Vikram Vishwanath, vs Assessee

Shri Vikram Viswanath, 865, 12th Main, III Block, Near Rama Temple, Koramangala, Bangalore-560034. ... Appellant PAN: ACAPV 6310 J

Vs.

Joint Commissioner of Income-tax (OSD) Circle 12(5), Bangalore. ... Respondent

Appellant by: Shri V.G.Gurunathan, Advocate. Respondent by: Shri Farhat Hussain Qureshi, JCIT(DR).

Date of hearing : 18/02/2015. Date of pronouncement: 20/02/2015.

Per Smt. P.MADHAVI DEVI, JM:

This is an appeal filed by the assessee against the order

of the CIT(A)-III, Bangalore, dated 31/01/2013 for the

assessment year 2009-10.

2. Brief facts of the case are that the assessee, an

individual, filed his return of income on 31/3/2010 declaring ITA No.155/Bang/2013 Shri Vikram Viswanath.

Page 2 of 4 income of Rs.46,35,392/-. During the assessment proceedings

u/s 143(3) of the Income-tax Act, 1961 [hereinafter referred to

as 'the Act' for short], the Assessing Officer (AO) observed that

the assessee had computed long term capital gain on account of

transfer of shares held in Vikram Logistics and Maritime Services

Pvt. Ltd.,(VLMS) to M/s.Anuradha Holdings (P) Ltd., on account

of transfer of business as a going concern. The assessee claimed

exemption u/s 47(xiv) of the Act in respect of the above long

term capital gains. The AO declined to accept the claim of the

assessee with regard to the exemption u/s 47(xiv) of the Act

alleging that the shares held by the in VLMS were not business

assets and consequently the capital gains arising from transfer of

the above shares was not liable to be exempted u/s 47(xiv) of

the Act.

3. The same was challenged before the CIT(A) who

upheld the order of the AO and the assessee further appealed

before the Tribunal wherein the Tribunal had held that the same

is not exigible to tax. Against the same, the revenue preferred

an appeal before the Hon'ble High Court of Karnataka and the

Hon'ble High Court vide order dated 30/7/2014 confirmed the

order of the Tribunal. Meanwhile, while the assessee's appeal

was pending before the CIT(A), the assessee had made an

application u/s 154 of the Act stating that there was no transfer

of shares in the relevant assessment year 2009-10 though the

assessee had computed capital gains to seek exemption u/s ITA No.155/Bang/2013 Shri Vikram Viswanath.

Page 3 of 4 47(xiv) of the Act. According to the assessee, the transfer had

taken place in the next year i.e. on 3/2/2010 and stamp duty had

been paid on the same date proves that the transfer is in the

subsequent year. The assessee, therefore, sought rectification of

the order of the AO. The AO rejected the assessee's contention

against which the assessee preferred an appeal before the CIT(A)

who confirmed the order of the AO and the assessee is in second

appeal before us.

4. At the time of hearing, the learned counsel for the

assessee submitted that since the issue of exemption from

taxability of the long term capital gain has been decided in favour

of the assessee by the Hon'ble High Court of Karnataka and it

was held that the same is not chargeable to tax, the issue of year

of taxability has become infructuous. He, therefore, submitted

that the appeal before the Tribunal may be dismissed as

infructuous.

The learned Departmental Representative, however,

prayed that the appeal may be dismissed holding that the

application u/s 154 was not maintainable.

5. Having regard to the rival contentions and the material

on record, we find that the assessment completed u/s 143(3)

rejecting the exemption claimed by the assessee has been set

aside by the Hon'ble High Court. The issue of year of taxability

was not disputed before the AO during the assessment ITA No.155/Bang/2013 Shri Vikram Viswanath.

Page 4 of 4 proceedings u/s 143(3). It was only by the rectification

application that the assessee had prayed for consideration of the

year of taxability to be the next year. Since the original

assessment order itself has been set aside by the Hon'ble High

Court and it has been held that the capital gains is not

chargeable to tax, the issue of the year of taxability at this stage

would only be an academic issue. Therefore, in our opinion, this

appeal is infructuous at this stage.

6. In view of the same, the assessee's appeal is dismissed

as infructuous.

Pronounced in the open court on 20th of February, 2015.

sd/- sd/- (Abraham P George) (Smt. P.Madhavi Devi) ACCOUNTANT MEMBER JUDICIAL MEMBER eksrinivasulu

Copy to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT, Bangalore. 6. Guard file By order

Assistant Registrar Income-tax Appellate Tribunal Bangalore