2014 (6) TMI 331 - AT - Income Tax

Rectification of mistake - Assessee treated as share trader Held that - Following Tata Communication Ltd V/s JCIT 2009 (7) TMI 169 - ITAT BOMBAY-G - when the question was pending before the High Court, it was not right for the assessee to agitate the same or part thereof before the Tribunal by way of Misc. Application thus, the present Misc. Application filed by the assessee is liable to be rejected Decided against Assessee.

Summary

Issues:
Rectification of mistake alleged in the order of Tribunal dated 30.6.2010 regarding the assessment of income from delivery based sales and purchases of shares as business income or Short Term Capital Gain (STCG).

Analysis:
The Miscellaneous Application sought rectification of a mistake in the Tribunal's order dated 30.6.2010 concerning the classification of income from delivery based sales and purchases of shares. The main issue revolved around whether the income should be treated as business income, as asserted by the Assessing Officer (AO), or as Short Term Capital Gain (STCG), as declared by the assessee. The Tribunal had initially held that the transactions of shares were conducted as a trader, leading to the income being taxable as business income. The assessee contended that the turnover figures considered by the Tribunal were factually incorrect, resulting in an erroneous decision. The assessee argued that this mistake was apparent from the record and requested the order to be recalled.

The Departmental Representative (DR) opposed the rectification, stating that the Tribunal's decision was well-reasoned and based on all relevant facts. The DR argued that there was no apparent mistake in the order. Both parties were asked about the appeal status against the Tribunal's order, and it was confirmed that the assessee had filed an appeal, which was admitted by the Bombay High Court. One substantial question of law raised in the appeal was whether the Tribunal was correct in treating the appellant as a trader and not an investor in shares.

Considering precedents like Tata Communication Ltd V/s JCIT and CIT V/s Muni Seva Ashram, the Tribunal rejected the Miscellaneous Application. It was noted that when a question was pending before the High Court, it was not appropriate for the assessee to raise the same issue before the Tribunal through a Miscellaneous Application. Citing the decision in the case of Muni Seva Ashram, the Tribunal concluded that the assessee's appeal against the order had already been admitted by the High Court, making the Miscellaneous Application redundant. Therefore, the Tribunal dismissed the assessee's application.

In conclusion, the Tribunal dismissed the Miscellaneous Application filed by the assessee, citing precedents and the admission of the appeal by the High Court as reasons for rejection.