FARNWORTH INVESTMENT ADVISORS P. LTD, MUMBAI V. OTP 1(1)-3, MUMBAI

ITA 2997/MUM/2011

• Counselvise Citation: 299719914 RSA 2011
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 07-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 15-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income; Business expenditure; Salary income; Opportunity of being heard; Question of law
• Section: 234B; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI R.S.SYAL , A M TA NO. 4075 / M UM / 20 1 0 & TA NO. 2 9 97 / MUM /20 1 1 ( ASSESSMENT YEAR : 200 6 - 07 & 2007 - 08 ) M/S FARNWORTH INVESTMENT ADVISORS PVT. LTD., 41, ADVENT, 4 TH FLOOR, J. BHONSALE MARG, MUMBAI - 400 021 . VS. ITO 1(1) - 3 , MUMBAI PAN/GIR NO. : A AA CH 8870 A ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. ASHOK PATIL /REVENUE BY : MR. ANURAG SHRIVASTAVA DATE OF HEARING : 7 TH AUGUST , 201 3 DATE OF PRONOUNCEMENT : 21 ST AUGUST, 2013 O R D E R P ER SHRI R.K.G UPTA, JM : THIS COMMON ORDER SHALL GOVERN THE DISPOSAL OF TWO APPEALS, WHICH HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A ) , MUMBAI FOR ASSESSMENT YEARS 2006 - 07 & 2007 - 08, RESPECTIVELY . 2 . SINCE COMMON ISSUES ARE INVOLVED IN BOTH THE CASES, THEREFORE, FOR THE SAKE OF CONVENIENCE, BOTH THE CASES HAVE BEEN HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. I TA NO S . 4075/10&2 9 97/11 2 3 . THE FIRST ISSUE I N BOTH THE APPEALS IS AGAINST NOT ALLOWIN G SHORT TERM CAPITAL GAIN OF RS. 11,91,247/ - FOR ASSESSMENT YEAR 2006 - 07 AND RS. 5,16,516/ - FOR ASSESSMENT YEAR 2007 - 08 AS THE AO AND LEARNED CIT(A) HAS TREATED THE GRAIN AS BUSINESS IN NATURE. 4 . DURING THE ASSES SMENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE HAS MADE FREQUENT PURCHASES AND SALE OF SHARES AND AROUND 83 TRANSACTIONS HAVE BEEN MADE FOR ASSESSMENT YEAR 2006 - 07 AND SIMILARLY FOR ASSESSMENT YEAR 2007 - 08. ACCORDINGLY, HE TREATED THE GAIN ON ACCOUNT OF SALE OF SHARES AS BUSINESS INCOME. IN APPEAL, LEARNED CIT(A) HAS CONFIRMED THE ACTION OF THE AO. 5. AFTER CONSIDERING THE ORDER OF THE AO AND CIT(A) , WE FIND THAT THE ASSESSEE DESERVES TO SUCCEED ON THIS ISSUE FOR BOTH OF THE YEARS. ON SIMILAR FACTS IN T HE CASE OF TIKUCHAND D. JOGANI, DECIDED IN ITA NO. 2285/M/2010 O F EVEN DATED , THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE FOLLOWING FINDINGS OF THE TRIBUNAL IN THE AFORESAID CASE HAVE BEEN REPRODUCED HEREUNDER : - 7 . AFTER CONSIDERING THE ORD ER OF AO, CIT(A) AND THE SUBMISSION OF THE ASSESSEE, WE FIND THAT THE ASSESSEE DESERVES TO SUCCEED ON THE