monday, the 18th of February, 2013, adjournment applications received from one Mr.N.R.Suresh, a Chartered Accountant at Chennai, were placed before me. It is stated in the adjournment applications that a senior advocate is engaged to appear for the assessees, but as he was engaged before the Supreme Court, it would not be possible :- 32 -: MP 67 & 68/12 for him to appear on the said date of hearing on 18th February, 2013. Therefore, he sought adjournment, suggesting four convenient dates of the senior advocate available in the month of April, 2013.
8. Notices of hearing in the present cases were issued by the Registry on 31st January, 2013. The assessees have received the notices in time. But, the assessees sought adjournments only last minute through letter dated 13th February, 2013. May it be so. When the matter was called on for hearing, even the local chartered accountant available in Chennai, did not appear before the Bench to take a fresh date, after ascertaining the convenience of the Bench as well. The local chartered accountant, it is seemed, is bothered only about the convenient dates of the senior advocate and not bothered about the convenience of the Bench. The present Third Member References are not on appeals, but on the miscellaneous applications filed by the petitioners in the light of the Tribunal order, which has already been passed. Petitions of this nature cannot be adjourned from time to time without convincing reasons. This is because the delay in :- 33 -: MP 67 & 68/12 disposing of these miscellaneous petitions will keep the order of the Tribunal, which has already been passed, in suspended animation.
9. Taking an overall view of the situation and exercising the judicial discretion conferred on me, I am inclined to decline the adjournment prayers put in by the briefing chartered accountant and proceed to dispose of the matter ex-parte, qua the petitioners.
10. Dr. S.Moharana, the learned Commissioner of Income-tax and Shri Guru Bashyam, the learned Joint Commissioner of Income-tax, appeared for the Revenue and presented the case.
11. The petitioner Shri C.Srikanth is the managing director of M/s.Altius Securities Trading(P) Ltd., the other petitioner. The issue considered by the Tribunal in the appeals filed by the Revenue was whether the shares transacted during the period between 1-10-2004 to 31-3- 2005 could be treated as sale of investments, resulting in short-term capital gains or the transactions should be treated as regular business transactions, resulting in profits and :- 34 -: MP 67 & 68/12 gains of business. The assessees had made a claim before the Assessing Officer that a particular segment of share transactions relating to the above mentioned period was in the nature of investments and, therefore, the surplus arising out of the sale of those shares should be treated as short- term capital gains. This was not accepted by the Assessing Officer. The Assessing Officer treated the surplus as business income. In first appeals filed by the assessees, the Commissioner of Income-tax(Appeals) reversed the order of the Assessing Officer and held that the transactions are in the segment of investment and, therefore, the surplus should be treated as short-term capital gains. In appeals filed by the Revenue, the Tribunal agreed with the arguments of the Revenue and held that the disputed transactions were in the nature of business transactions and, therefore, the surplus should be treated as normal business profits. The appeals filed by the Revenue were allowed.
12. These two petitions are filed in the context of the above common order passed by the Tribunal on 10th February, 2012.
:- 35 -: MP 67 & 68/12
13. The first common ground raised in these Rectification Petitions is that the Tribunal inadvertently has not adjudicated ground Nos.6 and 7 argued by the counsel for the petitioners, dealing with the issue that the assessees are dealing in shares not only in the course of business but also dealing in shares as investments. The second mistake pointed out by the petitioners is that the Bench has not taken cognizance of the relevant facts recorded by the Commissioner of Income-tax(Appeals) in his order dated 27th November, 2009. Those facts also supported the propositions made by the assessees that they are dealing in shares in two segments; one relating to regular business and the other relating to investments.
14. The learned Accountant Member in his 12-page order has agreed with the contentions of the petitioners and held that there is an apparent mistake in the observation of the Tribunal in the matter of holding shares by the assessees in the nature of investments. He accordingly proposed to recall the consolidated order passed by the Tribunal on 10th February, 2012 in ITA Nos.233 and 234(Mds)/2010 and to post the appeals for fresh hearing in usual course. :- 36 -: MP 67 & 68/12
15. The learned Judicial Member, on the other hand, held that the Tribunal has considered all the relevant facts available on record while disposing of the appeals filed by the Revenue and the petitioners are in fact making an attempt to re-argue the cases once again before the Tribunal. He further held that rectification is not possible if the question is debatable. A point, which was not examined on facts or in law, cannot be dealt with as a mistake apparent from record. He accordingly proposed to dismiss the petitions.
16. After hearing the Revenue, going through the original Tribunal order, the connected orders of the Commissioner of Income-tax(Appeals), the miscellaneous petitions filed by the assessees and the dissenting orders of the learned Members, I find that the issues raised by the petitioners by way of mistakes are atleast debatable in nature. The anchor for the arguments of the petitioners that the Tribunal has not considered the facts of the cases in the correct perspective, is based on the orders of the Commissioner of Income-tax(Appeals). It is to be seen that the Tribunal has decided the appeals not on the basis of the facts reflected in the orders of the Commissioner of Income- :- 37 -: MP 67 & 68/12 tax(Appeals) alone. The Tribunal has a duty to consider the assessment orders as well, which has been rightly done by the Tribunal. The Tribunal has dismissed both the appeals after considering the facts of the cases as available in the records of the Assessing Officer as well as in the orders passed by the Commissioner of Income-tax(Appeals). Therefore, the argument of the petitioners, concentrating in the order of the Commissioner of Income-tax(Appeals) alone, is a one-side approach.
