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2016 (6) TMI 893 - BOMBAY HIGH COURT

2016 (6) TMI 893 - BOMBAY HIGH COURT - [2016] 384 ITR 498 - Validity of decision of tribunal based on its earlier decision - Revenue unable to show whether appeal against the earlier decision of the tribunal has been filed or not - Capital gain computation - date of the transfer of an asset to determine LTCG or STCG - whether the Tribunal was correct in concurring with the CIT(A) that only the date of the first holding i.e. the date of acquisition of shares as stock in trade and not the subseque .....

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ch the assessee in the earlier case has been treated. However, there could be valid reasons for the Revenue to take a different view in this case, then that taken in the earlier case, then the reasons for the same must be set out in the memo of appeal or at least before the hearing in an affidavit filed by the Officer of the Revenue before the Court. The State cannot act arbitrarily to pick and chose the orders from which appeals would be filed. - In the circumstances of the present case, we .....

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he appeal of revenue. - Income Tax Appeal No. 1812 of 2013 - Dated:- 13-10-2015 - M. S. Sanklecha And G. S. Kulkarni, JJ. For the Petitioner : Mr. Arvind Pinto For the Respondent : Ms. Vasanti Patel ORDER P. C. This is an appeal by the Revenue from the order dated 13th February, 2013 passed by the Income Tax Appellate Tribunal (Tribunal). The relevant Assessment Year is A. Y. 2004-05. 2. The Revenue urges the following questions of law for our consideration: "(a) Whether on the facts and in .....

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es of the case and in law, the Tribunal was correct in ignoring the fact that for the computation of capital gains, the date of the transfer of an asset is important to distinguish between long term and short term capital assets for the purposes of taxation"? 3. The appeal was heard for sometime on 29th September, 2015 when we passed the following order: "After the matter was heard for some time, it was noticed that the impugned order of the Tribunal has inter alia followed its decisio .....

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s that he has not been able to find out as to whether or not any appeal has been filed and seeks time to enquire about the same. 2. We have, on numerous occasions in various orders had observed that whenever the Tribunal has followed its own earlier order, then when an appeal is filed by the Revenue from a subsequent order (following its earlier order), then the appeal before this Court must set out whether or not an appeal has been filed against its earlier order and its fate. Moreover, if no a .....

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ounsel for the Revenue do not undertake this exercise. This exercise would not only expedite disposal but also ensure consistency and certainty. This is particularly so as if the appeal from the earlier order has been admitted/dismissed then the impugned order following the same would also require admission/dismissal. This would ensure consistency of approach and certainty of law to all concerned i.e. the officers of Revenue and the tax payers. We hope that henceforth the learned Counsel for the .....

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tment (P) Ltd. (supra), at his request, we adjourn the hearing. However, we make it clear that in case no appeal has been filed, an affidavit of the Officer concerned with the appeal would be filed indicating the reasons why the Revenue has chosen to file an appeal against the impugned order when the same merely follows / applies the earlier order of the Tribunal (Bright Star Investment (P) Ltd. (supra)) which has been accepted by the Revenue. 5. A copy of the affidavit which is to be filed by t .....

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ue which arose for the consideration before the Tribunal in Bright Star Investment (P) Ltd., (supra); (c) The learned Counsel appearing for the Revenue took time to find out whether or not any appeal has been filed in the case of Bright Star Investment (supra); (d) It was made clear that in case no appeal is filed to this Court in case of Bright Star Investment (supra), then the Officer concerned would file an affidavit. The affidavit of the Officer would indicate the reasons why the Revenue has .....

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ned Counsel appearing for the Revenue states that the Officers of the department are unable to inform him whether or not an appeal has been filed from the order in the Bright Star Investment (supra). We are unable to appreciate the above submission. The appeal, if any, filed in respect of Bright Star Investment (supra), would have been filed by the Income Tax Department. The Officer instructing Mr. Pinto are also a part of the Income Tax Department. The necessary information with regard to appea .....

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rther, it also does not wish to file any affidavit indicating reasons warranting filing of an appeal against the impugned order, when no appeal is filed against the earlier order. 6. However, Mr. Pinto, the learned Counsel appearing for the Revenue does not seek any further time to find out the exact position. However, he seeks to argue that the issues arising in Bright Star Investment (supra) is distinct/ different from that arising in this case. We pointed to him his statement as recorded in t .....

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le of Law is certainty of law and uniform application of law amongst all the assessees i.e. equal treatment. Thus, where the Tribunal has taken a view on a legal issue and the Revenue has in turn either accepted it or challenged it in a higher forum, then where a subsequent order of the Tribunal follows the earlier order of the Tribunal, then the assessee must be treated in the same manner in which the assessee in the earlier case has been treated. However, there could be valid reasons for the R .....

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n Ltd. 377 ITR 66, CIT v/s. SBI 375 ITR 20 and DIT v/s. Citi Bank 377 ITR 69) had emphasized the need for equal treatment at the hands of the State. In the circumstance, we had requested the State that in case the order being challenged before the Court has merely followed its earlier order and the Revenue has accepted the same by not filing an appeal, then the Officer concerned must justify the filing of the appeal in this case either in its appeal memo or by filing a separate affidavit. Howeve .....

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