ISSUE INVOLVED. IT IS SEEN THAT THE ASSESSEE HAS SHOWN ALL THE PURCHASES UNDER THE INVESTMENT PORTFOLIO. IT IS FURTHER SEEN THAT THE LONG TERM CAPITAL GAIN SHOWN BY THE ASSESSEE HAS BEEN ACCEPTED BY THE AO HIMSELF. UNDER THE PROVISION OF LAW , IT IS CLEARLY PROVIDED THAT IF THE HOLDING OF SHARE IS MORE THAN ONE YEAR THEN THE GAIN ON ACCOUNT OF SALE OF SHARES HAS TO BE TREATED AS LONG TERM CAPITAL GAIN AN D IF HOLDING PERIOD OF SHARES ARE LESS THAN ONE YEAR THEN THE GAIN ON ACCOUNT OF SALE OF SHARES HAS TO BE TREATED AS SHORT TERM CAPITAL GAIN. NO WHERE IT IS PROVIDED THAT IF THE TRANSACTIONS ARE FREQUENT AND VOLUMINOUS THEN THE CLAIM OF THE ASSESSEE IS NOT ALLOWABLE AS SHORT TERM CAPITAL GAIN OR LONG TERM CAPITAL GAIN AS THE CASE MAY BE . THE ONLY QUESTION WHICH IS TO BE EXAMINED AND SEEN BY THE AO AS TO WHAT TREATMENT HAS BEEN GIVEN BY THE ASSESSEE IN RESPECT TO PURCHASE OF SHARES. WHETHER THE PURCHASE OF S HARES ARE SHOWN I TA NO S . 4075/10&2 9 97/11 3 UNDER THE HEAD STOCK - IN - TRADE OR UNDER THE HEAD INVESTMENTS. IF PURCHASES HAVE BEEN SHOWN UNDER THE HEAD STOCK - IN - TRADE THEN THE SALE TRANSACTIONS HAS TO BE TREATED AS BUSINESS TRANSACTIONS AND IF THE SALES HAVE BEEN EFFECTED FROM INVESTMEN T ACCOUNT THEN THE GAIN HAS TO BE TREATED AS LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN, AS THE CASE MAY BE. IN THE PRESENT CASE, THE ASSESSEE HAS SHOWN ALL THE PURCHASES UNDER THE HEAD INVESTMENT PORTFOLIO, THEREFORE, IN OUR CONSIDERED VIEW, THE GA IN ON ACCOUNT OF SALE OF SHARES HAS TO BE TREATED AS SHORT TERM CAPITAL GAIN ON THE FACTS OF THE PRESENT CASE. SIMILAR ISSUE CAME BEFORE THE E - COURT OF NAGPUR BENCH IN THE CASE OF SHRI SANJAY ISHWARLAL RANKA , DECIDED IN ITA NO. 161/NAG/2012, VIDE ORDER DATE D 8 - 2 - 2013 . THE FINAL FINDINGS OF THE TRIBUNAL HAS BEEN RECORDED IN PARAS 9 & 10, WHICH ARE AS UNDER : - 9 . WE FURTHER NOTED THAT AGAINST THE ORDER OF CIT(A) FOR ASSESSMENT YEAR 2006 - 07, THE DEPARTMENT PREFERRED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL DISCUSSING THE ISSUE IN DETAIL AND PLACING RELIANCE ON VARIOUS DECISIONS OF THE TRIBUNAL I.E. IN THE CASE OF DINESHBHAI C. PATEL (HUF),PASSED IN ITA616/NAG/2008, VIDE ORDER DATED 5 - 6 - 2009 ; GOPAL PUROHIT, 20 DTR (MUM)(TRIB) 99 ; THE DECISION IN THE CASE OF CIT VS. V.A.TRIVEDI, 172 ITR 95 (MUM) AND THE DECISION OF THE HONBLE HIGH COURT IN THE CASE OF CIT VS. GOPAL PUROHIT, 228 CTR 582 , ALLOWED THE ISSUE IN FAVOUR OF ASSESSEE. THE FINDINGS OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2006 - 07 HAVE