ACIT 2(3), MUMBAI V. RHYTHM HOUSE P.LTD, MUMBAI

ITA 1102/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1927 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 11-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-02-2013
• Court: TRIBUNAL
• Assessee Lawyers: HARI S RAHEJA
• Keywords: Business income
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.5989/MUM/2013 ASSESSMENT YEAR: 2010-11 ITO 16 ( 2 ) (1) R.NO.22, MATRU MANDIR, TARGEO RD. MUMBAI -400007 / VS. NIRJARA CHINUBHAI SHAH, FLAT NO.9A, SHANAZ, 90, NEPEANSEA ROAD, MUMBAI 400006 (REVENUE) (RESPONDENT) P.A. NO. AACPS8288C REVENUE BY SHRI SANTOSH MAN KOSKAR (DR) RESPONDENT BY SHRI HARI S. RAHEJA (AR) !' / DATE OF HEARING : 24/11/2015 !' / DATE OF ORDER: 18/12/2015 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AG AINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEAL S)-27, MUMBAI {(IN SHORT CIT(A)}, DATED 26.07.2013 FOR T HE NIRJARA CHINUBHAI SHAH 2 ASSESSMENT YEAR 2010-11, PASSED AGAINST THE ASSESSM ENT ORDER PASSED BY THE ASSESSING OFFICER (IN SHORT AO ) U/S 143(3) OF THE ACT. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI HARI S. RAHEJA, AUTHORISED REPRESENTATIVE (AR) ON BEHALF OF THE ASSESSEE AND BY SHRI SANTOSH MANKOSKAR, DEPARTMENTAL REPRESENTATIVE (DR) ON BEHALF OF THE R EVENUE. 3. THE ONLY ISSUE RAISED IN THE APPEAL IS THAT THE RE VENUE IS AGGRIEVED WITH THE ACTION OF LD. CIT(A), IN TREATIN G THE TRANSACTION OF PURCHASE AND SALE OF SHARES AS SHORT TERM CAPITAL GAIN INSTEAD OF BUSINESS INCOME.' 3.1. DURING THE COURSE OF HEARING THE LD. DR SUPPORTED THE ORDER OF AO. 3.2. ON THE OTHER HAND, LD. COUNSEL HAS SUBMITTED THAT L ONG TERM CAPITAL LOSS SHOWN BY THE ASSESSEE HAS BEEN AC CEPTED AS IT IS WHEREAS SHORT TERM CAPITAL GAIN HAS BEEN TREA TED AS BUSINESS INCOME. IT WAS FURTHER SUBMITTED THAT LD. CIT(A) HAS GIVEN WELL REASONED FINDINGS AFTER CONSIDERING PAST HISTORY OF THE ASSESSEE AND RIGHTLY HELD THAT IMPUGNED INCOME WAS ASSESSABLE AS INCOME UNDER THE HEAD OF CAPITAL GAIN S. 3.3. THE RELIANCE WAS ALSO PLACED ON THE ORDER OF THE TR IBUNAL IN THE CASE OF MISS PINAL J. MEHTA (ITA NO.5988/MUM /2013 ORDER DATED 17.08.2015). NIRJARA CHINUBHAI SHAH 3 3.4. WE HAVE GONE THROUGH THE ORDERS OF LOWER AUTHORITIE S. IT IS NOTED BY US THAT THIS ISSUE HAS BEEN ADDRESSED BY T HE LD. CIT(A) AFTER CONSIDERING THE FACTS OF THE CASE AND LAW AVAILABLE AS ON DATE. THE RELEVANT FINDINGS OF LD. CIT(A) IS REPRODUCED BELOW. 2.4.5. FROM THE DETAILS SUBMITTED, I FIND THAT THE NUMBER OF DAYS IN WHICH TRANSACTIONS HAVE TAKEN PLACE PER MON TH ARE AS UNDER: NO. OF DAYS TRANSACTED PER MONTH MONTH ACQUISITION TRANSFER TOTAL APRIL 2009 8 7 15 MAY 2009 12 7 19 JUNE 2009 14 7 21 J U L Y 2 0 0 9 9 6 15 AUGUST 2009 9 6 15 SEPTEMBER 2009 14 6 20 OCTOBER 2009 9 4 13 NOVEMBER 2009 0 5 5 DECEMBER 2009 2 1 3 JANUARY, 2010 12 2 14 FEBRUARY 2010 6 7 13 MARCH 2010 14 6 20 TOTAL 173 