Smt. Tara Mishra , Lucknow V. Addl. Commissioner of Income Tax, Lucknow

ITA 201/LKW/2012

• Counselvise Citation: 20123714 RSA 2012
• Duration Of Justice: 2 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 02-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 16-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ALOK MITRA
• Keywords: Gift; Business income; Opportunity of being heard; Additional evidence
• Section: 43(5)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.201/LKW/2012 ASSESSMENT YEAR:2008 - 09 ADDL.C.I.T., RANGE - 1, LUCKNOW. VS. SMT. TARA MISHRA, 5/8, VISHAL KHAND, GOMTI NAGAR, LUCKNOW. PAN:ANOPM1523F (RESPONDENT) (APPELLANT) SHRI ROHIT NANDAN SHUKLA, ADVOCATE APPELLANT BY SHRI ALOK MITRA, D. R. RESPONDENT BY 02/09/2014 DATE OF HEARING 11 /11/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, LUCKNOW DATED 20/01/2012 FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE UNDER THE FACT AND CIRCUMSTANCES OF THE CASE THE COURT BELOW ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFICER. 2. BECAUSE UNDER THE FACT AND CIRCUMSTANCES OF THE CASE CONFIRMATION OF ADDITION OF RS.73,94,350.00 CONSTITUTING SHORT TERM CAPITAL GAINS, AS INCOME FROM BUSINESS IS ARBITRARY, ILLEGAL AND BAD IN LAW. 2 3. BECAUSE THE ASSESSING OFFICER FAILED TO CONSIDER THE TWO PORTFOLIOS I.E. AN INVESTMENT PORTFOLIO COMPRISING OF SECURITIES WHICH ARE TO BE TREATED AS CA PITAL ASSETS AND A TRADING PORTFOLIO COMPRISING OF STOCK IN TRADE WHICH ARE TO BE TREATED AS TRADING ASSETS AND MERGED THE FACTS OF ONE PORTFOLIO WITH ANOTHER. 4. BECAUSE UNDER THE FACT AND CIRCUMSTANCES OF THE CASE THE COURT BELOW ERRED IN ESTIMATING THE ANNUAL RENTAL VALUE, FROM TWO HOUSE PROPERTY AS THE INCOME FROM HOUSE PROPERTY AT RS.2,88,000.00. 5. BECAUSE WITHOUT PREJUDICE TO ABOVE EVEN IF THE ASSESSMENT ORDERS ARE TO BE UPHELD AND THE ASSESSES IS TO BE TREATED AS A DEALER IN SHARES, HE MUST BE GIV EN THE OPTION OF VALUING THE CLOSING STOCK OF SHARES ON ANY OF THE RECOGNIZED METHODS. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ALTHOUGH THE GROUNDS RAISED ARE 6 BUT THE ISSUES ARE 2 ONLY. HE SUBMITTED THAT THE FIRST ISSUE IS REGARDING T HE INCOME DECLARED BY THE ASSESSEE UNDER THE HEAD SHORT TERM CAPITAL GAIN OF RS.73,94,350/ - , WHICH WAS ASSESSED BY THE ASSESSING OFFICER AS INCOME FROM BUSINESS AND THE SECOND ISSUE IS THAT THE ASSESSING OFFICER HAS ERRED IN LAW IN ESTIMATING THE ANNUAL RE NTAL VALUE FROM TWO HOUSE PROPERTY AS INCOME FROM HOUSE PROPERTY AT RS.2.88 LAC. 4. REGARDING THE FIRST ISSUE, AS PER GROUND NO. 1 TO 3, HE SUBMITTED THAT AS PER VARIOUS JUDICIAL PRONOUNCEMENTS AS NOTED IN THE WRITTEN SUBMISSIONS ON PAGE NOS. 1 TO 6, THE INCOME IS NOT ASSESSABLE AS BUSINESS INCOME AND THE SAME WAS CORRECTLY DECLARED BY THE ASSESSEE AS INCOME FROM SHORT TERM CAPITAL GAIN. IN ADDITION TO THESE JUDGMENTS, HE ALSO PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: ( I ) VINOD K. NEVATIA VS. ACIT, I.T.A. NO.181/MUM/2010 (I.T.A.T. MUMBAI) 3 ( II ) NAGINDAS P. SHETH (HUF) VS. ACIT, I.T.A. NO.961/MUM/2010, MUMBAI ( III ) CIT VS. GOPAL PUROHIT 228 CTR 582 (MUM) ( IV ) RADIALS INTERNATIONAL VS. ACIT, I.T.A. NO.485/2012 DATED 25/04/2014, HON'BLE DELHI HIGH COURT ( V ) SARNATH INFRASTRUCTURE (.) LTD. VS. ACIT [2010] 124 ITD 71 LKO 5. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THIS ISSUE WAS DECIDED BY LEARNED CIT(A) AGAINST THE ASSESSEE AS PER PARA 3.1 AND 3.2 OF HIS ORDER, WHICH ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 3.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT. HER CONTENTION THAT SHE IS NOT A SHARE BROKER OR A MEMBER OF STOCK EXCHANGE DOES NOT HAVE A BEARING ON THE ISSUE IN DISPUTE. IN ORDER TO HAVE INCOME FROM TRADING IN SHARES ONE DOES NOT HAVE TO BE NECESSARILY SHARE BROKER OR MEMBER OF STOCK EXCHANGE AND THIS ITSELF IS BORNE OUT AS WELL AS CONTRADICTED BY THE APPELLANT'S OWN ADMISSION THAT SHE HAS INCOME/LOSS IN SHARE TRADING. SIMILARLY, THE APPELLANT'S CONTENTIONS THAT THERE WERE NO DERIVATIVE TRANSACTIONS AND THERE WERE NO TRANSACTION WITHOUT DELIVERY ALSO DO NOT HAVE A BEARING ON THE ISSUE IN DISPUTE SINCE THESE ARE NOT THE ESSENTIAL COND ITIONS FOR BEING ENGAGED IN THE BUSINESS OF SHARE TRADING AS IT IS FURTHER CORROBORATED BY THE FACT THAT THE APPELLANT HERSELF HAS ADMITTED BUSINESS OF TRADING IN SHARES. IT MAY BE POINTED OUT HERE THAT IN THE AUDIT REPORT OF THE APPELLANT HER BUSINESS IS MENTIONED TO BE IN THE FUTURE AND OPTION SEGMENT. THE APPELLANT'S CONTENTION THAT SHE DID NOT HAVE ANY OFFICE OR ADMINISTRATIVE SET UP ALSO DOES NOT HAVE A BEARING ON THE ISSUE IN QUESTION SINCE EVEN WITHOUT ANY OFFICE OR ADMINISTRATIVE SET UP SHE HERSELF HAS ADMITTED HER BUSINESS IN SHARE TRADING. THE APPELLANT'S CONTENTION THAT SHE DID NOT INVEST IN SHARES OUT OF BORROWED FUNDS IS MERELY INDICATIVE AND IS NOT A DECISIVE FACTOR TO INFER THAT THE SHARES ACQUIRED NECESSARILY IMPLIED AND REPRESENTED INVESTMEN TS. THE 4 UTILIZATION OF BORROWED FUNDS OR OTHERWISE IS MERELY ONE OF THE INDICATORS HAVING SUGGESTIVE VALUE AND IT CANNOT BE APPLIED AS A CLINCHING TEST TO COME TO A DEFINITE CONCLUSION. ULTIMATELY ONE HAS TO GO BY THE OVERALL FACTS AND SURROUNDING CIRCUMST ANCES TO DRAW MOST LOGICAL INFERENCE SINCE INTENTION 'IS A STATE OF MIND'. IT IS UNDISPUTED THAT THE SHARES IN RESPECT OF WHICH THE APPELLANT CLAIMED TO HAVE EARNED SHORT TERM CAPITAL GAINS WERE HELD FOR FAIRLY SHORT DURATION NOT EXCEEDING EVEN ONE YEAR. T HE ACQUISITION AND SALE OF SHARES WITHIN THIS SHORT TIME FRAME IS FAIRLY INDICATIVE OF THE APPELLANT'S INTENTION TO TREAT AND DEAL WITH THESE SHARES AS STOCK IN TRADE. THE APPELLANT'S CONTENTION THAT THE SHARES ACQUIRED WERE POSSESSED FOR A FEW MONTHS AND NOT FEW DAYS DOES NOT REALLY ALTER THIS CONCLUSION. THE SHARES ARE NOT PERISHABLE COMMODITY THAT THEY HAVE TO BE SOLD WITHIN A FEW DAYS OF ACQUISITION IN ORDER TO BE CALLED STOCK IN TRADE. THIS ARGUMENT OF THE APPELLANT TO CONTEND THAT THE SHARES ACQUIRED CONSTITUTED INVESTMENTS IS, THEREFORE, NOT LOGICAL AND DOES NOT PROVE HER CONTENTION. IT IS ALSO UNDISPUTED THAT THE DIVIDEND INCOME ADMITTED APPELLANT AMOUNTS TO BARELY RS.1,000/ - ONLY WHICH IS A NEGLIGIBLE PERCENTAGE OF VALUE OF SHARES PURCHASED, AND THE SCALE OF TRANSACTIONS IN SHARES. IF RETURN ON INVESTMENTS IS TAKEN TO BE THE PRIME DETERMINANT OF AND CONSIDERATION BEHIND AN INVESTMENT THE VOLUMES TRANSACTED, DURATION OF HOLDING AND FREQUENCY OF SALE OF SHARES BY THE APPELLANT IS FAIRLY INDICATIVE THAT THE SHARES WERE ACQUIRED POSSESSED DEALT WITH NOT AS INVESTMENTS TO EARN DIVIDEND BUT AS STOCK IN TRADE AND THAT THE APPELLANT INTENDED TO EARN PROFIT ON SALE OF THESE SHARES AS PART OF HER REGULAR BUSINESS ACTIVITY. 3.2 IN VIEW OF THE DISCUSSION ABOVE, I DO NOT FIND ANY MERIT IN THE CLAIM OF THE APPELLANT THAT THE AMOUNT OF RS.73,94,350/ - CONSTITUTED SHORT TERM CAPITAL GAINS. THE AO HAS BROUGHT OUT THE RELEVANT FACTS ON RECORDS AND HE HAS LOGICALLY ANALYZED THESE FACTS TO DRAW THE CONCLUSIONS WHICH MOST READILY AND INEVITABLY FLOW FROM THE FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDINGLY, HIS ACTION IN TREATING THE CLAIM OF SHORT TERM CAPITAL GAINS AS PROFITS OF BUSINESS IS UPHELD. THE APPELLANT'S GROUND RAISED AGAINST THIS ACTION OF THE AO IS, THEREFORE , DISMISSED. 5 7. WE ALSO FIND THAT ON PAGE NOS. 5 TO 12 OF THE PAPER BOOK IS SETTLEMENTWISE SUMMARY FROM 29/03/2007 TO 27/03/2008. FROM THE SAME, WE FIND THAT THE TRANSACTION REGARDING SHARES OF APOLLO TYRE, DHANUS, GLOUSCOR, GLORY, MAGNUMV, MALUPAPER, M ATRAREAL, NAGARJUN FERTILIZER, PARSOLI, PATEL SAI, RAMINFO AND SURAJST WERE SQUARED OFF, WHICH MEANS THAT NO DELIVERY WAS TAKEN OR GIVEN IN RESPECT OF THESE SHARES AND THE TRANSACTIONS WERE SETTLED BY WAY OF SQUARE OFF. IN FACT, ANY PROFIT OR LOSS ARISIN G OUT OF SUCH TRANSACTION IS TO BE TREATED AS SPECULATION PROFIT OR LOSS AS PER SECTION 43(5) BUT IN ANY CASE, THE PROFIT OR LOSS ARISING OUT OF SUCH TRANSACTIONS CANNOT BE CONSIDERED UNDER THE HEAD INCOME FROM CAPITAL GAIN. THE ASSESSEE HAS INCLUDED SUCH PROFIT AND LOSS ALSO IN HER CLAIM UNDER THE HEAD CAPITAL GAIN. HENCE, AT THE FACE OF IT, THE CLAIM OF THE ASSESSEE IS NOT ACCEPTABLE AT LEAST IN RESPECT OF THESE SHARES. IN ADDITION TO THIS, OUT OF TOTAL CAPITAL GAIN DECLARED BY THE ASSESSEE, THE MAJOR GAIN IS IN RESPECT OF FEW SHARES, FOR EXAMPLE: SHARES OF MALU PAPER. AS PER THE DETAILS OF TRANSACTIONS IN SHARES OF THIS COMPANY, IT IS SEEN THAT 35,000 SHARES WERE PURCHASED ON 06/07/2007 AND THE SAME WERE SOLD OUT ON 9 TH JULY AND 12 TH JULY I.E. WITHIN A WEEK. AGAIN THE SHARES OF THE SAME COMPANY WERE PURCHASED ON 23 RD AUGUST 2007 TO THE EXTENT OF 20,000 SHARES AND THE SAME WERE ALSO SOLD OUT ON 12 TH SEPTEMBER 2007 I.E. ALSO WITHIN 20 DAYS. AGAIN 25000 SHARES OF THE SAME