The DCIT, Circle-3(3), Ahmedabad V. Shri Vijay Aasumal Keshwani, Ahmedabad

ITA 1946/AHD/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5277 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 27-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: G C PIPARA
• Keywords: Capital asset; Business income
• Section: 143(3); 133(6); 28

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO. 1946/AHD/2016 ( ASSESSMENT YEAR : 2013-14) DEPUTY COMMISSIONER OF INCOME TAX CIRCLE- 3(3), AHMEDABAD / VS. SHRI VIJAY AASUMAL KESHWANI 304, AMBIENCE TOWER, NR. JUDGES BUNGLOWS, BODAKDEV, AHMEDABAD 380054 ./ ./ PAN/GIR NO. : ADGPK5207Q ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S. K. DEV, SR. D.R. / RESPONDENT BY : SHRI G. C. PIPARA, A.R. DATE OF HEARING 01/11/2018 !'# / DATE OF PRONOUNCEMENT 29/01/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF IN COME TAX (APPEALS)-3, AHMEDABAD (CIT(A) IN SHORT), DATED 2 3.05.2016 ARISING IN THE ASSESSMENT ORDER DATED 29.02.2016 PASSED BY THE ASSESSING OFFICER (AO) UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING ASSESSMENT YEAR 2013-14. ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 2 - 2. AS PER ITS GROUND OF APPEAL, THE REVENUE HAS IM PUGNED THE ACTION OF THE CIT(A) IN ACCEPTING PROFITS OF RS.1,7 5,77,642/- ARISING ON SALE OF SHARES TO BE SHORT TERM CAPITAL GAIN A S CLAIMED BY THE ASSESSEE INSTEAD OF BUSINESS INCOME AS HELD BY TH E AO. 3. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL, FIL ED HIS RETURN OF INCOME FOR AY 2013-14 DECLARING TOTAL INCOME AT RS. 1,90,32,360/-. THE CASE WAS SUBJECTED TO SCRUTINY ASSESSMENT. IN THE COURSE OF THE SCRUTINY ASSESSMENT, THE AO INTER ALIA NOTICED THAT THE ASSESSEE HAS DECLARED PROFITS ARISING ON PURCHASE AND SALE OF CE RTAIN SHARES AND SECURITIES AMOUNTING TO RS.1,75,77,642/- UNDER THE HEAD CAPITAL GAINS AS SHORT TERM CAPITAL GAINS. THE AO MADE CERTAIN INQUIRIES UNDER S.133(6) OF THE ACT WITH THE CONCERNED BROKER NAMEL Y AMRAPALI CAPITAL & FINANCE SERVICES LTD. AND FOUND THAT THE SHARES TOWARDS PURCHASES ON BEHALF OF THE ASSESSEE WERE LYING IN T HE POOL ACCOUNT (COMMON ACCOUNTS OF ALL CLIENTS) OF THE BROKER PEND ING DELIVERY TO THE ACCOUNT OF THE ASSESSEE. THE SHARES WERE MEANWHILE SOLD AND THE DELIVERY THEREOF WAS GIVEN ON BEHALF OF THE ASSESSE E OUT OF CLIENTS POOL ACCOUNT. THE CONTRACT NOTE AND THE LEDGER ACC OUNT WERE ALSO VERIFIED. THE AO OBSERVED THAT HIGH VOLUME AND REG ULAR FREQUENCY OF TRANSACTIONS WOULD CLEARLY SUGGEST THAT THE ASSESSE E WAS INDULGING IN A REGULAR AND A SYSTEMATIC ACTIVITY OF PURCHASE AND S ALE OF SHARES WHICH TANTAMOUNTS TO BUSINESS ACTIVITY. THE AO FURTHER O BSERVED THAT THE ASSESSEE HAS NOT ACTUALLY MADE ANY WORTHWHILE PAYME NTS TO THE BROKER AGAINST THE PURCHASE MADE. THE SHARES LYING IN THE POOL ACCOUNT WERE ULTIMATELY SOLD AND THE PAYMENTS OBLIGATIONS WERE A CTUALLY MET AGAINST THE SALE PROCEEDS OF THE SHARES HELD IN THE POOL AC COUNT. CONSEQUENTLY, THE ASSESSEE PRIMARILY RECEIVED THE D IFFERENTIAL AMOUNT OF PROFITS TO ITS CREDITS WITHOUT INCURRING OR MAKI NG PAYMENT TO THE BROKERS AGAINST THE PURCHASES MADE. THE AO THUS OB SERVED THAT THE ASSESSEE HAS NEITHER TAKEN DELIVERY NOR MADE PAYMEN T TOWARDS ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 3 - PURCHASES OF SHARES. THE SHARES WERE FOUND TO BE H ELD FOR A VERY BRIEF PERIOD IN THE POOL ACCOUNT AND RESOLD IN THE MARKET . THE GAIN ARISING FROM WHICH IS IN THE NATURE OF BUSINESS ACTIVITY. THE AO ALSO OBSERVED THAT THE PURCHASE VALUE OF THE SHARES IS S UBSTANTIAL AND HUGE COUPLED WITH CONTINUITY, FREQUENCY AND MAGNITUDE OF TRANSACTIONS INVOLVED. THE AO THUS DISCARDED THE CLAIM OF THE A SSESSEE THAT THE OBJECT OF THE PURCHASES MADE IN THE SHARES WERE CAP ITAL ACCRETION AND TO ENJOY THE YIELD IN THE FORM OF DIVIDEND AND THUS THE SHARES WERE HELD BEFORE THE SALE AS CAPITAL ASSET AND NOT AS TRADING ASSET. THE AO CONCLUDED THAT THE ASSESSEE HAS UNDERTAKEN THE T RANSACTIONS OF BUYING AND SELLING OF SHARES WITH A PROFIT MOTIVE A T A REGULAR INTERVAL AND THE BUYING AND SELLING ACTIVITIES WERE SUBSTANT IAL AND NUMEROUS. IN THE TOTALITY OF CIRCUMSTANCES, THE AO HELD THAT THE PROFITS ARISING ON PURCHASE AND SALE OF SHARES ARE IN THE NATURE OF B USINESS INCOME AND THEREFORE DENIED CONCESSIONAL TAX TREATMENT AVAILAB LE TO THE ASSESSEE WHERE THE GAINS ARISING ARE FOUND TO BE FROM INVEST MENT ACTIVITY OF SALE OF CAPITAL ASSETS. 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) CHALLENGING THE ACTION OF THE AO IN TREATING THE SH ORT TERM CAPITAL GAINS OF RS.1,75,77,642/- DECLARED AS SHORT TERM CA PITAL GAIN TO BE BUSINESS INCOME IN THE HANDS OF THE ASSESSEE. THE CIT(A) REVISITED THE FACTS AND SUBMISSIONS MADE ON BEHALF OF THE ASS ESSEE IN THIS REGARD AND FOUND FORCE IN THE PLEA OF THE ASSESSEE THAT TH E ASSESSE HAS RIGHTFULLY CLAIMED THE PROFITS ARISING ON PURCHASE AND SALE OF SHARES AS CAPITAL GAINS AND SET ASIDE THE ACTION OF THE AO HO LDING THE SAME TO BE BUSINESS INCOME. THE RELEVANT OPERATIVE PARAS OF THE ORDER OF THE CIT(A) READ AS UNDER: 2.6 DECISION : THE ONLY CONTROVERSY INVOLVED IN THE PRESENT APPEAL IS SHORT TERM CAPITAL GAIN ON CERTAIN TRANSACTIONS OF PURCHASES A ND SALES OF SHARES ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 4 - WHICH HAS BEEN OFFERED TO TAX BY THE APPELLANT @ 15 % WHICH HAS BEEN CONSIDERED BY THE A.O. AS BUSINESS INCOME AND TAXED THE SAME @ 30%. AT THE OUTSET, THE ENTIRE TRANSACTIONS OF PURCHASES AN D SALES HAVE BEEN CONSIDERED BY THE A.O. AS GENUINE AND THERE IS NO F INDING THAT SUCH TRANSACTIONS ARE BOGUS OR NOT SUPPORTED BY ANY DOCU MENTARY EVIDENCES. FOR CONSIDERING THE SAID TRANSACTIONS AS SHORT TERM CAPITAL GAIN, HEAVY RELIANCE HAS BEEN PLACED BY THE APPELLANT ON CIRCUL AR NO. 4/2007 DATED 15 TH JUNE 2007 ISSUED BY THE CBDT AND SUBMITTING THAT A S PER THE PARAMETERS LAID DOWN BY THE VARIOUS JUDICIAL AUTHOR ITIES THE TRANSACTIONS RELATING TO THE PRESENT SALE AND PURCHASES OF SHARE S FALL WITHIN THE INVESTMENT ACTIVITY AND NOT BUSINESS ACTIVITY. A S IMILAR SUBMISSION WAS ALSO MADE BEFORE THE A.O. AND IN THE ENTIRE ASSESSM ENT ORDER; A.O. HAS NOT RECORDED ANY FINDING AS TO THE CIRCULAR DATED 1 5TH JUNE 2007 BUT MAINLY ON THE GROUND THAT CERTAIN SHARES WERE FOUND TO BE IN THE POOL ACCOUNT OF THE SHARE BROKER, ON THE BASIS OF INQUIR Y CONDUCTED U/S, 133(6) WITH THE BROKER AND THEREFORE, HELD THAT ASSESSEE H AS NOT TAKEN DELIVERY OF THE SHARES. THE CONTENTION RAISED BY THE A.O. IS N OT FOUND TO BE CORRECT AS M/S. AMRAPALI CAPITAL AND FINANCE SERVICES LTD. IN THE CLIENT REPORT IN THE NAME OF THE APPELLANT FOR THE PERIOD 1/4/201 2 TO 31/3/2013 AS PLACED ON PAGE NO. 321 & 322 OF THE PAPER BOOK, DEA LS WITH PURCHASE AND SALES OF SHARES GIVING PURCHASE QUANTITY AND RATE, SALE QUANTITY AND RATE, HAS BEEN CONFIRMED TO THE A.O. FURTHER, A.O. HAS AL SO OBSERVED ON PAGE NO. 9, WHILE DEALING WITH DELIVERY OF THE SHARES TH AT THE SHARES WERE PLACED IN THE POOL ACCOUNT AND IN THE REPLY DATED 1 5TH FEBRUARY, 2016 IN POINT NO. 8.1 AS REPRODUCED BY THE A.O. ON PAGE NO . 