17. The only issue to be considered by the Tribunal was whether the shares transacted during a particular period were transacted in the nature of regular business or in the nature of investments held by the assessees. The Tribunal considered the entire matrix of the facts and held that the shares were transacted in the course of regular business. Accordingly, the Tribunal upheld the orders of the Assessing Officer treating the surplus as the business income of the petitioners.
18. The order of the Tribunal may be right or wrong, which the Hon'ble High Court alone can decide. As the Tribunal does not have the power to review its order, it is not :- 38 -: MP 67 & 68/12 possible for the Tribunal to go beyond the limited scope of rectification and afford an opportunity to the petitioners to re- argue their cases.
19. As is well known, the mistake must be apparent from records. The petitioners themselves have taken great pain in drafting the miscellaneous petitions, running to four pages each, alongwith annexures A and C.
20. The order of the learned Accountant Member runs to 12 pages dealing on facts as well as on the legal propositions declared by courts of law. It is after such a long effort that the learned Accountant Member has come to a finding that mistakes are apparent in the order of the Tribunal. The Hon'ble Judicial Member also has taken equal pain in writing a 15-page dissenting order to hold that no mistakes are apparent from the order of the Tribunal. The length of the orders per se, will not decide the merit of the petitions. But still I have mentioned all these things to show prima facie that how debatable the issue is. It is only after long-winding discussions that it was possible to the Hon'ble Members to pass the dissenting orders even. :- 39 -: MP 67 & 68/12
21. If we go through the common order passed by the Tribunal, it is to be seen that they have considered not only the orders of the Commissioner of Income-tax(Appeals), but also the orders of the assessing authority. The discussions reflected in the common order of the Tribunal have their base on all the relevant facts of the cases. It might be true that the Tribunal has not adjudicated the appeals after discussing the grounds one after the other in a seriatim. Such a mechanical approach is not called for in adjudicating second appeals. The issue has been properly framed and considered in the order and the issue has been decided in the light of the facts of the cases. It is the pith and substance, and not the format of the order, which is important in the orders passed by appellate courts.
22. Therefore, in my considered view, there is no mistake apparent on record in the common order passed by the Tribunal on 10th February, 2012 in ITA Nos.233 & 234(Mds)/2010.
23. I agree with the order passed by the learned Judicial Member. The miscellaneous petitions filed by the assessees are liable to be dismissed.
:- 40 -: MP 67 & 68/12
24. These files shall be hereafter placed before the regular Bench for passing final orders in the light of majority view.
Dated, this Monday, the 25th of February, 2013 at Chennai.
Sd/-
(Dr. O.K.Narayanan) Vice-President THIRD MEMBER Chennai, Dated, the 25th February, 2013.
V.A.P. :- 41 -: MP 67 & 68/12 IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, CHENNAI [BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER] M.P.No.67/Mds/2012 [In I.T.A No.233/Mds/2010] Assessment year : 2005-06 Shri C.Srikanth vs The Dy. CIT New No.19/3 (Old No.11/3) Company Circle I(1) 3rd Avenue, Besant Nagar Chennai Chennai 600 090 [PAN - ABHPS5947E] (Petitioner) (Respondent) M.P.No.68/Mds/2012 [In I.T.A No.234/Mds/2010] Assessment year : 2005-06 M/s Altius Securities Trading vs The Dy. CIT (P) Ltd Company Circle I(1) New No.6 (Old No.29) Chennai CIT Colony, II Main Road Mylapore Chennai 600 004 [PAN - AACCA4561D] (Petitioner) (Respondent) Petitioner by : Shri N.R.Suresh, FCA Respondent by : Shri T.N.Betgiri, Jt.CIT Date of Hearing : 08-03-2013 Date of Pronouncement : 08-03-2013 :- 42 -: MP 67 & 68/12 ORDER PER N.S. SAINI, ACCOUNTANT MEMBER:
On difference of opinion between Members constituting the Bench, the case was referred to the Hon'ble President for nomination of Third Member under section 255(4) of the Act.
2. The Hon'ble Vice-President, sitting as the Third Member, has agreed with the view of the Judicial Member that the miscellaneous petitions filed by the assessees are liable to be dismissed. Thus, in view of the majority opinion, the miscellaneous petitions filed by the assessees are dismissed.
5. In the result, the miscellaneous petitions filed by the assessees are dismissed.
Order pronounced on Friday, the 08th of March, 2013, at Chennai Sd/- Sd/-
(V. DURGA RAO) (N.S. SAINI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated : 08th March, 2013
RD
Copy to:
6. Petitioner
7. Respondent
8. CIT(A)
9. CIT
10. DR