COMPANY WERE PURCHASED ON 23/11 /2007, 28,593 ON 26/11/2007, 7,036 ON 20/12/2007 AND 1,045 ON 04/01/2008. THESE SHARES WERE SOLD OUT ON VARIOUS DATES BETWEEN 10/01/2008 TO 17/01/2008. AGAIN THE SHARES OF THE SAME COMPANY WERE PURCHASED TO THE EXTENT OF 28,500 ON 24/01/2008 AND THE SAME WERE SOLD AFTER A FEW DAYS. THESE TRANSACTIONS GO TO SHOW THAT THIS IS NOT IN THE NATURE OF INVESTMENT BUT IN THE NATURE OF DEALING IN SHARES. AGAIN WE CONSIDER THE EXAMPLE OF DIFFERENT COMPANY SHARE I.E. MATRA REAL WHERE THE 6 ASSESSEE HAS SHOWN PROFIT O F RS.2.84 LAC. SHARES OF THIS COMPANY WERE PURCHASED ON 29/03/2007 AND SOLD OUT ON 26 TH AND 27 TH APRIL 2007 AND AGAIN THE SHARES OF THE SAID COMPANY WERE PURCHASED ON 11 TH AND 15 TH MAY 2007 AND SOLD OUT ON 5 TH AND 6 TH JULY 2007. AGAIN THE SHARES OF THE SAME COMPANY WERE PURCHASED ON 8 TH AUGUST 2007 AND SOLD OUT ON 13 TH , 14 TH AND 29 TH AUGUST 2007. SIMILARLY, THE ASSESSEE HAS DECLARED A PROFIT OF RS.1.76 LAC IN RESPECT OF SHARES OF PARSOLI. THE FIRST TRANSACTION IN THE SHARES OF THIS COMPANY IS PURCHASE ON 23/11/2007 AND 27/11/2007 OF 3,511 SHARES, WHICH WERE SOLD OUT ON 4 TH DECEMBER 2007. AGAIN THE SHARES OF THE SAME COMPANY WERE PURCHASED ON 11/12/2007 AND SOLD OUT ON 04/01/2008. THE TRANSACTIONS IN SHARES OF THIS COMPANY IS ALSO IN THE NATURE OF REGU LAR DEALING AND NOT IN THE NATURE OF INVESTMENT. THE ASSESSEE HAS ALSO DECLARED PROFIT OF RS.1.21 LAC IN THE SHARES OF PATINTLOG. THERE WAS PURCHASE OF 7,000 SHARES ON 19/12/2007 AND 24/12/2007, WHICH WERE SOLD OUT ON 31/12/2007 AND 04/01/2008. THE CASE S IN REGARD TO OTHER TRANSACTIONS OF PURCHASE AND SALES OF SHARES OF OTHER COMPANY ARE ALSO IN THE SAME NATURE. 8. NOW IN THE LIGHT OF THESE FACTS, WE EXAMINE THE APPLICABILITY OF VARIOUS JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE. 9. THE FIRST JUDG MENT CITED BY LEARNED A.R. OF THE ASSESSEE IS THE TRIBUNAL DECISION IN THE CASE OF VINOD K. NEVATIA VS. ACIT (SUPRA). IN THIS CASE, IT WAS NOTED IN PARA 11 THAT THE ASSESSEE HAS MAINTAINED SEPARATE BOOKS OF ACCOUNT AS WELL AS DEMAT ACCOUNTS IN RESPECT OF ITS TRADING ACTIVITY AND MAKING INVESTMENT IN SHARES. IN THE PRESENT CASE, THE FACTS ARE NOT SIMILAR BECAUSE IT IS NOT THE CASE OF THE ASSESSEE THAT THE ASSESSEE IS MAINTAINING SEPARATE BOOKS OF ACCOUNT AND SEPARATE DEMAT ACCOUNTS 7 FOR TRADING ACTIVITIES A ND INVESTMENT IN SHARES AND THEREFORE, THIS DECISION OF THE TRIBUNAL IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. 10. THE SECOND JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE IS THE TRIBUNAL DECISION IN THE CASE OF NAGINDAS P. SHETH (HUF) VS. ACIT (SUPRA). IN THIS CASE, A CLEAR FINDING IS GIVEN IN PARA 7 THAT THE ASSESSEE HAD NOT INDULGED IN ANY SQUARING UP OF THE TRANSACTIONS ON THE SAME DAY. IN THE PRESENT CASE, WE HAVE SEEN THAT IN MANY CASES, THE ASSESSEE HAS SQUARED UP TRANSACTIONS ON THE SA ME DAY. THEREFORE, THIS DECISION OF THE TRIBUNAL IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. 