Blue Shell Investment P. Ltd, Mumbai vs Department Of Income Tax

ी डी. म मोहन, उपा य एवं ी संजय अरोड़ा, लेखा सद य के सम । BEFORE SHRI D. MANMOHAN, V.P. AND SHRI SANJAY ARORA, AM

आयकर अपील सं./I.T.A. No. 4299/Mum/2009 ( नधा रण वष / Assessment Year: 2006-07) Asst. CIT-5(1), Blue Shell Investment Pvt. Ltd. Room No. 525, Aayakar Bhavan, बनाम/ M/s. Kejriwal House, M. K. Road, Mumbai-400 020 7, N. Gamadia Road, Vs. Mumabi-400 026

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAACB 1831 B (अपीलाथ$ /Appellant) : (%&यथ$ / Respondent)

अपीलाथ$ क' ओर से / Appellant by : Shri V. K. Bora

%&यथ$ क' ओर से/Respondent by : Shri S. V. Joshi

सनु वाई क' तार-ख / : 10.02.2015 Date of Hearing घोषणा क' तार-ख / : 11.03.2015 Date of Pronouncement आदे श / O R D E R Per Sanjay Arora, A. M.:

This is an Appeal by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-V, Mumbai ('CIT(A)' for short) dated 04.05.2009, partly allowing the Assessee's appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2006-07 vide order dated 08.12.2008.

2. The appeal raises the following grounds:

'1. On the facts and in the circumstances of the case and as per law, the ld. CIT(A) erred in not appreciating the fact that the assessee had paid lease rent of Rs.6,00,000/- to the persons covered by section 40A(2)(a) of the Act whereas lease rent recovered is only Rs.4,80,000/-.

2 ITA No. 4299/Mum/2009 (A.Y. 2006-07) Asst. CIT vs. Blue Shell Investment Pvt. Ltd.

2. On the facts and in the circumstances of the case and as per law, the ld. CIT(A) erred in not appreciating the fact discussed in detail in the assessment order while directing the A.O. to assess the profit on sale of shares as "capital gains" instead of "business".'

3. At the outset, it was submitted by the ld. Authorized Representative (AR), the assessee's counsel, that the appeal by the Revenue raises the same issues as before the Appellate Tribunal for A.Y. 2004-05 which have since been disposed of by it. Adverting to the copies of the separate orders by it placed on record for that year, i.e., pursuant to the appeals by the assessee and the Revenue, he would submit that ground no. 1, being the subject matter of the Revenue's appeal (in ITA No. 4469/Mum/2008 dated 13.06.2012/PB pg. 14-16) had been set aside by the tribunal in-as-much as the same had a low tax effect, so that it was not maintainable in terms of section 268A of the Act (refer para 3 of the order).

As regards ground no.2, the issue is recurring and stands restored by the tribunal back to the file of the Assessing Officer (A.O.) for fresh adjudication by applying the principle as enshrined in the decision cited to the facts of the case, and after affording proper opportunity of hearing to the assessee. The matter would have to be decided accordingly (refer para 7 in ITA No. 4468/Mum/2008 dated 12.07.2013/PB pgs.17-25). The ld. Departmental Representative (DR) would fairly agree with the contentions raised by the ld. AR.

4. We have heard the parties, and perused the material on record.

Clearly, both the issues being agitated by the Revenue in the instant case are subsisting issues, arising year after year. The tribunal for A.Y. 2004-05, i.e., the earliest year for which the issue raised per ground no. 2 stands brought to our notice by the parties, after a detailed discussion, explaining and elucidating the principle/criteria guiding the decision in the matter, set aside the assessment for fresh determination. The matter, accordingly, would warrant being similarly restored to the file of the A.O. with like directions.

3 ITA No. 4299/Mum/2009 (A.Y. 2006-07) Asst. CIT vs. Blue Shell Investment Pvt. Ltd.

The first issue, i.e., as raised per ground no. 1, again recurring, has not received consideration at the end of the tribunal in-as-much as the Revenue's appeal was not maintainable. The ld. CIT(A) for the current year only followed his predecessor for the earlier years, i.e., A.Ys. 2004-05 and 2005-06. A perusal of the order by the first appellate authority for A.Y. 2005-06, whereat the matter, as it appears, was decided by it for the first time, however, does not bring out the full facts of the case, to enable its proper determination. This matter, accordingly, is restored back to the file of the A.O. for the purpose, and who shall allow reasonable opportunity of hearing to the assessee, also addressing the aspect as to why this issue, i.e., the claim of loss and, further, at the same amount of Rs.1.20 lacs, should arise from year to year. We decide accordingly.

5. In the result, the Revenue's appeal is allowed for statistical purposes.

प2रणामतः राज व क' अपील सां4यक'य उ5े6य के 7लए वीकृत क' जाती है ।

Order pronounced in the open court on March 11, 2015

Sd/- Sd/-

(D. Manmohan) (Sanjay Arora) उपा य / Vice President लेखा सद य / Accountant Member मुंबई Mumbai; ;दनांक Dated : 11.03.2015 व.<न.स./Roshani, Sr. PS

आदे श क" # त%ल&प अ'े&षत/Copy of the Order forwarded to :

1. अपीलाथ$ / The Appellant

2. %&यथ$ / The Respondent

3. आयकर आय= ु त(अपील) / The CIT(A)

4. आयकर आय= ु त / CIT - concerned

5. @वभागीय %<त<नCध, आयकर अपील-य अCधकरण, मंब ु ई / DR, ITAT, Mumbai

6. गाडE फाईल / Guard File आदे शानस ु ार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai