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K Jayantilal Securities Pvt. Ltd. Versus Jt. CIT (OSD) , Mumbai

2018 (2) TMI 591 - ITAT MUMBAI

Levying Income Tax @ 30% on Short Term Capital Gains on sale of shares as against 10% u/s. 111A of the Act as claimed by the Appellant - additional evidence acceptance - Held that:- Assessee has actually paid the STT and the sale transaction took place after 1st October, 2004. However, the learned CIT-A has not at all considered this submission and has held that assessee has not filed any additional evidence. What sort of additional evidence learned CIT-A had in mind has not been spelt out. Asse .....

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ical purposes. - I.T.A. No. 4715/Mum/2017 - Dated:- 5-2-2018 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER For The Appellant : Shri Sanjay C. Shah For The Respondent : Ms. N. Hemalatha ORDER Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order by the Commissioner of Income Tax (Appeals) dated 05.05.2017 and pertains to the assessment year 2005- 06. 2. The grounds of appeal read as under: Learned ld. Commissioner of Income Tax (Appeals) erred in confirming the order of Lear .....

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nd any intimation or deemed intimation under sub-section (1) of section 143; (c) amend any intimation under sub-section (1) of section 200A; (d) amend any intimation under sub-section (1) of section 206CB. (1A) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that .....

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. (3) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee or the deductor or the collector], shall not be made under this section unless the authority concerned has given notice to the assessee or the deductor or the collector of its intention so to do and has allowed the assessee or the deductor or the collector a reasonable opportunity of being heard. (4) Where an amendment is made under this section, an order .....

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he deductor or the collector, the Assessing Officer shall serve on the assessee or the deductor or the collector, as the case may be a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be issued under section 156 and the provisions of this Act shall apply accordingly. (7) Save as otherwise provided in section 155 or sub-section (4) of section 186 no amendment under this section shall be made after the expiry of four years from the en .....

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amendment; or (b) refusing to allow the claim. 4. Before the learned CIT-A, the assessee submitted as under: 1. The learned Jt. Ld. Commissioner of Income Tax (OSD)-4(3), Mumbai, has erred in passing order u/s. 154 of the Income Tax Act, 1961 levying tax @ 30% on Short Term Capital Gain of ₹ 3,47,979/- instead of levying tax @ 10% u/s. 111A. The facts of the case are as follows: The Profit & Loss account for the year ended 31st March, 2005 of the appellant shows an amount of ₹ 3, .....

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n charged on sale of equity shares in a company, then short term capital gains thereon will be charged to tax @ 10%. Securities Transaction Tax came into effect from 1st October, 2004. Paragraph 1 of the Order u/s. 154 of the Income Tax Act, 1961 states that It has seen from the perusal of the record that the assessee paid taxes u/s. 111 of the I T Act on the Short Term Capital Gain. Section 111 of the IT Act is applicable only when STT has been paid. From the details filed determining disallowa .....

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rresponding contracts for sale of shares is attached herewith for your ready reference. Forum the contracts for sale of shares it can be seen that all sales are after 1st October, 2004 and securities transacton tax has been charged on all the transactions for sale of shares. In view of the above, and taking the facts and circumstances of the case into consdieraiton, the tax levied @ 30% be deleted and the short term capital gains u/s. 111A be taxed @ 10%. 5. Considering the above, the ld. Commis .....

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f the facts narrated by the A.O. in the order u/s. 154, the stand of the A.O. is upheld. 6. Against this order, the assessee is in appeal before the ITAT. 7. I have heard both the counsel and perused the records. It is clear that assessee has submitted before the ld. Commissioner of Income Tax (Appeals) that the assessee has actually paid the STT and the sale transaction took place after 1st October, 2004. However, the learned CIT-A has not at all considered this submission and has held that ass .....

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ing into account our observations as above and after giving the assessee proper opportunity of being heard. 8. The assessee has raised additional ground and made the following submissions: Learned Assessing Officer erred in passing order u/s 154 of the Act which is bad in law. Appellant submits that the said order is bad in law and deserves to be quashed. The order passed u/s 154 of the Act is bad in law for the following reasons:- 1. Statutory Notice u/s 154(3) dated:-10th Aug 2009 (copy enclos .....

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ved after the date of appointment specified in the notice making the notice infructuous and bad in law. 3. The issue rectified by passing an Order u/s 154 of the Act required examination of fresh material which is not permitted for passing an order u/s 154 of the Act as the said Order can be passed only from material available on record. Additional Grounds No. 2 raised by Appellant are in the nature of Question of law, which are arising from the facts which are already on record, and no new fact .....

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