11. THE THIRD JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE IS THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT RENDERED IN THE CASE OF CIT VS. GOPAL PUROHIT ( SUPRA). IN THIS CASE, IT IS NOTED BY HON'BLE BOMBAY HIGH COURT THAT THE ASSESSEE WAS ENGAGED IN THE SAME TYPE OF ACTIVITIES OVER THE YEARS AND IN EARLIER YEARS, THE ASSESSEES STAND WAS ACCEPTED THAT THE ASSESSEE WAS ENGAGED IN TWO DIFFERENT TYPES OF TRAN SACTIONS I.E. INVESTMENT IN SHARES AND DEALING IN SHARES FOR THE PURPOSES OF BUSINESS. IT WAS THE CLAIM OF THE REVENUE BEFORE HON'BLE HIGH COURT THAT DIFFERENT VIEW SHOULD BE TAKEN IN THE YEAR UNDER CONSIDERATION SINCE THE PRINCIPLE OF RES JUDICATA IS NOT APPLICABLE TO ASSESSMENT PROCEEDINGS. IT IS ALSO NOTED THAT THE TRIBUNAL IN THAT CASE HELD THAT THERE OUGHT TO BE UNIFORMITY IN TREATMENT AND CONSISTENCY WHEN THE FACTS AND CIRCUMSTANCES ARE IDENTICAL, PARTICULARLY IN THE CASE OF THE ASSESSEE. UNDER THE SE FACTS, IT WAS HELD THAT THIS APPROACH OF THE TRIBUNAL CANNOT BE FAULTED. IN THE PRESENT CASE, THIS IS NOT THE CASE OF THE ASSESSEE THAT SIMILAR SET OF TRANSACTIONS WERE EARLIER ACCEPTED BY THE REVENUE AND IN THE PRESENT YEAR, THE REVENUE IS TAKING A DI FFERENT VIEW. HENCE, THIS JUDGMENT OF HON'BLE BOMBAY HIGH COURT IS NOT APPLICABLE. 8 12. THE NEXT JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE IS THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF RADIALS INTERNATIONAL VS. ACIT (SUPRA). I N THIS CASE, THE ISSUE WAS THAT AS TO WHETHER THE INVESTMENT IN SHARES THROUGH PORTFOLIO MANAGEMENT RESULTED IN GAINS TAXABLE AS CAPITAL GAINS OR AS BUSINESS INCOME. AS PER THE FACTS IN PARA 20, IT IS NOTED THAT ABOUT 71% OF THE TOTAL SHARES HAVE BEEN HEL D FOR A PERIOD LONGER THAN 6 MONTHS AND HAVE RESULTED IN AN ACCRUAL OF ABOUT 81% OF THE TOTAL GAINS TO THE ASSESSEE AND ONLY 18% OF THE TOTAL SHARES ARE HELD FOR A PERIOD LESS THAN 90 DAYS, RESULTING IN THE ACCRUAL OF ONLY 4% OF THE TOTAL PROFITS. THIS IS OBSERVED THAT IT SHOWS THAT A LARGE VOLUME OF THE SHARES PURCHASED WERE REFLECTED FROM THE HOLDING PERIOD, INTENDED TOWARDS THE END OF INVESTMENT. IN THE PRESENT CASE, WE HAVE SEEN THAT MAJORITY OF THE INVESTMENT AND GAIN ARE IN RESPECT OF THOSE SHARES W HICH WERE HELD FOR A PERIOD LESS THAN 90 DAYS AND THEREFORE, THE FACTS OF THE PRESENT CASE ARE DIFFERENT AND HENCE, THIS JUDGMENT IS NOT RENDERING ANY HELP TO THE ASSESSEE. 13. THE NEXT JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE IS THE TRIBUNAL DECISI ON IN THE CASE OF SARNATH INFRASTRUCTURE (.) LTD. VS. ACIT (SUPRA). AS PER THE FACTS OF THIS CASE, IT IS NOTED THAT THE ASSESSEE COMPANY WAS DEALING IN SHARES BOTH AS STOCK IN TRADE AS WELL AS INVESTMENT AND DURING RELEVANT ASSESSMENT YEAR, THE ASSESSEE S OLD CERTAIN SHARES ALLEGEDLY OUT OF INVESTMENT PORTFOLIO WHICH WERE HELD BY IT FOR TWO TO THREE YEARS