2 OF THE ASSESSMENT ORDER, IT IS VERY CLEAR THAT APPELLANT HAS CONFIRME D THAT THE SHARES HAVE BEEN PURCHASED AND DELIVERY OF THE SAME HAS ALSO BE EN TAKEN ON THE SAME DAY AS BEING REFLECTED IN THE POOL ACCOUNT OF THE B ROKER AND NOT IN THE DEMAT ACCOUNT OF THE APPELLANT. IN THE ENTIRE ASSES SMENT ORDER, A.O. HAS NOT BROUGHT ON RECORD ANY EVIDENCE DOUBTING THE SHA RES KEPT IN POOL ACCOUNT AND FURTHER U/S. 133(6) AS REFERRED IN PARA NO. 5 OF THE ASSESSMENT ORDER, AMRAPALI CAPITAL AND FINANCE SERV ICES LTD. HAS FURNISHED COPY OF THE LEDGER ACCOUNT AND DEMAT ACCO UNT. THEREFORE, THE CONCLUSION ARRIVED BY THE A.O, THAT NOT TAKING THE DELIVERY OF THE SHARES IN THE ASSESSEE'S OWN DEMAT ACCOUNT IS WITH THE INTENT ION TO EARN PROFIT FROM SALE OF SHARES IN A SHORT SPAN OF TIME RESULTING IN TO AN ADVENTURE OF BUSINESS IS INCORRECT AS FROM THE DETAILS OF GAIN I T IS ABSOLUTELY CLEAR THAT THERE ARE. 26 SCRIPTS IN WHICH THE SALES AND PURCHA SES HAS BEEN MADE AND THERE ARE 35 TRANSACTIONS OF PURCHASES AND 30 TRANS ACTIONS OF SALES FOR SHORT TERM AS WELL AS LONG TERM GAIN, DURING THE YE AR UNDER CONSIDERATION AS PER THE DETAILS PLACED ON PAGE NO.15 OF THE PAPE R BOOK AND AS SUBMITTED TO THE A.O., OUT OF WHICH THE TRANSACTION S PERTAINING TO SHORT TERM CAPITAL GAINS ARE IN RESPECT OF 12 SCRIPTS, PU RCHASE TRANSACTIONS ARE 18 AND SALES TRANSACTIONS ARE 16. THE MAJOR SHORT T ERM GAIN IS OF RS.1,92,25,180 RELATING TO THE 3 TRANSACTIONS OF PU RCHASE OF SHARES OF ONELIFE CAPITAL AND 2 SALES TRANSACTIONS. THE PURCH ASES WERE IN THE MONTHS OF JULY, SEPTEMBER & OCTOBER, 2012 WHEREAS S ALES WERE IN THE MONTH OF JULY AND OCTOBER, 2012. SINCE THERE IS A V ERY NOMINAL GAP BETWEEN THE DATE OF PURCHASES AND SALES, THE DISCRE PANCY WITH RESPECT TO PAYMENT DATE IS IN THE NORMAL COURSE OF BUSINESS AS THERE ARE OTHER TRANSACTIONS ALSO WITH THE SAME BROKER. IT IS SEEN THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEED INGS APPELLANT FURNISHED FOLLOWING EVIDENCES: ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 5 - (I) COPY OF BILLS FOR THE PURCHASE AND SALE OF SHAR ES DURING FY 2011-12 (II) COPY OF ACCOUNT OF BROKER NAMELY AMRAPALI CAP ITAL AND FINANCE SERVICE LTD. (III) COPY OF D-MAT ACCOUNT OF THE APPELLANT FOR T HE PERIOD 1-4- 2011 TO 31-3-2012 (IV) COPY OF POOL ACCOUNT OF THE BROKER WHEREIN TH E NAME OF THE APPELLANT IS APPEARING AS BENEFICIARY OF THE SHARES HELD IN POOL ACCOUNT OF THE BROKER (V) COPY OF PERSONAL ACCOUNTS, WHEREIN THE SHARES HAVE BEEN SHOWN AS INVESTMENT. IT IS ALSO SEEN THAT SUCH SHARES HAS BEEN SHOWN AS INVESTMENT IN THE BALANCE SHEET IN THE EARLIER YEARS AS WELL AS IN TH IS YEAR AND THERE ARE NO BORROWED FUNDS. THEREFORE, ALL THE CRITERIA RELATIN G TO INVESTMENT ACTIVITY ARE FULFILLED. MOREOVER, THE A.O. HAS CONSIDERED TH E TRANSACTIONS AS GENUINE BUT ONLY CONSIDERED THE SAME AS BUSINESS IN COME AS ADVENTURE IN NATURE OF TRADE. RELIANCE IS ALSO PLACED ON THE JUD GMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. NIRAJ AMI DHAR SURTI, 238 CTR 294 WHEREIN IT HAS BEEN HELD AS UNDER: '12. ON A PERUSAL OF THE ASSESSMENT ORDER, IT APPEA RS THAT THE MAIN CONSIDERATION WHICH HAS WEIGHED UPON THE ASSESSING OFFICER FOR THE PURPOSE OF HOLDING THAT THE TRANSACTION IN QUESTION IS AN 'ADVENTURE IN THE NATURE OF TRADE' AND NOT AN INVESTMENT, IS T HAT FOR THE PURPOSE OF PURCHASING THE SHARES IN QUESTION, NAMEL Y, THE SHARES OF EURO ASIAN SECURITIES LTD. (HOME TRADE LTD.), THE A SSESSEE HAD OBTAINED LOAN FROM M/S MANIRAM CONSULTANTS & INVEST MENTS PVT, LTD. ON INTEREST AT THE RATE OF 30%, WHICH ACCORDIN G TO THE ASSESSING OFFICER, WAS AN EXORBITANT RATE. THOUGH T HE ASSESSEE HAD PURCHASED/SOLD OTHER SHARES AND UNITS OF MUTUAL FUN DS, THIS SOLITARY TRANSACTION HAD BEEN DISPUTED BY THE ASSESSING OFFI CER MAINLY BECAUSE THE ASSESSEE HAD PURCHASED THE SHARES IN QU ESTION FROM BORROWED FUNDS OBTAINED ON HIGH RATE OF INTEREST, W HICH ALSO FORMS THE BASIS FOR THE CONCLUSION ARRIVED AT BY THE ASSE SSING OFFICER THAT THE TRANSACTION IN QUESTION IS AN 'ADVENTURE IN THE NATURE OF TRADE OR BUSINESS RATHER THAN A NORMAL INVESTMENT. 