Twenty First Century Management ... vs Assessee

आयकर अपील य अ धकरण, 'सी' यायपीठ, चे नई IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH, CHENNAI ी चं पज ू ार , लेखा सद य एवं ी वी. दग ु ा! राव, या"यक सद य के सम$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER SHRI V. DURGA RAO, JUDICIAL MEMBER आयकर अपील सं./ I.T.A. No.381/Mds/2013 & C.O.No.81/Mds/2013 (in ITA No.381/Mds/2013) ( नधा रण वष / Assessment Year : 2007-2008)

The Assistant Commissioner Vs M/s. Twenty First Century of Income Tax, Management Services Ltd, Company Circle III(2), G3, No.67, Eldams Road, Chennai 600 034. Chennai 600 018.

[PAN: AAACT 2397L] (अपीलाथ&/Appellant) ('(यथ&/Respondent/Cross Objector)

अपीलाथ क ओर से / Appellant by : Shri. A.V. Sreekanth, IRS, JCIT. यथ क ओर से / Respondent by : Shri. R. Viswanathan, C.A.

सन ु वाई क तार ख/Date of hearing : 19.05.2015 घोषणा क तार ख /Date of Pronouncement : 19.06.2015

आदे श / O R D E R

PER CHANDRA POOJARI, ACCOUNTANT MEMBER

The appeal by Revenue and Cross objection by assessee are

directed against the order of Commissioner of Income Tax (Appeals),

Trichy, dated 07.12.2012 for the assessment year 2007-2008.

:- 2 -: I.T.A.No.381/Mds/2013 & C.O.No.81/Mds/2013.

2. The issue involved in this appeal is with regard to treating the

gains arising from sale of shares as Short Term Capital Gains Head

though the Assessing Officer assessed the same as business income.

3. The assessee has purchased 14,000 shares of M/s. Anent Raj

Industries and 1,44,431 shares of M/s. KLG systems and sale on

same, the assessee offered the gains as short term capital gains in

its return of income. It is noted by the Assessing Officer that

assessee had sold 74,000 shares of M/s. Anant Raj Industries and

3,75,980 shares of M/s. KLG Systems. The assessee pleaded before

the Assessing Officer that it was held originally had stock in trade of

60,000 shares of M/s. Anant Raj Industries and 2,31,549 shares of

M/s.KLG systems and converted the stock in trade as investment.

The Assessing Officer not agreeing with the contention of the

assessee treat the gain in share of sale as short term capital gains.

Aggrieved, the assessee went on appeal before the Commissioner of

Income Tax (Appeals).

3.1 On appeal, the Commissioner of Income Tax (Appeals) agreed

with the contention of the assessee by placing reliance on the

judgment of High Court of Delhi in the case of V. Jubilant Securities

(P) Ltd vs. CIT reported in (2011) 11 Taxman.com 88 and other

precedents. Against this, the Revenue is in appeal before us.

:- 3 -: I.T.A.No.381/Mds/2013 & C.O.No.81/Mds/2013.

4. At the time of hearing, the Departmental Representative

submitted that the assessee filed this appeal before the

Commissioner of Income Tax (Appeals) on 11.05.2011, whereas the

order u/s.143(3) was served to the assessee on 04.01.2010, hence

the appeal should have been filed in February, 2010 before the

Commissioner of Income Tax (Appeals). In the absence of any

mention of condonation of delay in filing of appeal, the Commissioner

of Income Tax (Appeals) ought to have dismissed the appeal in

limine as belated.

5. The ld. Authorised Representative for assessee submitted that

the assessee had filed condonation petition before the Commissioner

of Income Tax (Appeals). If it was not discussed by the Commissioner

of Income Tax (Appeals), the assessee cannot be found fault with in

this primary issue.

6. Admittedly, there was a delay in filing of appeal before the

Commissioner of Income Tax (Appeals). However, there is no

discussion whatsoever by the Commissioner of Income Tax (Appeals)

regarding delay in filing of appeal before him. The Commissioner of

Income Tax (Appeals) without condoning the delay, adjudicated the

appeal on merit which is not appropriate. Hence in the interest of :- 4 -: I.T.A.No.381/Mds/2013 & C.O.No.81/Mds/2013.

justice, we are of the opinion that it is appropriate to remit the case

to the file of the Commissioner of Income Tax (Appeals) to give his

findings with reference to delay in filing the appeal before him and

thereafter, he shall proceed to decide the issue on merits.

7. At this stage, we refrain from going into other grounds raised

by the Revenue in this appeal, since we are remitting the issue with

regard to delay of filing of appeal before the Commissioner of Income

Tax (Appeals) for his consideration. The Cross objection filed by the

assessee has become infructuous and accordingly dismissed.

8. In the result, the appeal of the Revenue is partly allowed and

the Cross objection by assessee is dismissed.

Order pronounced on Friday, the 19th day of June, 2015, at Chennai.

Sd/- Sd/-

(वी. दग ु ा! राव) (चं पज ू ार ) V. DURGA RAO (CHANDRA POOJARI) या"यक सद य / JUDICIAL MEMBER लेखा सद य/ ACCOUNTANT MEMBER चे"नई/Chennai. #दनांक/Dated:19.06.2015. KV

आदे श क त&ल'प अ(े'षत/Copy to: 1. अपीलाथ /Appellant 2. यथ / Respondent 3. आयकर आयु*त (अपील)/CIT(A) 4. आयकर आयु*त/CIT

5. 'वभागीय त न-ध/DR 6. गाड फाईल/GF.

:- 5 -: I.T.A.No.381/Mds/2013 & C.O.No.81/Mds/2013.