BEEN RECORDED IN PARA 12 TO 16, WHICH ARE AS UNDER: - 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND, PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE CASE LAW AS HAS BEEN CITED BEFORE US. WE FIN D THAT IN THE CASE OF CIT (CENTRAL), CALCUTTA VS ASSOCIATED INDUSTRIAL DEVELOPMENT COMPANY (P) LTD. (82 - ITR - 586), THE HONBLE SUPREME COURT HAS HELD AS UNDER: WHETHER A PARTICULAR HO/DING OF SHARES IS BY WAY OF IN VESTMENT OR FORMS PART OF THE STOCK - IN - T RADE IS A MATTER WHICH IS WITHIN THE KNOWLEDGE OF THE ASSESSEE WHO HOLDS THE SHARES AND HE SHOULD, IN NORMAL CIRCUMSTANCES, BE IN A POSITION TO PRODUCE EVIDENCE FROM HIS RECORDS AS TO WHETHER HE HAS. MAINTAINED ANY DISTINCT/ON BETWEEN THOSE SHARES WHICH AR E HIS STOCK - IN - TRADE AND THOSE WHICH ARE HELD BY WAY OF IN VESTMENT. 12.1 IN THE CASE OF CIT, BOMBAY VS H HOLCK LARSEN (160 - ITR - 67), THE ORDER TO DETERMINE WHETHER ONE WAS A DEALER IN SHARES OR AN INVESTOR, THE QUESTION WAS NOT WHETHER THE TRANSACTION OF BUYING AND SELLING THE SHARES LACKS THE ELEMENT OF TRADING, BUT WHETHER THE LATER STAGES OF THE WHOLE OPERATION SHOW THAT THE FIRST STEP THE PURCHASE OF THE SHARES WAS NO KEN AS, OR IN THE COURSE OF A TRADING TRANSACTION. THE TOTALITY OF ALL THE FACT S WILL HAVE TO BE BORNE IN MIND AND THE CORRECT LEGAL PRINCIPLES APPLIED TO THESE. IF ALL THE RELEVANT FACTORS HAVE BEEN TAKEN INTO CONSIDERATION AND I TA NO S . 4075/10&2 9 97/11 4 THERE HAS BEEN NO MISAPPLICATION OF THE PRINCIPLES OF LAW, THEN THE CONCLUSION ARRIVED AT BY THE TRIBUNAL CANNOT BE INTERFERED WITH BECAUSE THE INFERENCE QUESTION OF LAW, IF SUCH AN INFERENCE WAS A POSSIBLE ONE, SUBJECT, HOWEVER, THAT ALL THE RELEVANT FACTORS HAVE BEEN DULY WEIGHED AND THE CONSIDERED BY THE TRIBUNAL, THE INFERENCE REACHED BY THE TRIBUNAL SHOUL D NOT BE INTERFERED WITH. 13. IN VIEW OF THE AFORESAID DECISIONS, WE ARE OF THE VIEW THAT WHETHER THE PROFIT FROM THE SHARES IS A CAPITAL GAIN OR BUSINESS INCOME - WHETHER THE SHARES ARE HELD BY THE ASSESSEE AS INVESTMENTS OR - WHETHER THE SHARES ARE PU RCHASED WITH AN INTENTION TO KEEP THEM - WHETHER THE SHARES PURCHASED WITH AN INTENTION TO SELL; - WHETHER THE SHARES WERE PURCHASED WITH AN INTENTION TO EARN THE PROFIT IN THE SHORT TERM; - WHETHER THE SHARES ARE HELD TO MAXIMIZE THE RETURN; - WHETHER THE SHARES HAVE BEEN PURCHASED FROM THE PRIMARY MARKET; - WHETHER THE SHARES HAVE BEEN PURCHASED FROM THE SECONDARY MARKET; - WHETHER THE SHARES HAVE BEEN PURCHASED BY SUBSCRIPTION TO PUBLIC - WHETHER THE SHARES HAVE BEEN HELD FOR FAIRLY LONG PERIOD, AND - WHET HER THE SHARES ONCE SOLD HAVE NEVER BEEN RE - PURCHASED 14. WE NOTED THAT IN THE CASE OF CIT VS V A TRIVEDI 172 ITR 95 (BORN) HONBLE JURISDICTION HIGH COURT HAS CLEARLY LAID DOWN UNDER PARA 12 OF THE ORDER THAT THE ONUS OF ESTABLISHING THAT A PURCHASE IS M ADE WITH THE INTENTION TO TRADE IS ON THE REVENUE. 15. WE NOTED THAT THE MAIN CONTENTION OF THE REVENUE IN TREATING THE GAIN TO BE THE INCOME FROM BUSINESS IS THE NUMBER OF TRANSACTIONS AND THE PERIOD OF THE HOLDING BY THE ASSESSEE. THE PERIOD OF THE HOLD ING AND NUMBER OF TRANSACTIONS CANNOT BE THE ONLY BASIS TO DETERMINE WHETHER THE ASSESSEE HAS CARRIED OUT THE BUSINESS IN SHARES TRANSACTIONS. IT MAY BE ONE OF THE RELEVANT CONSIDERATION BUT CANNOT BE THE MAIN CONSIDERATION FOR DECIDING WHETHER THE ASSESSE E IN THIS CASE IS ENGAGED IN A BUSINESS OR NOT. WE HAVE TO LOOK INTO ALL THE SURROUNDING CIRCUMSTANCES. THIS IS A FACT ON RECORD THAT THE ASSESSEE IN THIS CASE IS ENGAGED IN THE EMPLOYMENT AND HAS DERIVED THE SALARY INCOME. OUT OF THE SURPLUS FUND, HE INVE STED INTO THE SHARES AND THE UNITS AND THOSE SHARES AND UNITS HAS DULY BEEN SHOWN BY THE ASSESSEE AS INVESTMENT IN HIS BALANCE SHEET IN THE EARLIER YEAR AS WELL AS DURING THE YEAR. IN THE EARLIER YEAR ALSO, THE ASSESSEE DERIVED THE INCOME ON THE SALE OF TH E SHARES, WHICH I TA NO S . 4075/10&2 9 97/11 5 HAS BEEN RETURNED BY THE ASSESSEE AS CAPITAL GAIN AND REVENUE HAS DULY ACCEPTED THE SAME. THE ASSESSEE WAS NOT HOLDING THE SHARES OF THE UNITS AS A STOCK IN TRADE. THIS FACT IS ALSO NOT DENIED BY THE REVENUE. THE PERIOD OF HOLDING ITSELF HA S BEEN TREATED BY THE LEGISLATURE TO BE A RELEVANT CONSIDERATION FOR DETERMINING WHETHER THE CAPITAL GAIN DERIVED IS A LONG TERM CAPITAL GAIN OR A SHORT TERM CAPITAL GAIN. THERE IS NO PROVISION UNDER THE INCOME - TAX ACT WHICH HAS PROVIDED THAT IN CASE THE A SSESSEE IS HOLDING THE SHARES FOR A LESSER PERIOD THAN THE ONE PRESCRIBED, IT WILL BE REGARDED TO BE THE BUSINESS INCOME. DIVIDING THE CAPITAL GAIN INTO TWO PARTS I.E. THE SHORT TERM GAIN OR THE LONG TERM GAIN ITSELF PROVE THAT THE PERIOD OF THE HOLDING CA NNOT BE THE CRITERIA FOR DETERMINING WHETHER THE PROFIT DERIVED BY THE ASSESSEE IS A LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN. 16. THE CIT(A), WE NOTED IN THIS CASE WHILE ALLOWING THE APPEAL OF THE ASSESSEE HAS RELIED ON THE DECISION OF THE ITAT NAGPUR BENCH IN THE CASE OF DINESHBHAI C. PATEL (HUF) IN 1TA NO.616/2008, WHICH CONFIRMED THE DECISION OF THE C1T(A), THE COPY OF THE DECISION WAS FILED BEFORE US. THE APPEAL AGAINST THE DECISION OF THE NAGPUR BENCH IN THE CASE OF DINESHBHAI C. PATIL (SUPR A) HAS BEEN DISMISSED BY THE HIGH COURT VIDE ORDER DATED 28 10 2010 HOLDING THAT NO SUBSTANTIAL POSITION ARISE AND THE TRIBUNAL, ON THE BASIS OF THE MATERIAL ON RECORD, HOLD THAT THE SHARES WERE PURCHASED BY THE ASSESSEE AS INVESTMENT AND THE GAIN ARISING ON SALE OF THOSE SHARES WERE ALLOWABLE TO BE TAXED AS CAPITAL GAIN. IT IS NOT DENIED THAT IN THIS CASE ALSO, THE ASSESSEE WAS HOLDING THE SHARES AS INVESTMENT. HOLDING OF THE SHARES AS INVESTMENT ITSELF PROVE THE INTENTION OF THE ASSESSEE AS REGARDS TO THE NATURE OF THE TRANSACTION. HAD THE SHARES BEEN THE BUSINESS ASSETS, IT WOULD HAVE SHOWN BY THE ASSESSEE AS A STOCK IN TRADE. APPARENT IS REAL, IF THE REVENUE FEELS THAT THE INTENTION OF THE ASSESSEE WAS NOT TO HOLD THE SHARES AS INVESTMENT. THE ONUS IN OU R OPINION IS ON THE REVENUE TO PROVE THAT APPARENT IS NOT REAL. NO EVIDENCE WAS BEING PLACED OR BROUGHT TO OUR KNOWLEDGE BY THE LD. D.R. WHICH MAY PROVE THAT THE INTENTION OF THE ASSESSEE WAS NOT TO HOLD THE SHARES AS INVESTMENT. IT IS ALSO A FACT THAT THE ASSESSEE DERIVED THE DIVIDEND INCOME AND HAS ALSO MADE THE INVESTMENT IN THE SHARES NOT OUT OF THE BORROWED FUNDS, BUT OUT OF ITS OWN SURPLUS FUNDS. THE CIT(A) WHILE ALLOWING THE APPEAL OF THE ASSESSEE HAS EXTENSIVELY DEALT WITH THE VARIOUS FACTORS AS WEL L AS VARIOUS CASE LAWS TO ARRIVE AT A FINDING THAT THE SHARES WERE HELD BY THE ASSESSEE AS A CAPITAL INVESTMENT AND NOT AS STOCK IN TRADE. HE HAS ALSO RELIED ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF CIT VS. DINESHBHAI C. PATEL (SUPRA). IT IS NOT DE NIED THAT THE FACTS INVOLVED IN THIS CASE IN THE CASE OF DINESHBHAI C. PATEL (SUPRA) ARE SIMILAR TO THE FACTS IN THE CASE OF THE ASSESSEE. SIMILARLY, THE FACTS INVOLVED IN THE CASE OF GOPAL PUROHIT VS. JC1T 20 DTR 99 (MUMBAI) WERE ALSO I TA NO S . 4075/10&2 9 97/11 6 THE SAME AS IN THE C ASE OF THE ASSESSEE. IN ALL THOSE CASES, THE TRIBUNAL TOOK THE VIEW THAT PERIOD OF HOLDING CANNOT BE THE BASIS TO DETERMINE WHETHER THE SHARE TRANSACTION ENTERED INTO BY THE ASSESSEE IS A BUSINESS INCOME OR CAPITAL GAIN. IN THIS CASE ALSO, WE NOTED THAT TH E ASSESSING OFFICER HAS BUILT UP HIS CASE MAINLY ON THE BASIS O PERIOD OF HOLDING AND ON THAT BASIS, HE TOOK THE VIEW THAT THE SHARES HELD FOR A SHORT PERIOD OR FOR A NUMBER OF DAYS WOULD NOT BE CAPITAL GAIN. IN OUR OPINION, NO INTERFERENCE IS CALLED FOR I N THE ORDER OF THE CIT(A). THE CIT(A) HAS RIGHTLY TAKEN THE VIEW THAT THE DECISION OF