13. ANOTHER REASON FOR HOLDING THAT THE TRANSACTION IN QUESTION IS AN 'ADVENTURE IN THE NATURE OF TRADE OR BUSINESS' I S THAT THE SHARES IN QUESTION WERE HELD BY MANIRAM CONSULTANTS TILL T HE ENTIRE LOAN WAS PAID AND WERE INITIALLY PURCHASED IN THE NAME O F MANIRAM CONSULTANTS IN TERMS OF THE AGREEMENT BETWEEN THE A SSESSEE AND MAN/RAM CONSULTANTS. ACCORDING TO THE ASSESSING OFF ICER, SINCE THE ASSESSEE HAD NOT OBTAINED PHYSICAL POSSESSION OF TH E SHARES IN QUESTION AT THE RELEVANT TIME, THE ASSESSEE WAS NOT THE OWNER OF THE SHARES IN QUESTION. 14. HOWEVER, THE REASONING ADOPTED BY THE ASSESSING OFFICER LOSES SIGHT OF THE FACT THAT MERELY BECAUSE THE SHARES HA D BEEN PURCHASED FROM BORROWED FUNDS OBTAINED ON HIGH RATE OF INTERE ST WOULD NOT CHANGE THE NATURE OF THE TRANSACTION FROM INVESTMEN T TO ONE IN THE NATURE OF AN 'ADVENTURE IN THE NATURE OF TRADE'. ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 6 - 15. THE APEX COURT IN THE CASE OF KHAN BAHADUR AHMED ALLADIN & SONS V. COMMISSIONER OF INCOME TAX, ANDHRA PRADESH (SUPRA) HAS HELD THAT THE QUESTION AS TO WHETHER THE TRANSA CTION IS AN ADVENTURE IN THE NATURE OF TRADE MUST BE DECIDED ON A CONSIDERATION OF A/I THE RELEVANT FACTS AND CIRCUMSTANCES WHICH A RE PROVED IN A PARTICULAR CASE. THE ANSWER TO THE QUESTION DOES NO T DEPEND UPON THE APPLICATION OF ANY ABSTRACT RULE, PRINCIPLE OR FORMULA BUT MUST DEPEND UPON THE TOTAL IMPRESSION EFFECT OF ALL THE RELEVANT FACTS AND CIRCUMSTANCES ESTABLISHED IN THE PARTICULAR CASE. 16. IN THE CASE OF THE COMMISSIONER OF INCOME TAX, NAGPUR V. M/S SUTLEJ COTTON MILLS SUPPLY AGENCY LTD., (1975) 100 ITR 706, THE SUPREME COURT HAS HELD THAT A CAPITAL INVESTMENT AN D RESALE DO NOT LOSE THEIR CAPITAL NATURE MERELY BECAUSE THE RESALE WAS FORESEEN AND CONTEMPLATED WHEN THE INVESTMENT WAS MADE AND T HE POSSIBILITY OF ENHANCED VALUES MOTIVATED THE INVESTMENT. THE APPELLANT HAS ALSO RELIED UPON ANOTHER DECISION OF HON'BLE ITAT, MUMBAI IN THE CASE OF ITO VS. DEEPCHAN G. SHAH (2011) 128 ITD 488 , WHEREIN, THE ITAT HAD AN OCCASION TO DEAL WITH THE ISSUE RELATING TO THE SHARES HELD IN POOL ACCOUNT AND HELD THAT THE SHARE S HELD IN THE POOL ACCOUNT OF THE BROKER IS TO BE CONSIDERED FOR THE P URPOSE OF DETERMINING THE PERIOD OF HOLDING OF THE SHARES. THEREFORE, IT IS A COMMON PRACTICE TO HAVE THE SHARES IN THE POOL ACCOUNT OF THE BROKER A ND IT IS NOT AN EXCEPTION ONLY IN THE CASE OF THE APPELLANT. FURTHER, THE CBDT CIRCULAR NO. 6/2016 DATED 29.02.2 016 RELIED UPON BY THE APPELLANT AND AS REPRODUCED HEREINABOVE, CLEARL Y SUPPORTS THE ISSUE RAISED IN THIS APPEAL AND STANDS FULLY COVERED BY T HE SAID CIRCULAR. IT IS A FACT THAT THE APPELLANT HAS TREATED THE SHARES AND SECURITIES AS 'INVESTMENT' AND NOT AS 'STOCK-IN-TRADE' IN THE YEA R UNDER APPEAL AS WELL AS IN PAST YEARS. THEREFORE, IN VIEW OF THE ABOVE C BDT CIRCULAR, THE AO IS NOT PERMITTED TO TAKE A CONTRARY VIEW IN THE YEAR U NDER APPEAL AND CLAIMED THAT THE SHARES AND SECURITY IS STOCK-IN-TR ADE AND, THEREFORE, THE PROFIT/GAIN CAUSED TO THE ASSESSEE BE TREATED AS BU SINESS INCOME. FURTHER, IT IS ALSO A FACT AS CAME OUT FROM THE ASSESSMENT O RDER THAT THE AO HAS NOT DOUBTED THE GENUINENESS OF THE TRANSACTION OF PURCH ASE AND SALE OF SHARES. THE ONLY CONTROVERSY RAISED BY THE AO IS TO TREAT THE SHORT TERM CAPITAL GAIN OF RS. 1,75,77,642/- SHOWN BY THE APPE LLANT AS BUSINESS INCOME. THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, R EPLIES PURSUANT TO THE INQUIRIES CONDUCTED BY THE A.O, U/S. 133(6) AND AS DISCUSSED IN DETAIL HEREINABOVE, CBDT CIRCULAR 6/2016 DATED 29/02/2016, THE ACTION OF THE AO IN CONSIDERING RS. 1,75,77,642/- AS INCOME FROM BUSINESS AND ADVENTURE IN THE NATURE OF TRADE, IS NOT FOUND TO B E COMING FROM THE FACTS OF THE CASE AND RECORDS AND THEREFORE, CONSIDERING THE CIRCULAR DATED 15TH JUNE 2007 AND THE JUDGMENT OF THE HON'BLE SUPREME C OURT IN THE CASE OF CIT V/S. DEVASAN INVESTMENT (P) LTD. (2015) 53 TAXM ANN.COM 219, WHEREIN PROFIT FROM SALE AND PURCHASE OF SHARES HAS BEEN TREATED AS CAPITAL GAIN IN THE CASES WHERE INVESTMENT IN SHARE S WAS MADE WITH THE OBJECT OF CAPITAL APPRECIATION AND HAVING INFREQUEN T - HANDFUL TRANSACTIONS. THE FACTS OF THE PRESENT CASE ARE ALS O SIMILAR AND IN VIEW OF ELABORATE FINDINGS GIVEN HEREINABOVE, THE TRANSACTI ONS ARE CONSIDERED AS SHORT TERM CAPITAL GAIN. THE GROUNDS 1 TO 3 ARE ALL OWED. ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 7 - 3. IN THE RESULT, THE APPEAL IS ALLOWED . THUS, THE CIT(A) REVERSED THE ACTION OF THE AO. 5. AGGRIEVED, THE REVENUE PREFERRED APPEAL BEFORE T HE TRIBUNAL AGAINST THE AFORESAID ORDER OF THE CIT(A). 6. THE LEARNED DR FOR THE REVENUE AT THE OUTSET REL IED UPON THE ORDER OF THE AO AND SUBMITTED THAT THE AO HAS CLEAR LY DEMONSTRATED IN THE GIVEN FACTS OF THE CASE THAT THE ASSESSEE WAS I NDULGING IN FREQUENT PURCHASE AND SALE OF SHARES WHICH INDICATES A SYSTE MATIC ACTIVITY OF BUSINESS NATURE. THIS APART, ANOTHER NOTICEABLE FA CT IS THAT THE SHARES SO PURCHASED HAVE BEEN RETAINED IN THE BROKERS POO L ACCOUNT AS THE INTENTION TOWARDS PURCHASE WAS CLEARLY TO RESALE TH E SAME WITHIN A VERY SHORT SPAN OF TIME TO TAKE ADVANTAGE OF MARKET FLUCTUATIONS. THE LEARNED DR THEREAFTER SUBMITTED THAT ANOTHER POINT OF SIGNIFICANCE IS THAT THE ASSESSEE HAS NOT EVEN MADE PAYMENT FOR PUR CHASE OF SHARES AND THE PURCHASE LIABILITY WAS SQUARED OFF BY THE S ALE CONSIDERATION AND ASSESSEE HAS SIMPLY EARNED THE DIFFERENTIAL INC OME OWING TO MARKET FLUCTUATION. THE LEARNED DR THUS SPEARHEADE D THAT WHEN THESE FACTS ARE CUMULATIVELY SEEN, THERE CAN BE NO IOTA O F DOUBT ABOUT THE DOMINANT INTENTION OF THE ASSESSEE TO BE ENGAGED IN AN ADVENTURE AKIN TO COMMERCIAL ACTIVITY OF PURCHASE AND SALE OF SHAR ES. THE LEARNED DR THEREAFTER ADVERTED OUR ATTENTION TO PURCHASE AND S ALE OF ONE OF THE SCRIP NAMELY ONELIFE CAPITAL WHICH HAS VIRTUALLY GENERATED THE IMPUGNED PROFITS IN QUESTION. EXPANDING THE CONTENT IONS WITH REFERENCE TO THE AFORESAID SCRIP, THE LEARNED DR SU BMITTED THAT THE PURCHASE VALUE OF THE AFORESAID SCRIP IS MORE THAN RS.40 CRORES . THE ASSESSEE HAS NOT PAID THE AFORESAID SUM TO THE BROK ER AT ALL. THE SHARES WERE PURCHASED ON BEHALF OF THE ASSESSEE AND MERRILY KEPT IN THE POOL ACCOUNT TO MAINTAIN STRANGLE HOLD ON THE O UTSTANDING PURCHASE MONEY. THE SHARES WERE THEREAFTER RESOLD IN A SHOR T PERIOD AND THE ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 8 - DELIVERY WAS GIVEN IN THE MARKET OUT OF POOL ACCOUN T AND THUS THE ASSESSEE WAS NEVER IN ACTUAL POSITION OF THE SCRIP WHICH IS CLAIMED TO BE CAPITAL INVESTMENT. THE LEARNED DR THUS SUBMITT ED THAT THE ASSESSEE HAS NEITHER DISCHARGED HIS PAYMENT OBLIGAT ION AGAINST THE PURCHASE NOR HAS TAKEN DELIVERY IN HIS DEMAT ACCOUN T AFTER PURCHASE UNLIKE AN INVESTOR. IT WAS THUS CANVASSED THAT THE RE IS WIDE GAP BETWEEN THE NARRATIVE OF THE ASSESSEE AND ACTUAL FA CTS. IT WAS THUS VOCIFEROUSLY CONTENDED THAT THE ASSESSEE HAS MERELY TAKEN ADVANTAGE OF THE MARKET FLUCTUATION BY LIVERAGING HIS FINANCI AL TRANSACTION BY MAKING PAYMENT ONLY IN THE FORM OF MARGIN MONEY. T HE LEARNED DR ADDED THAT THIS WAS THE CONTINUING STATUS. THE LEA RNED DR QUIPPED THAT THE PROFITS ARISING ON SUCH ACTIVITY OF HIGH R ISKS AND EXPOSURE CANNOT BE DEEMED AS ACTION OF CAPITAL APPRECIATION OF ANY SORT. ADVERTING TO THE ORDER OF THE CIT(A), THE LEARNED D R SUBMITTED THAT THE CIT(A) HAS ADJUDICATED THE ISSUE IN FAVOUR OF T HE ASSESSEE ON EXTRANEOUS CONSIDERATION. THE GENUINENESS OF PURCH ASE AND SALE OF SHARES IS NOT IN QUESTION AS PURPORTED. THE TAXABI LITY UNDER THE CORRECT HEAD OF INCOME IS THE