Shri Rajesh K Agarwal, JAMNAGAR V. The Commissioner of Income Tax, JAMNAGAR

ITA 126/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0107 (ITAT-RAJKOT)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-07-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANKUR GARG
• Keywords: Business income; Corroborative evidences
• Section: 142(1); 263

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA, JM AND SHRI A. K.GARODIA, AM ITA NO.126/RJT/2012. / ASSESSMENT YEAR 2008-09 SHRI RAJESH K AGARWAL, C/O CHETAN AGARWAL & CO. CHARTERED ACCOUNTANT 601/602,SWAGAT COMPLEX, OPP.HOTEL REGENCY, PN MARG, JAMNAGAR PAN: ABUPA6690D ( / APPELLANT) VS. COMMISSIONER OF INCOME TAX, JAMNAGAR / RESPONDENT / ASSESSEE BY SHRI.CHETAN AGARWAL # / REVENUE BY SHRI ANKUR GARG & / DATE OF HEARING 25.7.2012 & / DATE OF PRONOUNCEMENT 03.8.2012 / / / / ORDER PER A. K.GARODIA, AM THIS ASSESSEES APPEAL IS DIRECTED AGAINST THE ORDER OF THE CIT, JAMNAGAR DATED 28.3.2012 PASSED BY HIM U/S 263 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2008-09. 2. ONLY GROUND RAISED BY THE ASSESSEE IN THIS APPEAL READ S AS UNDER : THE COMMISSIONER OF INCOME TAX HAD ERRED IN LAW AS WEL L AS ON FACT IN PASSING ORDER U/S 263 OF THE ACT. 3. BRIEF FACTS OF THE CASE AS NOTED FROM THE ORDER OF THE CIT IN THE IMPUGNED ORDER ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF INVESTMENT AND SHARE BROKING. HE HAS ALSO NOTED THAT THE ITA NO.126/RJT/2012. 2 ASSESSEE HAS FILED HIS RETURN OF INCOME FOR THIS YEAR ON 8 .10.2008 DECLARING TOTAL INCOME AT RS.10,91,420/-. HE HAS FU RTHER NOTED THAT DURING THIS YEAR, THE ASSESSEE HAS DISCLOSED GROSS RECEIPTS OF RS.3,0 1,063/- ONLY AGAINST WHICH IT HAS INCURRED A LOSS OF RS.30,166/- AN D HAS DECLARED SHORT TERM CAPITAL GAIN OF RS.11,21,587/- AND LONG T ERM CAPITAL GAIN OF RS.58,17,596/-. THEREAFTER, THE LD. CIT REPRODUCED THE SUMMARY OF SHARE TRANSACTIONS UNDERTAKEN BY THE ASSESSEE DURING THIS YEAR A T PAGES 1 TO 3 OF HIS ORDER. HE HAS NOTED 105 TRANSACTIONS IN RESPECT OF SHORT TERM CAPITAL GAIN OF RS.11,21,587/- AND 14 TRANSACTION IN R ESPECT OF LONG TERM CAPITAL GAIN OF RS.58,17,596/-. THEREAFTER, HE HAS NOTED IN PARAGRAPH NO.2 OF HIS ORDER THAT THE VOLUME OF TRANSACTIONS AND THE GAIN/LOSS SHOWN, IN THE TABLE REPRODUCED BY HIM CLEARLY POINTS OUT THAT THE TRANSACTIONS IN NO WAY CAN BE SAID TO BE FOR INVESTMENT PURPOSES. IT IS ALSO HIS OBSERVATION THAT HAD THEY BEEN FOR THE PURPOSE OF INV ESTMENT, THEN THE PERIOD OF HOLDING COULD HAVE BEEN MUCH LONGER. HE HAS FURTHER OBSERVED THAT IN THE PRESENT CASE, THE ASSESSEE HAS PURCHASED AND SOLD VARIOUS SCRIPTS WITHIN SHORT PERIODS OF THEIR HOLDING. HE ISSUE D SHOW CAUSE NOTICE TO THE ASSESSEE U/S 263 ON 16.2.2012 ASKING THE ASSESSEE TO SHOW CAUSE AS TO WHY THE LONG TERM CAPITAL GAINS AND SHORT TERM CAP ITAL GAINS SHOULD NOT BE TREATED AS BUSINESS INCOME CONSIDERING THE MAG NITUDE AND PERIOD OF HOLDING. THE ASSESSEE HAS FURNISHED REPLY TO HIM A ND THEREAFTER, THE LD. CIT HAS OBSERVED IN PARAGRAPH 3 OF HIS ORDER THA T ALL THE SHARES TRANSACTED DURING THE YEAR HAVE BEEN TABULATED BY HI M AND THE SAME WERE PURCHASED AND SOLD DURING THE YEAR ITSELF, PARTICUL ARLY, THE SCRIPTS FALLING IN STCG CATEGORY. THE AO IN THE QUESTIONNAIR E OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS NO WHERE RAISED THE I SSUE OF ITA NO.126/RJT/2012. 3 TREATING THE TRANSACTION AS BUSINESS INCOME. HE FURTHE R HELD THAT THE SUBMISSIONS OF THE ASSESSEE THAT THE AO HAS DECIDED THE ISSUE AFTER EXAMINATION OF ALL FACTS AND HAD SATISFIED HIMSELF D OES NOT HOLD GOOD GROUND AS NO SUCH SATISFACTION HAS BEEN RECORDED BY THE A O. THEREAFTER, HE HAS HELD IN PARAGRAPH 4 OF HIS ORDER THAT THE ASSESSM ENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND THERE WAS NO EXAMINATION BY THE AO AS TO WHETHER INCOME WAS OFFERE D BY THE ASSESSEE UNDER CORRECT HEAD. HE, THEREFORE, SET ASIDE THE ASSESSMENT ORDER AND RESTORED THE MATTER BACK TO THE FILE OF TH E AO WITH A DIRECTION TO VERIFY AND EXAMINE THE ISSUE RAISED IN THIS ORDER A ND COMPLETE THE ASSESSMENT AS PER LAW. NOW, THE ASSESSEE IS IN APPEAL BEFO RE US. 4. IT IS SUBMITTED BY THE LD.AR OF THE ASSESSEE BEFORE U S THAT DETAILED QUESTIONNAIRE WAS ISSUED BY THE AO TO THE ASSESSEE FOR WH ICH REPLY WAS ALSO FURNISHED TO THE AO AND THEREFORE, THE ISSUE WAS DECIDED BY THE AO AFTER EXAMINATION OF ALL ASPECTS AND LD.CIT CANNOT SUB STITUTE HIS VIEW IN PLACE OF VIEW TAKEN BY THE AO. HE DREW OUR ATTENTIO N TO PAGE 12 OF THE ASSESSEES PAPER BOOK AND SUBMITTED THAT IT IS A NOTICE ISSU ED BY THE AO U/S 142(1) ON 2.2.2010 AS PER WHICH HE ASKED THE ASSESSEE TO FURNISH DETAILED COMPUTATION OF INCOME GIVING HEAD WISE INCO ME. REGARDING PAGE 13 OF THE ASSESSEES PAPER BOOK, HE SUBMITTED THAT THIS IS QUESTIONNAIRE ISSUED BY THE AO ON 24.2.2010 AND AS P ER PARAGRAPH 3 AND 4 OF THIS QUESTIONNAIRE, THE ASSESSEE WAS ASKED TO SUB MIT DETAILS OF SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAINS I. E. CHART OF CAPITAL GAINS, DATES OF SALE AND PURCHASE, NECESSARY DOCUMENTARY P ROOF FOR PURCHASE AND SALE AND CORRESPONDING INVESTMENTS MADE WIT H SUPPORTING EVIDENCE. HE FURTHER SUBMITTED THAT AS PER PARAGRAPH 7 OF THE SAME, THE ITA NO.126/RJT/2012. 4 ASSESSEE WAS ASKED TO FURNISH DETAILS AND DOCUMENTARY EVIDENCE S IN RESPECT OF SHORT TERM CAPITAL GAIN (III A) OF RS.11,21 ,587/- HE AGAIN SUBMITTED THAT THE REPLY TO THE NOTICES IS AVAILABLE AT PAGES 14 TO 18 OF THE ASSESSEES PAPER BOOK AND THE CHART REPRODUCED BY THE CI T IN HIS ORDER IS THE REPLICA OF THE CHART SUBMITTED BY THE ASSESSEE BE FORE THE AO AS AVAILABLE AT PAGES 16 AND 18 OF THE PAPER BOOK. HE FURTHER SUBMITTED A CERTIFIED COPY OF THE ORDER SHEET IN THE ASSESSMENT FOL DER IN WHICH IT IS NOTED BY THE AO IN THE ORDER SHEET THAT THE AO HAD MADE INQUIRY AND ASKED THE ASSESSEE TO FURNISH DETAILS OF SHARES HELD BY HIM AS INVESTMENT AND TRADING. HE FURTHER SUBMITTED THAT IT IS ALSO N OTED BY THE AO IN THE ORDER SHEET THAT THE ASSESSEE HAS FURNISHED THE DETAILS OF INVESTMENT IN STOCK ETC AS INVESTMENT AND ALSO REGARDING TRADING AND TH EREFORE, IT CANNOT BE SAID THAT THIS ASPECT WAS NOT EXAMINED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HE PLACED RELIANCE ON THE DECI SION OF THE AMRITSAR BENCH OF THE TRIBUNAL RENDERED IN THE CASE O F SH. PARDEEP GUPTA PROP. VS. THE ASSTT. COMMR. OF INCOME TAX, IN ITA NO. 160 / ASR/2011 (AY-2006-07) DATED 30/04/2012. HE SUBMIT TED THAT THE FACTS OF THIS CASE ARE SIMILAR TO THAT OF THE FACTS OF THE P RESENT CASE AND IN THAT CASE, IT WAS HELD BY THE TRIBUNAL THAT THE ORDER PASSE D BY THE LD. CIT U/S 263L IS NOT PROPER AND THE SAME WAS QUASHED. HE HAS ALSO PLACED RELIANCE ON THE ORDER OF THE RAJKOT BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF ANTALA SANJAYKUMAR RAVJIBHAI V/S CIT IN ITA NO. 205/RJT/2008 (AY-2003-04) ORDER DATED 21.11.2011. HE SUBMITTED A COPY OF THIS ORDER OF THE TRIBUNAL. HE HAS ALSO P LACED RELIANCE ON THE JUDGMENT OF MUMBAI BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF ITA NO.126/RJT/2012. 5 TATA CHEMICAL LIMITED V. CIT IN ITA NO.3127/MUM/201 0 (AY-2005-06) DATED 30.6.2011. HE SUBMITTED THE COPY OF THIS ORDER OF THE TRIBUNAL. 5. ONE MORE CONTENTION WAS RAISED THAT IN THE PRESENT CASE, THE STAND OF THE CIT WAS SHIFTING AND FOR THIS REASONS ALSO, THE ORDER PASSED BY HIM SHOULD BE QUASHED. IN SUPPORT OF THIS CONTENT ION, HE PLACED RELIANCE ON THE JUDGMENT RENDERED IN THE CASES OF CI T V/S G K KABRA (75 TAXMAN 503) (AP), TATA CHEMICAL LIMITED V. CIT (2011 TAXPUB 1972), SYNERGY ENTERPRISE SALUTATION P LIMITED IN I TA NO.3076/MUM/2010 (MUM. TRIBUNAL) AND PEERLES GENERA L FINANCE & INVESTMENT CO.LTD. (96 TTJ 834). 6. ONE MORE CONTENTION WAS RAISED THAT CIT CANNOT REM IT THE MATTER BACK TO THE FILE OF THE AO FOR MAKING THE INQUIRY AND DECIDING THE ISSUE AND IN SUPPORT OF THIS CONTENTION, HE HAS PLACED RELIA NCE ON THE DECISION OF THE HONBLE DELHI HIGH COURT RENDERED IN THE C ASE OF ITO V/S DG HOUSING PROJECTS LIMITED (ITA NO.179/2011) DATED 1.3. 2012. THE COPY OF THE JUDGMENT OF THE HONBLE DELHI COURT IN THE CAS E OF DG HOUSING PROJECTS LIMITED IS FORMING THE PART OF THIS RECORD. AS AGAINST THIS, THE LD. DR SUPPORTED THE ORDER PASSED U/S 263 BY THE COMMISSIONER OF INCOME TAX. HE HAS PLACED RELIANCE ON THE TRIBUNAL DECISION IN THE CASE OF MAXPAK INVESTMENT LTD . VS . ACIT 104 TTJ ( DEL ) 881. REGARDING THE ACTION OF THE CIT OF REMITTING THE MATTER BACK TO THE FILE OF THE AO, HE SUBMITTED THAT NO INQUIRY WAS MADE BY THE AO AS TO WH Y INVESTMENT SHOULD NOT BE TREATED AS TRADING IN SHARES AND THEREF ORE THE CIT WAS JUSTIFIED TO ASSUME THE JURISDICTION U/S 263. HE SUBMIT TED THAT IT HAS BEEN HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF DG HOUSING PROJECTS ITA NO.126/RJT/2012. 6 LIMITED (SUPRA) THAT IN SOME CASES, POSSIBLY, THOUGH RARE LY, THE CIT CAN ALSO SHOW AND ESTABLISH THAT THE FACTS ON RECORD OR INFE RENCES DRAWN FROM FACTS ON RECORD PER SE JUSTIFIED AND MANDATED FURTHER ENQUIRY OR INVESTIGATION BUT THE ASSESSING OFFICER HAD ERRONEOUSLY N OT UNDERTAKEN THE SAME. HE SUBMITTED THAT THIS FINDING OF THE HONB LE DELHI HIGH COURT SUPPORTS THE CASE OF THE REVENUE. IN THE PRESENT CASE , THE AO HAD NOT MADE INQUIRY REGARDING THIS ASPECT AS TO WHETHER THE TRANSACTION OF THE ASSESSEE IN PURCHASE AND SALE OF SHARES IS FOR INVESTMENT PUR POSE OR FOR TRADING PURPOSE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE RECORD AVAILABLE BEFORE US, GONE THROUGH THE ORDERS OF AUTHO RITIES BELOW AND ALSO THE JUDGMENTS CITED BY BOTH THE PARTIES. AFTER CAREFULLY GOING THROUGH THE ORDER OF THE CIT PASSED U/S 263, WE FIND THAT TH E MAIN ALLEGATION IS THAT THE AO HAS NOT RAISED THE ISSUE OF TREATING THE T RANSACTIONS AS BUSINESS INCOME AND FOR THIS REASONS, HE HAS COME TO THE CON CLUSION THAT THE ASSESSMENT ORDER PASSED BY HIM IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. IN THE LIGHT OF THIS, WE EX AMINE THE APPLICABILITY OF THE VARIOUS JUDGMENTS CITED BY BOTH THE SIDES. THIS B ASIS ADOPTED BY THE CIT IS ON THIS PREMISE ALONE AS NOTED BY HIM IN PARA GRAPHS 2 AND 3 OF HIS ORDER THAT FROM THE VOLUME OF TRANSACTIONS AND THE GA IN/LOSS SHOWN IN THE TABLE ITSELF IT IS CLEAR THAT TRANSACTION IN NO WAY CAN BE SAID TO BE FOR INVESTMENT PURPOSE. HENCE, VOLUME OF TRANSACTION ALONE WAS THE BASIS ON WHICH THE CIT HAS STATED THAT TRANSACTION OF THE ASSESSEE ARE NOT FOR INVESTMENT PURPOSE BUT WERE FOR TRADING PURPOSES. ON TH IS ASPECT, THERE ARE VARIOUS JUDGMENTS INCLUDING THE JUDGMENT OF THE HO NBLE BOMBAY HIGH COURT IN THE CASE OF THE COMMISSIONER OF INCOME TAX VS. GOPAL PUROHIT. ITA NO.126/RJT/2012. 7 IN ITA NO.1121 OF 2009 ORDER DATED 6.1.2010 THAT M ERE VOLUME CANNOT BE A BASIS TO SAY THAT THE SHARE TRANSACTION ARE DURING THE COURSE OF BUSINESS AND NOT IN THE COURSE OF INVESTMENTS. THERE IS NO OTHER BASIS INDICATED BY THE CIT TO SAY THAT THE TRANSACTIONS OF SHA RE UNDERTAKEN BY THE ASSESSEE IS UNDERTAKEN DURING THE COURSE OF BUSINESS AND NOT DURING THE COURSE OF INVESTMENTS. THE CIT HAS NOT EVEN GIVEN A FINDING THAT THE TRANSACTIONS ARE BUSINESS TRANSACTION AND NOT FOR INVESTMENT PURPOSES. HE HAS SIMPLY RESTORED THE MATTER BACK TO THE AO FOR THE FRESH DECISION AFTER EXAMINING THE ISSUE AS TO WHETHER THE TRANSA CTIONS IN QUESTION ARE DURING THE COURSE OF BUSINESS OR DURING THE COURSE OF IN VESTMENT. WITHOUT GIVING ANY FINDING THAT THE TRANSACTIONS ARE DURING THE COURSE OF BUSINESS AND WITHOUT INDICATING ANY VALID BASIS FOR HOLDING THE ORDER TO BE ERRONEOUS OR ASSUMING SO, IN OUR CONSIDERED OPINION, THE CITS ORDER U/S 263 IS NOT JUSTIFIED BECAUSE HE COULD NOT ESTABLISH THA T THE ASSESSMENT ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. THIS IS BY NOW ESTABLISHED LEGAL POSITION TH AT IF A POSSIBLE VIEW IS TAKEN BY THE AO, THE CIT CANNOT SUBSTITUTE HIS O WN VIEW IN PLACE OF THE AOS VIEW WITHOUT ESTABLISHING THAT THE VIEW TAKE N BY THE AO IS IMPOSSIBLE VIEW OR THAT THE SAME IS ILLEGAL. IN THE PRESENT CASE, THE ONLY BASIS OF CITS SUSPICION/APPREHENSION THAT THE IMPUGNED T RANSACTION MADE ARE DURING THE COURSE OF BUSINESS IS THIS THAT THERE IS VERY HIGH VOLUME OF SHARES TRANSACTIONS BUT WE HAVE ALREADY NOT ED THAT AS PER THE JUDGMENT OF THE BOMBAY HIGH COURT IN THE CASE OF GO PAL PUROHIT (SUPRA), MERELY ON THE BASIS OF HIGH VOLUME OF TRANSACTION, IT CANNOT BE SUGGESTED THAT THE TRANSITION IN SHARES IS DURING THE COURSE OF BU SINESS AND NOT IN THE COURSE OF INVESTMENT. IN THE ABSENCE OF ANY OTHER BASI S HAVING BEEN ITA NO.126/RJT/2012. 8 INDICATED BY THE CIT IN HIS ORDER TO MERIT FURTHER INQUIRY AND TO SAY THAT THE VIEW ADOPTED BY THE AO IS NOT A POSSIBLE VIEW TH E ASSUMPTION OF JURISDICTION OF CIT U/S 263 IS NOT PROPER AND VALID. CONSIDERING THIS FACTS AND VARIOUS JUDGMENTS CITED BY THE LD.AR, WE ARE OF TH E CONSIDERED OPINION THAT THE ORDER PASSED BY THE CIT IN THE PRESEN T CASE U/S 263 IS NOT JUSTIFIED UNDER THE FACTS AND CIRCUMSTANCES OF THE PRESEN T CASE BECAUSE HE HAS FAILED TO ESTABLISH THAT THE VIEW ADOPTED BY THE AO IS ERRONEOUS OR IMPOSSIBLE VIEW. IN OUR CONSIDERED OPINION AND IN TH E FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT CANNOT ASSUME JURISDICTIO N U/S 263 AND THEREFORE, THE SAME IS LIABLE TO BE QUASHED. WE QUASH THE SAME. 8. REGARDING THE JUDGMENTS CITED BY THE LD DR HAVING BEEN RENDERED IN THE CASE OF MAXPAK INVESTMENT LTD (SUPRA), WE FIND THAT THIS JUDGMENT WAS CITED REGARDING THE ALTERNATIVE CONTENTION OF T HE ASSESSEE OF SHIFTING STAND OF THE CIT BUT WE HAVE NOT CONSIDERED THAT ASPECT AND WE HAVE DECIDED THE ISSUE ON THIS BASIS THAT THE CIT COULD N OT ESTABLISH THAT THE VIEW TAKEN BY THE AO IS IMPOSSIBLE VIEW AND THEREF ORE, HIS ORDER IS ERRONEOUS AND FOR THIS REASON, WE HAVE HELD THAT THE CIT CANNOT ASSUME JURISDICTION U/S 263 AND THEREFORE, THE DECISION CITED BY THE DR IS NOT APPLICABLE IN THE PRESENT CASE. 9. REGARDING THE DECISION RELIED UPON BY THE LD.DR O F HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF DG HOUSING PROJ ECTS LIMITED (SUPRA) IN SUPPORT OF REMITTING THE MATTER BACK TO THE AO BY C IT IN THE PRESENT CASE, WE FIND THAT IT IS ONLY NOT NOTED BY THE HONBL E DELHI HIGH COURT THAT IN SOME CASES POSSIBLY THOUGH RARELY, THE CIT CAN ALSO SHO W AND ESTABLISH THAT THE FACTS ON RECORD OR INFERENCES DRAWN FR OM FACTS ON RECORD ITA NO.126/RJT/2012. 9 PER SE JUSTIFIED AND MANDATED FURTHER ENQUIRY OR INVESTIGATI ON BUT THE ASSESSING OFFICER HAD ERRONEOUSLY NOT UNDERTAKEN THE SAME. BUT THE HONBLE DELHI HIGH COURT FURTHER NOTED THAT THE FI NDING OF THE CIT MUST BE UNAMBIGUOUS AND NOT DEBATABLE. IN THE PRESENT CASE, THIS CONDITION IS NOT SATISFIED BY THE CIT. THE FINDINGS OF THE CIT AR E NOT CLEAR AND UNAMBIGUOUS AND FREE OF DEBATE BECAUSE THE ONLY BASIS OF THE CIT IS HIGH VOLUME OF TRANSACTION UNDERTAKEN BY THE ASSESSEE AND THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT RENDERED IN THE C ASE OF GOPAL PUROHIT (SUPRA) SUPPORTS THE VIEW ADOPTED BY THE AO AND DOES NO T SUPPORT THE ALLEGATION OF CIT THAT IMPUGNED TRANSACTIONS CAN BE BU SINESS TRANSACTIONS. THE FINDINGS OF THE CIT IS NEITHER CLEAR NOR UNAMBIGUOUS AND IS ALSO DEBATABLE BECAUSE EVEN AFTER HIGH VOLUME OF TRANSACTION, THE PURPOSE OF SHARE TRANSACTION CAN BE INVESTMENT ALSO. WE ALSO FIND THAT WITH REGARD TO THE LONG TERM CAPITAL GAIN OF RS.52. 18 LAKHS, THE TRANSACTIONS ARE ONLY IN 10 SCRIPTS AND THERE ARE ONLY 14 TRANSACTIONS AND NONE OF THE SHARES WERE PURCHASED AND SOLD IN THE PRESE NT YEAR AND FOR THESE SHARES ALSO, THE CIT HAS RESTORED THE MATTER BACK T O THE FILE OF THE AO TO EXAMINE AND DECIDE AS TO WHETHER THESE SHARES AR E IN RESPECT OF BUSINESS OF SHARES OR INVESTMENT IN SHARES. IT CANNOT B E SAID THAT EVEN IF A PERSON IS DEALING IN SHARES HE CANNOT MAKE INVESTMENT IN SHARES. HE CAN DO BOTH ALSO AND HENCE, SIMPLY BECAUSE OF HIGH VOLU ME IN STGC SHARES FOR LTCG SHARES, EVEN DOUBTS CANNOT BE RAISED IN THE ABSENCE OF HIGH VOLUME. HENCE, IT IS CLEAR THAT THERE IS AM BIGUITY IN THE FINDING OF THE CIT AND THE FINDING OF THE CIT IS DEBATABLE AL SO AND THEREFORE, THE JUDGMENT OF THE HONBLE DELHI HIGH COURT DOES NOT SU PPORT THE CASE OF THE REVENUE RATHER IT SUPPORTS THE CASE OF THE ASSESSEE. ITA NO.126/RJT/2012. 10 10. AS PER THE ABOVE DISCUSSIONS, WE HAVE SEEN THAT NONE OF THE JUDGMENTS CITED BY THE LD.DR IS RENDERING ANY SUPPORT TO REVENUE WHEREAS THE VARIOUS JUDGMENTS CITED BY THE ASSESSEE ARE AP PLICABLE TO THE FACTS OF THE PRESENT CASE AND ARE HELPING THE CASE OF THE ASSESSEE, AND THEREFORE, WE HOLD THAT THE CIT DID NOT VALID LY ASSUME THE JURISDICTION U/S 263 AND THEREFORE, HIS ORDER IS QUASHED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD/- SD/- ( T. K. SHARMA) ( A. K.GARODIA) # /JUDICIAL MEMBER # / ACCOUNTANT MEMBER +/ ORDER DATE 03-08-2012. /RAJKOT SRL - - - - .- .- .- .- / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-, 2. / RESPONDENT- 3. 4 / CONCERNED CIT. 4. 4- / CIT (A). 5. - , , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.