THIS TRIBUNAL IN ITA NO.616/2008 IN THE CASE OF ACIT VS. DINESHBHAI C. PATEL (HUF) IS CLEARLY APPLICABLE IN THE CASE OF THE ASSESSEE. THE DECISION OF THE COORDINATE BENCH WHICH HAS BEEN APPROVED BY THE HONBLE JURISDICTIONAL HIGH COURT IS BINDING ON US. WE CANNOT TAKE A DIFFERENT VIEW. WE NOTED THAT THE NAGPUR BENCH OF THIS TRIBUNAL IN THE CASE OF DINESHBHAI C. PATEL I (SUPRA) HAS FOLLOWED THE DECISION OF GOPAL PUROHIT VS . JCIT (SUPRA), THAT DECISION HAS ,ALSO BEEN APPROVED BY THE HONBLE JURISDICTIONAL HIGH COURT AND SLP AGAINST THAT DECISION HAS BEEN DISMISSED BY THE SUPREME COURT WE ACCORDINGLY, CONFIRM THE ORDER OF THE CIT(A) AND DISMISS BOTH THE APPEALS. 10 . SIMILA R FACTS ARE INVOLVED FOR THE ASSESSMENT YEAR 2007 - 08, THE YEAR UNDER CONSIDERATION. THEREFORE, WE SEE NO REASON TO INTERFERE IN THE FINDING OF THE LEARNED CIT(A), WHO ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEES FOLLOWING THE DECISION OF ITS PREDECESSOR FO R ASSESSMENT YEAR 2006 - 07 AND THE SAME HAS BEEN CONFIRMED BY THE TRIBUNAL AS STATED ABOVE. ACCORDINGLY, WE CONFIRM THE ORDER OF THE CIT(A) IN BOTH THE CASES. 8. SINCE FACTS ARE SIMILAR IN THE PRESENT CASE, THEREFORE, IN VIEW OF THE FACTS AND CIRCUMSTANCE S OF THE CASE AND IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI SANJAY ISHWARLAL RANKA (SUPRA) , WE ALLOW THE ISSUE IN FAVOUR OF THE ASSESSEE AND DIRECT THE AO TO TREAT THE GAIN ON ACCOUNT OF SALE OF SHARES AS SHORT TERM CAPITAL GAIN. 6 . IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE CASE OF TIKUCHAND D. JOGANI (SUPRA) , WE ALLOW THIS GROUND IN FAVOUR OF THE ASSESSEE FOR BOTH OF THE YEARS AS FACTS ARE SIMILAR. 7 . THE SECOND GROUND RELATES TO CONFIRMING THE DISALLOWANCE MADE BY THE AO UNDER SECTION 14A OF THE ACT . I TA NO S . 4075/10&2 9 97/11 7 7.1 THIS ISSUE REQUIRES TO SET ASIDE TO DECIDE THE SAME AFRESH IN THE LIGHT OF THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. LTD. VS . DCIT, REPORTED IN (2010) 328 ITR 081 (BOM) AS THE RULE 8D IS APPLICABLE FROM ASSESSMENT YEAR 2008 - 09. THE YEAR S UNDER CONSIDERATION IN BOTH THE APPEALS ARE ASSESSMENT YEAR 2006 - 07 & 2007 - 08 AND RULE 8D IS NOT APPLICABLE FOR THE SE YEAR S UNDER CONSIDERAT ION AS HELD BY THE H O N BLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. LTD. (SUPRA) . ACCORDINGLY, WE SET ASIDE THIS ISSUE TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. GROUND NO S . 3 , 4 & 5 RAISED IN THE APPEAL FOR ASSESSMENT YEAR 2006 - 07 ARE AGAINST NOT ADJUSTING THE LOSS OF RS. 1,28,897/ - . 