POINT IN DELIBERATION WHICH IS DEPENDENT UPON RELEVANT FACTORS. THE LEARNED DR SUBMITTED TH AT THE TELL-TALE FACTS OF KEEPING THE DELIVERY WITH THE BROKER, NON- PAYMENT AGAINST PURCHASES EXCEPT SOME MARGIN MONEY AND RE-SALE WITH IN SHORT SPAN OF TIME HAS NOT BEEN WEIGHED BY THE CIT(A) AT ALL DESP ITE TAKING NOTE OF THE SAME IN ISOLATION. THE LEARNED DR THUS SUBMITT ED THAT THE CIT(A) HAS COMMITTED GROSS ERROR IN FINDING FAULT WITH THE REASONED ORDER OF THE AO AND ARRIVING AT CONCLUSION TOTALLY DIVORCED OF FACTS. THE LEARNED DR THUS URGED THAT THE ACTION OF THE CIT(A) REQUIRES TO BE SET ASIDE AND THE ORDER OF THE AO IS REQUIRED TO BE UPH ELD. 7. THE LEARNED AR FOR THE ASSESSEE, ON THE OTHER HA ND, BROADLY RELIED UPON THE ORDER OF THE CIT(A) AND SUBMITTED T HAT THE ASSESSEE IN HIS BOOKS OF ACCOUNTS HAS TREATED THE TRANSACTIONS UNDER THE HEAD ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 9 - INVESTMENT WHICH REFLECTS THE PARAMOUNT INTENTION OF THE ASSESSEE TO HOLD THE SHARES AS CAPITAL ASSET WITH THE VIEW TO ENJOY THE YIELD IN THE FORM OF DIVIDEND. IT WAS SUBMITTED THAT IT IS A DIFFERENT MATTER THAT SHARES WERE RESOLD IN A SHORT SPAN OF TIME DUE TO E ARLY OPPORTUNITY AVAILABLE IN MARKET, WHICH HAS NO IMPACT ON THE INI TIAL INTENTION AT THE TIME OF PURCHASE OF SHARES. THE LEARNED AR THEREAF TER SUBMITTED THAT MERELY BECAUSE SHARES WERE HELD IN THE POOL ACCOUNT NO ADVERSE INFERENCE COULD BE DRAWN FOR THE REASON THAT THE CO NSTRUCTIVE DELIVERY OF THE SHARES WERE ALWAYS WITH THE ASSESSEE. AS RE GARDS PAYMENTS AGAINST PURCHASES, THE LEARNED AR FOR THE ASSESSEE OBSERVED THAT THE PAYMENT OBLIGATIONS HAVE BEEN ULTIMATELY DISCHARGED AND THEREFORE SUCH POINT DOES NOT CARRY ANY WEIGHT. THE LEARNED AR ALSO SUBMITTED THAT THE SHARES HELD AT THE END OF THE YEAR HAVE BE EN REFLECTED UNDER THE HEAD INVESTMENT (ASSET) IN THE FINANCIAL STAT EMENT WHICH UNDERSCORES THE INTENTION OF THE ASSESSEE TO HOLD T HE SHARES AS INVESTMENTS. DRAWING DISTINCTION THE AR ARGUED THA T THE INVESTMENTS IN SHARES HAVE BEEN VALUED AT COST UNLIKE COST OR MARKET VALUE AS APPLICABLE TO SHARES HELD AS STOCK-IN-TRADE. THE L EARNED DR NEXT CONTENDED THAT THE POSITION OF THE ASSESSEE AS INVE STOR HAS BEEN ADOPTED IN THE EARLIER YEARS AS WELL AS IN SUBSEQUE NT ASSESSMENT YEAR. THE LEARNED AR ACCORDINGLY SUBMITTED THAT THE CIT(A ) HAS RIGHTLY APPRECIATED THE FACTS IN ITS PROPER PERSPECTIVE AND NO INTERFERENCE THEREOF IS CALLED FOR. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE CIT(A) APPEALED AGAINST AND ALSO VARIOUS DOCUMENTS REFERRED TO AT THE TIME OF HEARING AND CASE LAWS CITED. THE SOLITARY ISSUE FOR ADJUDICATION IS WHETHER PROFITS EARNED ON SALE OF CERTAIN SHARES BY THE ASSESSEE IN THE RELEVANT ASSESSMENT YEAR IS REQUIRED TO BE TAXED UNDER THE H EAD CAPITAL GAINS (AT CONCESSIONAL RATE) AS OFFERED BY THE ASSESSEE O R IS TO BE TREATED AS ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 10 - BUSINESS INCOME (SUSCEPTIBLE TO TAX AT HIGHER RAT E) OF THE ASSESSEE AS REALIGNED BY THE AO. 8.1 THE ISSUE INVOLVED IS ESSENTIALLY FACTUAL IN NA TURE AND DEPENDS SQUARELY UPON THE TOTALITY OF FACTS OF A GIVEN CASE . 8.2 WITH REGARDS TO THE JUSTIFICATION OF CLAIM AS S HORT TERM CAPITAL GAIN, IT IS THE CASE OF THE ASSESSEE THAT SHARES WE RE ACQUIRED AND PURCHASED WITH AN INTENTION TO ENJOY CAPITAL ACCRET ION AND WERE HELD AS CAPITAL ASSET IN THE NATURE OF INVESTMENT PR IOR TO ITS SALE. AS NOTICED, THE ASSESSEE IN THE INSTANT CASE HAS PURCH ASED CERTAIN SHARES THROUGH STOCK BROKER AND THEREAFTER RESOLD THE SAME WITHIN A VERY SHORT SPAN OF TIME. THE TRANSACTION OF IMPUGNED PU RCHASE AND SALE HAS GIVEN RISE TO THE PROFITS OF RS.1,75,77,642/- WHICH WAS BROUGHT TO TAX BY THE REVENUE AS ADVENTURE IN THE NATURE OF TRADE UNDER S. 28 R.W.S. 2(13) OF THE ACT. THE CIT(A) HAS REVERSED THE ACTI ON OF THE AO AND ADMITTED THE CLAIM OF THE ASSESSEE FOR ITS CHARGEAB ILITY AT ITS CONCESSIONAL RATE UNDER THE HEAD CAPITAL GAINS. 8.3 THE REVENUE HAS DISPUTED THE AFORESAID ACTION O F THE CIT(A) BEFORE US ON VARIOUS COUNTS. FIRSTLY, IT IS THE CA SE OF THE REVENUE THAT PURCHASE AND SALE TRANSACTIONS OF SHARES BEAR THE T RAPPINGS TRANSACTIONS OF COMMERCIAL MOTIVE AND SECONDLY, PRO FITS ARISING THEREFROM IS CHARGEABLE UNDER S.28 OF THE ACT UNDER THE HEAD BUSINESS INCOME IN CONTRAST TO THE STAND OF THE ASSESSEE SE EKING TO TREAT THE SHARES SO PURCHASE AS CAPITAL ASSET AND THUS FOR TAXING THE RESULTANT PROFITS ON ITS SALE AS CAPITAL GAINS UNDER S.45 O F THE ACT. 8.4 WE NOTICE THE FUNDAMENTAL CASE OF THE REVENUE I S THAT SHARES SO PURCHASED HAVE NOT BEEN TRANSFERRED TO THE DEMAT AC COUNT OF THE ASSESSEE AT ALL BUT BROKER ACTED AS HOLDER IN DUE C OURSE BY KEEPING ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 11 - SUCH SHARES IN ITS POOL ACCOUNT WHICH UNDERLINES TH E REAL MOTIVE OF THE ASSESSEE TO RESALE THE SAME IN QUICK TIME WITH A VI EW TO MAKE PROFITS FROM MARKET VOLATILITY. WE ALSO TAKE NOTICE OF ANO THER SIGNIFICANT ARGUMENT PLACED ON BEHALF OF THE REVENUE THAT THE P URCHASE CONSIDERATION HAS NOT BEEN PAID TO THE BROKER BY TH E ASSESSEE AT ALL AND HAS BEEN MERELY SET OFF AGAINST THE SALE CONSIDERAT ION RECEIVED AT A LATER DATE. THIS EXEMPLIFIES THE FACT THAT THE SHA RES WERE INTENDED TO BE HELD AS TRADING ASSET FOR A SHORT PERIOD WITH A VIEW TO MAKE IMMEDIATE PROFITS. IT IS TRUE THAT INTENTIONS TO H OLD ASSET AS TRADING ASSET OR A CAPITAL ASSET ARE IN-CAPABLE OF ANY C OGENT PROOF. INTENTIONS CAN AT BEST BE INFERRED ON THE BASIS OF FACTS AND CIRCUMSTANCES OF EACH CASE. WHEN SEEN OBJECTIVELY, IT IS NOTICED THAT THE WHOPPING PROFITS OF RS.1.75 CRORE HAS ESSENTIAL LY BEEN GENERATED FROM PURCHASE AND SALE OF ONE OF THE SHARES NAMELY ONELIFE CAPITAL. THE PURCHASE CONSIDERATION AS TABULATED IN THE ASSE SSMENT ORDER EXCEEDS RS.40 CRORES. THE PAYMENT OF SUCH PURCHASE CONSIDERATION HAS ADMITTEDLY NOT BEEN MADE. IN OTHER WORDS, THE PURCHASES OF SHARES HAVE BEEN PREDOMINANTLY FINANCED BY THE BROKER. TH E SHARES WERE HELD AT THE DISPOSAL OF THE BROKER IN ITS POOL ACCO UNT WHICH INEVITABLY MEAN THAT IT PRIMARY ACTS AS A KIND OF SECURITY AGA INST OUTSTANDING PAYMENT. THE SHARES HAVE BEEN QUICKLY SOLD AND EXT RAORDINARILY PROFITS HAVE BEEN GENERATED WITHOUT EMPLOYING ANY W ORTHWHILE FUND. THE PROFITS ARE THUS OSTENSIBLY MADE OWING TO RISK TAKING CAPACITY OF THE ASSESSEE. THESE SPEAKING FACTS CLEARLY SUGGEST THE INTENTION OF ASSESSEE TO HOLD THE SHARES FOR RESALE IN IMMEDIATE FUTURE WITH A VIEW TO MAKE PROFITS ESSENTIALLY ON RISK PERCEPTION. TH E PROFIT/LOSS FROM SUCH ACTIVITY THUS HAS VISIBLE CHARACTERISTICS OF B USINESS INCOME. 8.5 NEEDLESS TO SAY, MERELY BECAUSE SHARES HAVE BEE N SHOWN IN THE BOOKS OF ACCOUNTS AS INVESTMENT AS CLAIMED, THE S AME BY ITSELF WILL NOT OVERRIDE THE DOMINANT INTENTION APPARENTLY VISI BLE FROM ENTIRE ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 12 - GAMUT OF ACTION OF THE ASSESSEE. THE MANNER OF ENT RY IN BOOK IS THUS NOT ALWAYS DECISIVE IN DETERMINING THE UNDERLYING I NTENTIONS OF AN ASSESSEE. IN THE ABSENCE OF PAYMENT OR DELIVERY, T HE ENTIRE EXPLANATION FOR INITIAL INTENTION TO HOLD THE SHARE S FOR LONG PERIOD FOR CAPITAL APPRECIATION PURPOSES IS BALD AND UNVERIFIA BLE. 8.6 THE ACTION OF THE ASSESSEE DOES NOT COINCIDE WI TH THE BEHAVIOR OF A INVESTOR OF ORDINARY PRUDENCE. PERTINENTLY THE A SSESSEE HAS ALSO NOT DEMONSTRATED THE FINANCIAL CAPACITY TO INVEST SUCH LARGE SUM FOR PURCHASE OF SHARES. IN THE ABSENCE OF FINANCIAL RE SOURCES, IT IS RATHER DIFFICULT TO PERCEIVE THE POSITION OF ASSESSEE AS I NVESTOR. MERE AVERMENT OF GENERIC NATURE WOULD NOT IN OUR VIEW JU STIFY THE STAND OF THE ASSESSEE AS INVESTOR. SIMILARLY MERE DISCLOSUR E OF THE TRANSACTION IN A PARTICULAR WAY IN ITS BOOKS OF ACCOUNTS WOULD NOT GRANT ANY INDEFEASIBLE RIGHT TO CLAIM THAT EACH AND EVERY TRA NSACTIONS OF SHARES UNDERTAKEN BY THE ASSESSEE IS OF CAPITAL NATURE. T HE ISSUE FOR DETERMINATION DEPENDS ON TOTALITY OF FACTS OF EACH CASE. AS NOTED THE IMPUGNED TRANSACTION OF PURCHASE AND SALE (MAINLY O F ONELIFE CAPITAL) GIVING RISE TO DISPUTE IS BESET WITH UNCHARACTERIST IC FEATURES WHICH ARE AKIN TO AN ADVENTURE IN THE PERSUIT OF TRADE RATHER THAN A CAPITAL TRANSACTION. 8.7 PERTINENT TO NOTE HERE THAT THE HONBLE SUPREME COURT IN THE CASE OF DALMIA CEMENT LTD. VS. CIT (1976) 105 ITR 6 33 (SC) HELD THAT IT IS NOT POSSIBLE TO EVOLVE ANY SINGLE LEGAL TEST OR FORMULA WHICH COULD BE APPLIED IN DETERMINING WHETHER A TRANSACTI ON IS AN ADVENTURE NATURE OF TRADE AND THAT THE ANSWER TO THE QUESTION MUST DEPEND IN EACH COST ON THE TOTAL IMPRESSION AND THE FACT OF A LL THE RELEVANT FACTORS AND CIRCUMSTANCES PROVED THEREIN AND WHICH DETERMINED THE CHARACTER OF THE TRANSACTION. ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 13 - 8.8 THE CUMULATIVE FACTS AND CIRCUMSTANCES SEEN HOL ISTICALLY AND READ IN CONJUNCTION WITH THE TESTS OR PARAMETERS LA ID DOWN BY VARIOUS JUDICIAL PRECEDENTS PROVIDE SOUND BASIS TO INFER TH E INTENTION OF COMMERCIAL ACTIVITY IN THE IMPUGNED TRANSACTION BY TAKING UNPRECEDENTED MARKET RISKS. 8.9 THE CIT(A), IN OUR VIEW, HAS TAKEN A VERY HAWKI SH VIEW OF THE GLARING FACTS. A REFERENCE HAS BEEN MADE BY THE CI T(A) TO THE CIRCULAR NO. 4/2007 DATED 15 TH JUNE, 2007 WHICH SUMMARIZES THE PARAMETER LAID DOWN BY THE VARIOUS JUDICIAL AUTHORI TIES TO WEIGH AS TO WHETHER THE TRANSACTION IS AN BUSINESS ACTIVITY O R INVESTMENT ACTIVITY. HOWEVER, WE FAIL TO UNDERSTAND AS TO HO W THE PARAMETERS LAID DOWN IN THE AFORESAID CIRCULAR HELPS THE CASE OF THE ASSESSEE. THE CIT(A) WHILE ADMITTING THAT SUCH ISSUE CANNOT BE DE CIDED ON ANY ABSTRACT RULE OR FORMULA, BUT HOWEVER HAS PROCEEDED ON THE GROUND THAT SAME WERE DECLARED IN THE BALANCE SHEET WITHOUT ANY BORROWED FUNDS AND SHARES KEPT IN THE POOL ACCOUNT DOES NOT GIVE R ISE TO ADVERSE RULE. IN OUR VIEW, THE OPINION FORMED BY THE CIT(A) IN FA VOUR OF THE ASSESSEE IS TOTALLY MIS-PLACED IN THE GROSS FACTS N OTED ABOVE. THE INTENTION OF THE ASSESSEE TO ENGAGE IN PURCHASE WIT HOUT INVOLVEMENT OF MONEY AND QUICK SALE THEREOF WITH A COMMERCIAL MOTI VE IS OVERTLY CLEAR WITHOUT ANY DOUBT. TO INFER THE PURCHASE OF SHARES WITHOUT DEPLOYMENT OF FUNDS AND WITHOUT RECEIPT OF ACTUAL D ELIVERY OF SHARES AS INTENDED TO BE AS INVESTMENT ACTIVITY, IN OUR VI EW, WHOLLY INCOMPREHENSIBLE. THE SUBSEQUENT CONDUCT OF RESALE AT A SHORT SPAN OF TIME ONLY REINFORCES THE OTHERWISE VISIBLE TRADING INTENTIONS RIGHT FROM ITS BEGINNING. MERE DECLARATION OF SHARES AS INVE STMENTS OF CAPITAL NATURE IN THE BOOKS, WILL NOT, IN OUR VIEW, ALTER T HE INHERENT CHARACTER OF THE TRANSACTION. THE ISSUE BEING DEPENDENT ON F ACTS, THE ACCEPTANCE OF SHORT TERM CAPITAL GAIN IN OTHER ASSESSMENT YEAR S CANNOT OPERATE AS RES-JUDICATA AND AO IS NOT BOUND BY SUCH ORDERS ON THE GROUND OF ITA NO. 1946/AHD/16 [DCIT VS. SHRI VIJAY A. KESHWAN I] A.Y. 2013-14 - 14 - ESTOPPEL OF SOME SORT. WE THUS FIND OURSELVES IN C OMPLETE AGREEMENT WITH A VIEW TAKEN BY THE AO AND FIND LITTLE MERIT I N THE REASONING ADOPTED BY THE CIT(A) WHILE DISPLACING THE ACTION O F THE AO. IN THE RESULT, WE SET ASIDE THE ORDER OF THE CIT(A) AND AF FIRM THE ACTION OF THE AO. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 29/01/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 29/01/ 2019