DCIT,Circle-7, Kolkata, Kolkata V. M/s. Indian Financial Journals(P)Ltd, Kolkata

ITA 1033/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8025 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2012
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-07-2012
• Court: TRIBUNAL
• Department Lawyers: A K MAHAPATRA
• Assessee Lawyers: M SATNALIWALA
• Keywords: Business income
• Section: 143(3)

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND ! ' ! , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] # # # # / I.T.A NO. 1033/KOL/2012 '$% &' '$% &' '$% &' '$% &'/ // / ASSESSMENT YEAR: 2008-09 DEPUTY COMMISSIONER OF INCOME-TAX, VS. M/S. INDIA N FINANCIAL JOURNALS (P) LTD. CIRCLE-7, KOLKATA. (PAN: AAACI5976J) ()* /APPELLANT ) (+)*/ RESPONDENT ) DATE OF HEARING: 14.11.2012 DATE OF PRONOUNCEMENT: 14.11.2012 FOR THE APPELLANT: SHRI A. K. MAHAPATRA, CIT (DR) FOR THE RESPONDENT: SHRI M. SATNALIWALA, FCA , / ORDER PER MAHAVIR SINGH, JM ( ! ' ! ! ' ! ! ' ! ! ' !, , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-VIII, KOLKATA IN APPEAL NO.162/CIT(A)-VIII/KOL/2010-11 DATED 30.04.2012. AS SESSMENT WAS FRAMED BY DCIT, CIR-7, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008-09 VIDE HIS ORDER DATED 31.12. 2010. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) IN HOLDING THE PROFIT ARISING FROM TRANSACTIONS IN SHARES AND SECU RITIES AS SHORT TERM CAPITAL GAIN AS AGAINST THE ASSESSMENT MADE BY AO UNDER THE HEAD BUSINESS INCOM E. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.1: 1. THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE A ND IN LAW LD. CIT(APPEAL) WAS NOT JUSTIFIED IN HOLDING THAT THE AMOUNT OF RS.1,31,87, 107/- ARISING FROM TRANSACTIONS IN SHARES AND SECURITIES WAS TAXABLE AS SHORT TERM CAPITAL GA INS RATHER THAN BUSINESS INCOME. 3. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDIN GS FROM THE DETAILS OF TRANSACTIONS OF SALES AND PURCHASE OF SHARES AS WELL AS MUTUAL FUND S NOTED THAT THE COMPANY HAD FREQUENTLY PURCHASED AND SOLD MUTUAL FUNDS AND SHARES DURING T HE YEAR UNDER CONSIDERATION AND ACCORDING TO HIM, INCOME FROM SALE OF MUTUAL FUNDS AND SHARES IS BUSINESS INCOME. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). BEFORE CIT(A) ASSE SSEE FILED DETAILS I.E. STATEMENT OF SHORT TERM CAPITAL GAIN/LOSS WITH STT FOR THE FY 2007-08 RELEVANT TO AY 2008-09, THE YEAR UNDER CONSIDERATION BUT CIT(A) WITHOUT GOING INTO THE DET AILS AND WITHOUT GOING INTO THE FACTUAL 2 ITA 1033/K/2012 M/S.INDIAN FINANCIAL JOURNALS (P) LTD.. A.Y.08-09 TRANSACTIONS, DECIDED THE ISSUE ONLY ON THE BASIS O F PRINCIPLES LAID DOWN BY VARIOUS COURTS. EVEN NOW BEFORE US, ASSESSEE HAS FILED COMPLETE DET AILS OF TRANSACTIONS REGARDING SALE AND PURCHASE OF SHARES AND MUTUAL FUNDS ALONG WITH STT INCURRED ON THE SAME IN ASSESSEES PAPER BOOK AT PAGES 25 TO 31. SINCE THESE DETAILS ARE NE ITHER DISCUSSED BY AO NOR BY CIT(A), WE CANNOT VERIFY THE SAME AT THIS STAGE I.E. THE DATES OF PURCHASE, AMOUNTS AND SCRIP ETC. HENCE, WE HAVE NO ALTERNATIVE EXCEPT TO SET ASIDE THIS ISSUE TO THE FILE OF CIT(A). THE CIT(A) WILL GO INTO THE DETAILS AS FILED BEFORE US AND WILL MAKE ENQUIR IES IN RESPECT TO THE DATE OF TRANSACTIONS AND GIVE HIS FINDING WHETHER THIS IS A SHORT TERM CAPIT AL GAIN OR BUSINESS INCOME. THE CIT(A) WILL ALSO DECIDE WHETHER THE PARTICULAR TRANSACTION IS A RISING OUT OF INVESTMENT OR TRADING. NEEDLESS TO SAY, CIT(A) CAN SEEK REMAND REPORT FROM AO, IF H E FEELS NECESSARY. REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- , ! ' ! ! ' ! ! ' ! ! ' ! , (PRAMOD KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( - - - -) )) ) DATED : 14TH NOVEMBER, 2012 ./ '$01 '2 JD.(SR.P.S.) 3 ITA 1033/K/2012 M/S.INDIAN FINANCIAL JOURNALS (P) LTD.. A.Y.08-09 , 3 ''4 54&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT DCIT, CIRCLE-7, KOLKATA. 2 +)* / RESPONDENT M/S. INDIAN FINANCIAL JOURNALS (P) L TD. 6/2, MOIRA STREET, KOLKATA-700 017. 3 . ',$ ( )/ THE CIT(A), KOLKATA 4. ',$ / CIT, KOLKATA 5 . ='> '$ / DR, KOLKATA BENCHES, KOLKATA +4 '/ TRUE COPY, ,$/ BY ORDER, ! 1 /ASSTT. REGISTRAR .