8.1 IT WAS SUBMITTED BY THE LEARNED AR THAT THE AO HAS DISMISSED THIS ISSUE RAISED IN THESE GROUNDS BY OBSERVING THAT THE SAME IS NOT ARISING OUT OF THE ORDER OF THE AO, WHICH IS I NCORRECT . ACCORDINGLY, IT WAS SUBMITTED THAT THIS CAN BE SENT BACK TO THE FILE OF THE AO FOR CONSIDERING THE AFRESH. 8.2 LEARNED DR DID NOT OBJECT TO THE CONTENTION OF THE LEARNED AR. 8.3 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THIS ISSUE TO THE FILE OF THE AO FOR DECIDING IT AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. I TA NO S . 4075/10&2 9 97/11 8 9 . THE NEXT ISSUE IN THE APPEAL OF THE ASSESSEE FOR ASSESSMEN T YEAR 2006 - 07 RELATES TO CHARGING OF INTEREST UNDER SECTION 234B & C, WHICH IS CONSEQUENTIAL IN NATURE AND IT DOES NOT REQUIRE ANY SEPARATE ADJUDICATION. 10 . THERE IS NO OTHER GROUND FOR ASSESSMENT YEAR 2006 - 07 . 11 . GROUND NO. 3 IN THE APPEAL OF THE ASS ESSEE FOR THE ASSESSMENT YEAR 2007 - 08 IS AGAINST TREATING A SUM OF RS. 13,287/ - BEING THE SPECULATION INCOME. 11.1 IT WAS SUBMITTED THAT THIS ISSUE ALSO CAN BE SENT BACK FOR DECIDING THE SAME AFRESH AS BOTH THE LOWER AUTHORITIES HAVE NOT CONSIDERED THE ISS UE IN RIGHT PERSPECTIVE. 11.2 LEARNED DR ALSO DID NOT OBJECT THE CONTENTION OF THE LEARNED AR. 11.3 IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THIS ISSUE TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 12. GROUND NOS. 4 & 5 RELATE TO NOT CONSIDERING THE CAPITAL GAIN OF RS. 72,437/ - AND DISALLOWANCE OF BUSINESS EXPENSES OF RS. 3,07,616/ - . 12.1 W E HAVE DECIDED THE ISSUE IN RESPECT TO SHORT TERM CAPITAL GAIN . I N RESPECT TO I SSUE OF RS. 13,287/ - BEING SPECULATION INCOME , WE HAVE RESTORED THE SAME TO THE FILE OF THE AO. T HESE GROUNDS SEEM TO BE RELATED TO THE ABOVE TWO GROUNDS, THEREFORE, WE RESTORE TH ESE ISSUE S TO I TA NO S . 4075/10&2 9 97/11 9 THE FILE OF THE AO FOR PASSING A FRESH ORDER AFTER AFFORDING REA SONABLE OPPORTUNITY OF BEING HEARD. 13. GROUND NO. 6 IS IN RESPECT TO CHARGING OF INTEREST UNDER SECTION 234B & C , WHICH IS CONSEQUENTIAL IN NATURE, DOES NOT REQUIRE ANY SEPARATE ADJUDICATION. 14 . RESULTANTLY , APPEAL S OF THE ASSESSEE ARE ALLOWED IN PART AND PARTLY FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF AUG . 201 3 . SD/ - ( ) ( R.S.SYAL ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 21/08 / 2013 /PKM , PS COPY OF THE ORDER FORWARDE D TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE C I T(A) , MUMBAI . 4. / C I T 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. / /TRUE COPY// / BY ORDER, ( /ASSTT. REGISTRAR) / ITAT, MUMBAI