AND THEREFORE, THE SURPLUS ARISING FROM SALE OF SHARES WAS SHOWN UNDER HEAD LONG TERM CAPITAL GAIN. SUCH CLAIM OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER IN THAT CASE AND THE GAIN WAS TREATED AS BUSINESS PROFIT. UNDER THESE FACTS, IT WAS HELD BY THE TRIBUNAL THAT THE GAIN IN QUESTION WAS TAXABLE AS CAPITAL GAIN. HENCE, WE FIND THAT 9 IN THAT CASE, THE GAIN IN QUESTION WAS IN RESPECT OF SAL E OF THOSE SHARES, WHICH WERE HELD BY THE ASSESSEE FOR 2 TO 3 YEARS WHEREAS IN THE PRESENT CASE, THE MAJORITY OF SHARES WERE HELD FOR LESS THAN 90 DAYS AND HENCE, IN THE FACTS OF THE PRESENT CASE, THIS TRIBUNAL DECISION IS NOT APPLICABLE. 14. IN THE WRITTEN SUBMISSIONS FROM PAGE NOS. 1 TO 6, LEARNED A.R. OF THE ASSESSEE HAS PLACED RELIANCE ON THE SAME JUDGMENTS OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GOPAL PUROHIT (SUPRA) AND NAGINDAS P. SHETH (HUF) VS. ACIT (SUPRA), WHICH ARE ALREADY CONS IDERED BY US AND HENCE, IT IS SEEN THAT IN THE FACTS OF THE PRESENT CASE, NONE OF THE JUDGMENTS IS RENDERING ANY HELP TO THE ASSESSEE. AS PER THE FACTS DISCUSSED ABOVE, IT IS SEEN THAT THE MAJORITY SALE AND MAJORITY PROFIT IS IN RESPECT OF THOSE SHARES, W HICH WERE HELD FOR LESS THAN 90 DAYS AND THEREFORE, AS PER THE JUDGMENT OF HON'BLE DELHI HIGH COURT CITED BY LEARNED A.R. OF THE ASSESSEE HAVING BEEN RENDERED IN THE CASE OF RADIALS INTERNATIONAL VS. ACIT (SUPRA), SUCH GAIN IS TO BE ASSESSED AS BUSINESS PR OFIT AND NOT AS SHORT TERM CAPITAL GAIN. HENCE, AS PER THE ABOVE DISCUSSION, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A) ON THIS ISSUE. ACCORDINGLY, GROUND NOS. 1 TO 3 ARE REJECTED. 15. REGARDING GROUND NO. 4, LEARNED A.R. OF THE ASSESSEE SUBMITTED ADDITIONAL EVIDENCE AS PER RULE 18(4) OF THE APPELLATE TRIBUNAL RULES, 1963. AS PER THIS ADDITIONAL EVIDENCE, LEARNED A.R. OF THE ASSESSEE IS TRYING TO ESTABLISH THAT THE PROPERTY IN QUESTION WAS NOT OWNED BY THE ASSESSEE. AS PER THE COPY OF GIFT DEED DATED 10/01/2003 OF THE HOUSE PROPERTY 5/8, VISHAL KHAND, GOMTI NAGAR, LUCKNOW, THIS IS THE SUBMISSION OF LEARNED A.R. OF THE ASSESSEE THAT THIS PROPERTY WAS GIFTED BY SHRI A. K. MISHRA, SON OF THE ASSESSEE TO HIS FATHER SHRI S. P. MISHRA, HUSBAND OF THE 10 ASSESSEE AND THEREFORE, THE ASSESSEE WAS NOT THE OWNER OF THIS PROPERTY. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE BEFORE US THAT THIS EVIDENCE COULD NOT BE FILED BEFORE CIT(A) BECAUSE HE PASSED THE ORDER EX - PARTE. CONSIDERING THESE FACTS, WE SET ASIDE THE ORDER OF CIT(A) ON THIS ISSUE AND RESTORE THIS ISSUE BACK TO HIS FILE FOR FRESH DECISION AFTER CONSIDERING THIS EVIDENCE FURNISHED BEFORE US. THE LEARNED A.R. OF THE ASSESSEE SHOULD FURNISH THE COPY BEFORE THE CIT(A) ALSO AND CIT(A) SHOULD PASS NECESSARY ORDER AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. GROUND NO. 4 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 /11/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR