The DCIT, Circle-2, Surat V. Dr. Neena Ashwinkumar Moses, Surat

ITA 151/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9302 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 02-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Assessment record

Judgement Text

ITA NO. 15 1 /AHD/201 3 & CO NO. 52/ AHD 201 3 ASSESSMENT Y EAR: 200 8 - 09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD C BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S S GODARA JM ] ITA NO . 15 1 /AHD/ 20 1 3 ASSESSMENT YEAR : 200 8 - 09 DY. COMMISSIONER OF INCOME TAX .. .APPELLANT CIRCLE - 2 , SURAT. VS. DR. NEENA ASHWINKUMAR MOSES .. . RESPONDENT ENAM NURSING HOME, 1 ST FLOOR, TAKSHASHILA APARTMENT, SURAT . [PA N: A AYPM 2015 K ] C.O. NO. 52/AHD/2013 (IN ITA NO . 151 /AHD/201 3 ) ASSESSMENT YEAR: 200 8 - 09 DR. NEENA ASHWINKUMAR MOSES .. .A PPELLANT ENAM NURSING HOME, 1 ST FLOOR, TAKSHASHILA APARTMENT, SURAT. [PA N: A AYPM 2015 K ] VS. DY. COMMISSIONER OF INCOME TAX .. . RESPONDENT CIRCLE - 2 , SURAT. APPEARANCES BY: LALA PHILIPS , FOR THE ASSESSING OFFICER R.N. VEPARI , FOR THE ASSESSE E D ATE OF CONCLUDING THE HEARING : MARCH 2 ND , 201 6 DATE OF PRONOUNCING THE ORDER : MARCH 3 RD , 201 6 O R D E R PER PRAMOD KUMAR , AM : 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 2 6 TH OCTOB ER, 201 2 , PASSED BY THE LD. CIT(A), FOR THE ASSESSMENT YEAR 200 8 - 0 9 , ON THE FOLLOWING GROUNDS : - ITA NO. 15 1 /AHD/201 3 & CO NO. 52/ AHD 201 3 ASSESSMENT Y EAR: 200 8 - 09 PAGE 2 OF 3 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. C IT(A) - I, SURAT HA S ERRED IN D IRECTING THE A.O. THAT SHARES WHICH ARE HELD FOR MORE T HAN A MONTH SHOULD BE TREATED AS INVESTMENT AND ON THEIR SALE, PROFIT SHALL BE CHARGEABLE UNDER THE HEAD SHORT TERM CAPITAL GAIN AND WHERE SHARES ARE HELD FOR LESS THAN A MONTH, GAINS THEM SHOULD BE TREATED AS PROFIT FROM BUSINESS INSPITE OF THE FACT T HAT THE ASSESSEE WAS FREQUENTLY DOING TRANSACTION ON A BUSINESS SCALE, WHICH THE ASSESSEE WAS NOT ABLE TO DENY WITH SATISFACTORY EVIDENCES. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT A) MAY BE SET - ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT . 2 . IN THE CROSS OBJECTION, THE ASSESSEE HAS RAISED THE FOLLOWING GRIEVANCE: - 1. ON THE FACTS AND C IRCUMSTANCES OF THE CASE AND AS PER LAW AND SINCE THE ASSESSEE HAS BEEN HOLDING SHARES AS INVESTMENT, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN RESTRICTING THE SHORT TERM CAPITAL GAIN ONLY IN RESPECT OF TRANSACTIONS WHICH HAVE TAKEN PLACE W HERE THE DIFFERENCE BETWEEN DATE OF PURCHASE AND DATE OF SALE IS MORE THAN THIRTY DAYS . 3 . LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE ISSUE IN APPEAL AND CROSS OBJECTION IS NOW COVERED, IN FAVOUR OF THE ASSESSEE, BY A CO - ORDINATE BENCH S DECISION IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2007 - 08 IN ITA NO. 701 /AHD/2011 & C.O. NO.81/AHD/2011 . VIDE THIS DECISION DATED 10 TH JULY, 2015 , THE TRIBUNAL HAS, INTER ALIA, OBSERVED AS FOLLOWS : - 6. WE COME TO FACTS OF THIS CASE. THERE IS NO DISPUTE THAT THE ASSESSEE'S MAIN VOCATION IS THAT OF A GYNECOLOGIST RUNNING A HOSPITAL. SHE HAS ENTERED INTO 175 TRANSACTIONS OF SALE/PURCHASE OF SHARES AND NOT SCRIPS AS NOTED BY THE AUTHORITIES BELOW. HER 89 TRANSACTIONS INVOLVE SHARES PURCHASED IN PRECEDING ASSESSME NT YEARS. THIS MEANS ONLY 86 PURCHASE OCCASIONS IN THE RELEVANT PREVIOUS YEAR. HOLDING PERIOD OF THE SHARES ALSO APPEARS TO BE FAVOURING HER. IT IS TO BE SEEN THAT 16 TRANSACTIONS HAVE HOLDING PERIOD OF LESS THAN 30 DAYS. AND 17 HAVE BEEN HELD FOR A TIME SPAN OF 30 TO 60 DAYS. IT IS EVIDENT THAT 128 TRANSACTIONS INVOLVE A TIME SPAN OF MORE THAN 100 DAYS. THE LAST PERCENTAGE COMES TO MORE THAN 70%. THERE IS NO DISPUTE THAT THE ASSESSEE HAS TREATED ALL THESE PURCHASES AS INVESTMENTS IN HER BOOKS. NO BORROW ED FUNDS HAVE BEEN USED. HER ASSESSMENT RECORD RIGHT FROM A.Y. ITA NO. 15 1 /AHD/201 3 & CO NO. 52/ AHD 201 3 ASSESSMENT Y EAR: 200 8 - 09 PAGE 3 OF 3 2002 - 03 TILL 2009 - 10 IS THAT OF AN INVESTOR. AND THAT TOO, IN SCRUTINY ASSESSMENTS. THE CASE FILE REVEALS THAT THE IMMEDIATE PRECEDING ASSESSMENT YEAR INVOLVED 262 TRANSACTIONS. WE FIND THAT TH E ASSESSEE'S 175 TRANSACTIONS INVOLVE ONLY 75 COMPANIES. WE TAKE INTO ACCOUNT ALL THESE FACTS AND HOLD THAT IN ABSENCE OF ANY COGENT EVIDENCE OF ADVENTURE IN THE NATURE OF TRADE FORTHCOMING FROM THE CASE FILE, THE ASSESSEE'S ENTIRE SUM OF RS.26,19,704/ - HA S TO BE TREATED AS SHORT TERM CAPITAL GAINS AND NOT BUSINESS INCOME REGARDLESS OF THE HOLDING PERIOD UPTO AND MORE THAN 30 DAYS. WE DEEM PROPER TO OBSERVE THAT BOTH PARTIES HAVE QUOTED CASE LAW IN FAVOUR OF THEIR RESPECTIVE STANDS. WE CONCLUDE THAT THIS IS A HIGHLY FACTUAL ISSUE WHICH REQUIRES A SUBJECTIVE APPRECIATION OF THE FACTS ON RECORD. THEREFORE, WE ARE NOT DISCUSSING DETAILS THEREOF THE IN OUR ORDER FOR THE SAKE OF BREVITY. THE ASSESSEE'S ARGUMENTS IN HER CROSS OBJECTION SUCCEED. THE REVENUE'S SOLE SUBSTANTIVE GROUND FAILS. THE ASSESSING OFFICER IS DIRECTED TO TREAT ASSESSEE'S SHARE PROFITS OF RS.26,19,704/ - AS SHORT TERM CAPITAL GAINS. THE REVENUE S APPEAL ITA NO.701/AHD/2011 IS DISMISSED. THE A SSESSEE S C.O. 81/AHD/2011 IS PARTLY ALLOWED. 4 . WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE CO - ORDINATE BENCH. RESPECTFULLY FOLLOWING THE TRIBUNAL S DECISION DATED 10 TH JULY, 201 5 , IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2007 - 08, WE DISMISS THE GRIEVANCE OF THE ASSESSING OFFICER AND ALLOW THE CROSS OBJECTION FILED BY THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSING OFFICER IS DISMISSED AND THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. P RONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF MARCH, 2 016 . SD/ - SD/ - S.S. GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) PBN/* DATED: THE 3 RD DAY OF MARCH, 201 6 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4 ) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD