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Safset Forwarders Pvt. Ltd. Versus Income Tax Officer

2016 (6) TMI 941 - ITAT MUMBAI

Short Term Capital Gains (STCG) on sale of equity shares on which STT was paid - amount taxed twice as the assessee has wrongly showed the income from business by wrongly including the STCG in the profit and loss account and also showing it under the head capital gains (others) instead of under the head short term capital gain u/s 111A - Held that:- We find that the assessee has income from business of ₹ 2,93,474/- and the income from STCG from sale of equity shares which are covered under .....

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shares on which STT was paid which was liable for tax at the rate of 10% was wrongly shown under the head STCG (others), thereby offering the tax at the rate of 30%. - Since the assessee has wrongly returned the income under the wrong heads and also at wrong rate of tax it is an apparent mistake on the face of record which should have been rectified by the authorities below upon being pointed out by the assessee. However, the submissions of the assessee did not find favour with the Income T .....

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A. We direct the AO to assess the STT at the rate of 10% as the STT was paid on the sale of shares. - Decided in favour of assessee - I.T.A. No. 5222/Mum/2013 - Dated:- 22-6-2016 - Shri Shailendra Kumar Yadav, JM And Shri Rajesh Kumar, AM For the Assessee : Shri Rashmikant C Modi For the Revenue : Shri Vinod Kumar ORDER Per Rajesh Kumar, A. M This is an appeal filed by the assessee and it is directed against the order dated 6.3.2013 passed by ld.CIT(A)-7, Mumbai, and it relates to the assessment .....

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d capital gains (others) instead of under the head short term capital gain u/s 111A. 3. Facts in brief are that the assessee filed its return of income on 29.9.2008 declaring total income at ₹ 48,16,530/- wrongly. The assessee strongly showed its income under the head business of ₹ 25,55,002/- instead of ₹ 2,93,474/- by wrongly including STCG on sale of equity shares covered by section 111A of the Act in the business income. Secondly, the assessee wrongly returned the income of .....

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are covered u/s 111A of the Act and liable for tax at the rate of 10% under the head STCG from other assets thereby taxing the said STCG at the rate of 30% instead of 10%. Aggrieved by the order of AO, the assessee preferred an appeal before the ld.CIT(A). Thereafter the assessee wanted to file revision petition u/s 264 of the Act to the Commissioner of Income Tax for revising the assessment on the ground that STCG has wrongly been assessed as income from business and also as STCG from other as .....

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e, the appellant is not allowed to withdraw the appeal. As it is evident that return of income was accepted by the department and the AO. has .not pointed out any defect in the return of income, hence in my considered view the A.O. was completely justified in, passing the order u/s 143(1)(a) of the IT Act, 1961. It is pertinent to note here that the legislation has specifically provided the provisions of revised return by which any inadvertent mistake can be revised, however of!. this pretext al .....

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der it proper and appropriate to hold that the A.O. was completely justified in passing, the order -U/S 143(1)(a) of the Act. Accordingly the appellant's appeal is dismissed & the appellant's request for withdrawal of appeal is rejected. 4. The ld. Counsel vehemently argued before us that this being mistake apparent from the face of record which has been brought to the notice of lower authorities that the income from STCG on sale of equity shares on which STT paid was wrongly assesse .....

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e STT was duly paid at the rate of 30% two times. Firstly, by way of showing the same under the head Income from business and secondly, by showing the STCG from the other assets under head capital gain instead of showing the same as STCG on sale of shares under the provisions of section 111A. The ld. Counsel finally argued that this being the actual fact and mistake apparent on the face of record, both authorities below ignored this mistake and treated it as income and taxed which amounted to do .....

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of 10%. 5. On the contrary, the ld. DR objected to the submissions of the ld.AR and fairly agreed that the mistake committed by the assessee in filling the return two times and as a result the income was taxed at the rate of 30% whereas as a matter of fact, the income from business ₹ 2,93,474/- was to be taxed at the rate of 30% and ₹ 22,61,528/- was to be taxed at the rate of 10% being short term capital gain on sale of equity shares. However, the ld.DR disagreed with the submissio .....

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