2.4.6. ON CALLING FOR THE DETAILS OF STCG AND LTCG/ LTCL OF THE APPELLANT IN THE BEST FIVE TO SIX YEARS, THE FOLLOWING DATA HAS BEEN FURNISHED. DETAILS OF CAPITAL GAINS/LOSS FOR NIRJARA C. SHAH NIRJARA CHINUBHAI SHAH 4 SR N. PARTICULARS A.Y. 2005-06 A.Y. 2006- 07 A.Y. 2007- 08 A.Y. 2008- 09 A.Y. 2009- 10 A.Y. 2010-11 A.Y. 2011-12 1 STCG/(STCL) EARNED 111789 343077 140790 909487 - 328389 5 3679262 -851421 2 LTCG/(LTGL) EARNED 243699 752925 -35908 - 377560 360830 7 -219054 202761 2.4.7 ON PERUSAL OF THE SAME, I FIND THAT THE APPEL LANT HAS CONSISTENTLY SHOWN STCGISTCL AS WELL AS LTCG/LTCL IN ALL THESE YEARS. IN FACT, THE LTCG EAR NED BY THE APPELLANT FROM A.Y.2005-06 TO 2011-12 IS OVE R Z45 LAKHS WHICH IN ITSELF SUGGESTS THAT THE APPELLANT H AS BEEN A LONG TERM INVESTOR IN SHARES AND HENCE, HER CASE IS SQUARELY COVERED BY THE CBDT INSTRUCTION NO.4/2007 DATED 15.06.2007 ON THE SUBJECT. I ALSO FIND THAT IN THIS CASE, RATIO OF HON'BLE HIGH COURT IN THE CASE OF GOAL PUROHIT (2009) 188 TAXMAN 140 (BORN) I S SQUARELY APPLICABLE, AS IN THAT CASE, THE HONBLE HI GH COURT, ON THE BASIS OF THE FINDINGS OF THE TRIBUNAL THAT THE APPELLANT HAD BOTH LTCG AND STCG, HELD THAT THERE OUGHT TO BE UNIFORMITY IN TREATMENT AND CONSISTENCY WHEN THE FACTS AND CIRCUMSTANCES ARE IDENTICAL. 2.4.8 IN VIEW OF THE ABOVE FACTUAL AND LEGAL ANALYSIS AND THE BINDING DECISIONS OF THE JURISDICTIONAL HIGH GOUT AND HONBLE ITAT THE GROUND NO.2 IS ALLOWED IN FAVOUR OF THE APPELLANT. NIRJARA CHINUBHAI SHAH 5 3.5. FROM THE ABOVE, IT IS NOTED BY US THAT PAST HISTOR Y OF THE ASSESSEE IS IN ITS FAVOUR. IN THE EARLIER YEARS, SI MILAR INCOME HAS BEEN TREATED AS INCOME FROM THE CAPITAL GAIN. E VEN DURING THE YEAR UNDER CONSIDERATION, LONG TERM CAPITAL LOS S SHOWN BY THE ASSESSEE HAS BEEN ACCEPTED AS SUCH. WE FURTHER FIND THAT ANALYSIS MADE BY THE LD. CIT(A) AND REASONING GIVEN BY HIM WHILE TREATING IMPUGNED INCOME AS INCOME FROM CAPIT AL GAIN IS IN ACCORDANCE WITH LAW AND FACTS. NO, INTERFERENCE IS CALLED FOR THEREIN. WE FURTHER FIND THAT THE TRIBUNAL HAS TREA TED SIMILAR INCOME AS INCOME FROM CAPITAL GAIN IN THE CASE OF S ISTER OF THE ASSESSEE NAMELY MISS PINAL J. MEHTA(SUPRA) VIDE ITS ORDER DATED 17.08.2015. IN VIEW OF THESE FACTS AND CIRCUM STANCES OF THIS CASE, WE FIND NO FORCE IN THE GROUND RAISED BY THE REVENUE. THE ORDER OF LD. CIT(A) IS UPHELD AND GROU NDS RAISED BY THE REVENUE IS DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2015. SD/- (SANJAY GARG ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER MUMBAI; $ DATED : 18/12/2015 CTX? P.S/. .. NIRJARA CHINUBHAI SHAH 6 #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. &'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. +! + , ( & ) / THE CIT, MUMBAI. 4. +! + , / CIT(A)- , MUMBAI 5. /0 )12 , +! &' 12!3 , / DR, ITAT, MUMBAI 6. 4 / GUARD FILE. / BY ORDER, */& ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI