2019 (1) TMI 394

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....l income of Rs. 1,63,230/-. In the assessment completed originally u/s 143(3) vide an order dated 26.12.2007, the total income of the assessee was determined by the AO at Rs. 10,84,370/- after making addition inter alia on account of short term capital gain amounting to Rs. 6,97,716/- and tax @ 10% was calculated on such short term capital gain as per section 111A of the Act. Against the order passed by the AO u/s 143(3), an appeal was filed by the assessee before the Ld. CIT(A) who disposed of the same by an ex-parte order dated 17.06.2009 giving a part relief to the assessee. There was however no relief given by the Ld. CIT(A) on the issue of addition made on account of short term capital gain and accordingly the AO vide an order dated 19....

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..../- vide order u/s 251 dated 13.07.2016 and subjected to special rate of @ 10% as also duly pointed out vide my letter to AO dated 11.07.2016. ii. That paying no heed to my submission the AO passed on order u/s 251 dated 13.07.2016 on correct income of Rs. 5,07,080/- but without applying section 111A, wrongly going beyond the powers to rectify a mistake, if any, which is otherwise barred by limitation and also is a debatable matter of change of opinion, outside the purview of section 154. iii. That in the order passed u/s 143(3), short term capital gain was added back and tax was computed on the entire STCG by application of section 111A and such application was applied in all subsequent orders. iv. That now sudden....

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....mission regarding the tax rate applicable quoting the section of the I.T. Act and you mentioned in your petition the application of the section 111A of the I.T. Act, 1961. v. Section 111A(1)(a) of the I.T. Act, 1961 reads as under: 'the transaction of sale of such equity share or unit is entered into on or after the date on which Chapter VII of the Finance (No. 2) Act, 2004 comes into force; and' The date is 01.10.2004. Therefore, the rate @ 10% is applicable if the transaction of sale of such equity shares or units occurred on or after 01.10.2004. vi. Here, in your case, the sale of all the shares out of which STCG arising were sold during the month of July, 2004. vii. Therefore, the applicability of ....

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....l. 5. I have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that the Assessing Officer in the order originally passed u/s 143(3) vide an order dated 26.12.2007 had made the addition of Rs. 6,97,716/- on account of short term capital gain and tax thereon was calculated by him @ 10% by applying section 111A of the Act. As submitted by the learned counsel for the assessee, only the quantum of addition made on account short term capital gain was disputed by the assessee in the appeal filed before the Ld. CIT(A) as well as the Tribunal and the tax rate of 10% charged by the A.O. on such short term capital gain by applying section 111A was never in dispute at any stage either be....