ANAHAITA NALIN SHAH, MUMBAI V. ASST CIT RG 4(1), MUMBAI

ITA 301/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3971 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-06-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 12-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJUKTA CHOW DHURY
• Keywords: Business income; Earning of tax free income; Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI .. , ! , '# ' $ BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO.301/MUM/2012 ( & ' (' & ' (' & ' (' & ' (' / / / / ASSESSMENT YEAR: 2008-09) ANAHAITA NALIN SHAH 1/1A, BIRLA MANSION, 134, N. M. ROAD, FORT, MUMBAI-400 023 & & & & / VS. ASST. CIT, RANGE 4(1), 6 TH FLOOR, INCOME TAX OFFICE, MAHARSHI KARVE ROAD, MUMBAI-400 001 ) ' # ./ * ./ PAN/GIR NO. AANPS 9303 H ( )+ / APPELLANT ) : ( ,-)+ / RESPONDENT ) )+ . ' / APPELLANT BY : SHRI PRAMOD KUMAR PARIDA & SHRI SANJUKTA CHOWDHURY ,-)+ / . ' / RESPONDENT BY : SHRI MANOJ KUMAR & / 01# / // / DATE OF HEARING : 20.06.2013 2 ( / 01# / DATE OF PRONOUNCEMENT : 24.07.2013 '3 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-8, MUMBAI (CIT(A) FOR SHO RT) DATED 27.12.2011, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSES SMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2008-09 VIDE ORDER DATED 27.12.2010. 2 ITA NO.301/MUM/2012 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. ASST. CIT 2. THE APPEAL RAISES THREE ISSUES, PER ITS FIRST TH REE GROUNDS; GROUNDS NOS. 4 & 5 BEING GENERAL IN NATURE, WARRANTING NO ADJUDICATION, AND WHICH WERE EVEN OTHERWISE NOT PRESSED BY THE LD. AR, THE ASSESSEES COUNSEL, DURING THE C OURSE OF THE HEARING. 3.1 THE FIRST GROUND IS IN RESPECT OF THE ASSESSMEN T OF INCOME ARISING TO THE ASSESSEE ON THE SALE OF SHARES AS BUSINESS INCOME AS AGAIN ST THE SHORT TERM CAPITAL GAIN (STCG) RETURNED BY THE ASSESSEE. THE LD. AR WOULD SUBMIT T HAT THE MATTER IS TO BE TREATED AS COVERED IN VIEW OF THE ASSESSMENT ORDERS PASSED U /S. 143(3) OF THE ACT IN ITS CASE FOR THE IMMEDIATELY PRECEDING YEARS, BEING A.YS. 2004-05 TO 2007-08, IN WHICH THE ASSESSING OFFICER (A.O.) HAS ACCEPTED THE ASSESSEES CLAIM OF STCG, ADVERTING OUR ATTENTION TO THE COPIES THEREOF PLACED ON RECORD (PB/PGS.16-28). IN FACT, THESE ORDERS WERE PASSED IN THE SECOND ROUND, I.E., ON THE MATTER HAVING BEEN SET A SIDE BY THE TRIBUNAL BACK TO THE FILE OF THE A.O. FOR A FRESH ADJUDICATION ON THIS ISSUE. TH E CONSOLIDATED ORDER DATED 31.01.2012 BY THE TRIBUNAL FOR THE RELEVANT YEARS IS ALSO PLAC ED ON RECORD (PB PGS.1-15). BOTH THE A.O. AS WELL AS THE LD. CIT(A) VIDE THEIR RESPECTIV E ORDERS IN THE INSTANT CASE HAVE IN FACT RELIED ON THE ASSESSMENTS FOR THE SAID YEARS AS ORI GINALLY MADE, WHICH WOULD CLARIFY THAT THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES O F THE CASE FOR THE CURRENT YEAR, I.E., WITH REFERENCE TO THAT OBTAINING FOR THE SAID YEARS. THE SPECULATION PROFIT EARNED BY THE ASSESSEE, I.E., IN RESPECT OF NON DELIVERY BASED TR ANSACTIONS, AT RS.5.78 LACS, HAS BEEN DULY RETURNED BY THE ASSESSEE AS HER BUSINESS INCOME. AC CORDINGLY, IT WAS PRAYED THAT, LIKEWISE, THE A.O. BE DIRECTED TO TREAT THE ASSESSE E AS AN INVESTOR, ACCEPTING THE ASSESSEES CLAIM OF THE SAID GAIN AS BEING ASSESSABLE AS STCG. 3.2 THE LD. DR, ON THE OTHER HAND, WOULD SUBMIT THA T THE FACTS AND CIRCUMSTANCES OF EACH YEAR WOULD NEED TO BE TAKEN INTO ACCOUNT, AND A DECISION TAKEN ON THAT BASIS, AND THAT IT IS NOT PERMISSIBLE TO TREAT THE ASSESSEE AS EITHER AN INVESTOR OR A TRADER SOLELY ON THE BASIS THAT HE HAD BEEN ASSESSED AS SUCH IN THE PAST . TOWARD THIS, HE WOULD PLACE ON RECORD THE COPY OF THE ORDER BY THE TRIBUNAL IN THE CASE O F HITESH S. BHAGAT (IN ITA NO.6586/MUM/2010 & 5711/MUM/2011 DATED 15.05.2013 F OR A.YS. 2007-08 & 2008-09 RESPECTIVELY), WHEREIN THE TRIBUNAL, RELYING ON THE DECISION BY THE APEX COURT IN THE CASE 3 ITA NO.301/MUM/2012 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. ASST. CIT OF NEW JEHANGIR VAKIL MILLS CO. LTD. VS. CIT [1963] 49 ITR 137 (SC), HELD THAT RES JUDICATA BEING NOT APPLICABLE TO THE PROCEEDINGS UNDER THE A CT, IT WAS PERMISSIBLE FOR THE A.O. TO TAKE A VIEW DIFFERENT FROM THAT ADOPTED BY HIM FOR A PRECEDING YEAR. THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF CIT VS. GOPAL PUROHIT [2011] 336 ITR 287 (BOM) HAS ALSO BEEN TAKEN INTO CONSIDERATIO N BY THE TRIBUNAL IN THAT CASE, STATING THAT THE MATTER BEING PURELY FACTUAL, IT HAS TO BE DECIDED ON THE FACTS OBTAINING FOR THE RELEVANT YEAR. ON THAT BASIS, IT WAS CLAIMED BY HIM THAT THE MATTER COULD NOT BE TREATED AS COVERED BY THE ORDER BY THE TRIBUNAL IN THE ASSESSE ES CASE FOR THE PRECEDING YEARS, WHICH HAD IN FACT ONLY SET ASIDE THE ASSESSMENT FOR ADJUD ICATION AFRESH. ON MERITS, HE WOULD DRAW OUR ATTENTION TO THE DETAI LS OF THE SHARE TRANSACTIONS IN RESPECT OF SHARES HELD FOR LESS THAN ONE YEAR, CLAI MED AS STCG, WHICH APPEARS AT PGS.46- 64, AND THE DETAILS OF THE ENTIRE SHARE TRANSACTION S, INCLUDING THE PERIOD OF HOLDING, TRANSACTION-WISE, WHETHER SHORT TERM OR LONG TERM ( PB PGS.65-72). AS APPARENT, THE TRANSACTIONS, THOUGH NOT NUMBERED, ARE VOLUMINOUS A ND THE HOLDING PERIOD VERY LOW IN MANY CASES. AS SUCH, THE SAME CLEARLY SHOWS THE ASS ESSEE BEING ENGAGED IN THE ACTIVITY OF PURCHASE AND SALE OF THE SHARES ON A REGULAR BASIS. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD, INCLUDING THAT BY THE TRIBUNAL IN THE CASE OF HITESH S. BHAGAT (SUPRA). 4.1 AT THE OUTSET, WE WISH TO CLARIFY, EVEN AS WAS DONE DURING THE COURSE OF THE HEARING ITSELF, THAT WE ARE NOT IN DISAGREEMENT WIT H AND, RATHER, ENDORSE THE ORDER BY THE TRIBUNAL IN THE CASE OF HITESH S. BHAGAT (SUPRA). AN INVESTOR IN ONE YEAR COULD WELL BECOME A TRADER IN THE SUBSEQUENT YEAR AND VICE-VER SA. IN FACT, HE COULD ACT AS BOTH AS A TRADER OR AS AN INVESTOR FOR ANY OF THE YEARS. THE MATTER IS PURELY FACTUAL, AND NO INFERENCE ONE WAY OR OTHER WOULD AUTOMATICALLY ARISE OUT OF T HE FINDINGS OF THE FACT BY THE ASSESSING AUTHORITY, WHO IS NOT BOUND BY HIS ORDER FOR AN EAR LIER YEAR/S, FOR ANY OTHER YEAR. THIS WE ALSO FIND TO BE SUM AND SUBSTANCE OF THE ORDER BY T HE TRIBUNAL IN THE CASE OF HITESH S. BHAGAT (SUPRA), WHICH STOOD DECIDED BY THE TRIBUNAL BY IS SUING SPECIFIC FINDINGS OF FACT, AS APPARENT FROM A READING OF ITS ORDER. THIS POSIT ION OF LAW IS WELL-SETTLED, AS AMPLY 4 ITA NO.301/MUM/2012 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. ASST. CIT CLARIFIED BY THE TRIBUNAL WITH REFERENCE TO A HOST OF DECISIONS BY THE APEX COURT, PER ITS DECISIONS IN THE CASE OF ADDL. CIT VS. ROHIT KOTHARI [2013] 35 CCH 084 (MUM) AND ASST. CIT VS. DOLLY K. VAJIFDAR (IN ITA NO.3867/MUM/2011 DATED 08.03.2013). IN FAC T, IN THE ASSESSEES OWN CASE FOR THE EARLIER YEARS, I.E., A. YS. 2004-05 TO 2007-08, VIDE ITS ORDER DATED 31.01.2012 REFERRED TO SUPRA, THE TRIBUNAL VI DE PARA 17 OF ITS ORDER, HAS CULLED OUT THE JUDICIAL POSITION WITH REFERENCE TO THE DECISIO NS BY THE APEX COURT, AS CLARIFIED PER ITS ORDER IN ITA NO.3233/MUM/2009 DATED 18.05.2011, ALS O REFERRING TO THE TESTS FORMULATED BY THE CBDT WITH REFERENCE THERETO VIDE ITS CIRCULA R NO.4/2007 DATED 15.04.2007, AS UNDER: 17. IN ITA NO.3233/MUM./2009, ASSESSMENT YEAR 200 6-07, ORDER DATED 18TH MAY 2011, THE JUDICIAL PROPOSITION ON THE ISSU E WERE CULLED OUT:- (A) WHETHER A TRANSACTION OF SALE AND PURCHASE OF SHARES WERE TRADING TRANSACTIONS OR WHETHER THEY WERE IN THE NATURE OF INVESTMENTS IS MIXED QUESTION OF LAW AND FACT. CIT V/S HOLCK LARSEN, 60 ITR 67 (SC). (B) IT IS POSSIBLE FOR AN ASSESSEE TO BE BOTH AN IN VESTOR AS WELL AS A DEALER IN SHARES. WHETHER A PARTICULAR HOLDING IS BY WAY O F INVESTMENT OR FORMED PART OF STOCK IN TRADE IS A MATTER WHICH IS WITHIN THE KNOWLEDGE OF THE ASSESSEE AND IT IS FOR THE ASSESSEE TO PRODUCE EVID ENCE FROM HIS RECORDS AS TO WHETHER HE MAINTAINED ANY DISTINCTION BETWEEN SH ARES WHICH WERE HOLD BY HIM AS INVESTMENTS AND THOSE HOLD AS STOCK IN TR ADE. (CIT V/S ASSOCIATED INDUSTRIAL DEVELOPMENT CO. LTD., 82 ITR 586 (SC). (C) TREATMENT IN THE BOOKS BY AN ASSESSEE WILL NOT BE CONCLUSIVE. IF THE VOLUME, FREQUENCY AND DT. 15.6.2007 ULARITY WITH WH ICH TRANSACTIONS ARE CARRIED OUT INDICATE SYSTEMATIC AND ORGANIZED ACTIV ITY WITH PROFIT MOTIVE, THEN IT WOULD BE A CASE OF BUSINESS PROFITS AND NOT CAPITAL GAIN. CIT V/S MOTILAL HIRABAI SPG. AND WVG. CO. LTD. 113 ITR 173 (GUJ.); RAJA BAHADUR VISWSHWARA SINGH V/S CIT, 41 ITR 685 (SC). (D) PURCHASE WITHOUT AN INTENTION TO RESELL WHERE T HEY ARE SOLD UNDER CHANGED CIRCUMSTANCES WOULD BE CAPITAL GAINS. CIT V /S PKN, 60 ITR 65 (SC). PURCHASE WITH AN INTENTION TO RESELL WOULD RE NDER THE GAIN PROFIT ON SALE BUSINESS PROFIT DEPENDING ON THE CIRCUMSTANCE OF THE CASE LIKE NATURE AND QUANTITY OF ARTICLE PURCHASED, NATURE OF THE OP ERATION INVOLVED. SAROJ KUMAR MAZUMDAR V/S CIT, 37 ITR 242 (SC). 5 ITA NO.301/MUM/2012 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. ASST. CIT (E) NO SINGLE FACT HAS ANY DECISIVE SIGNIFICANCE AN D THE QUESTION MUST DEPEND UPON THE COLLECTIVE EFFECT OF ALL THE RELEVA NT MATERIALS BROUGHT ON RECORD. JANKI RAM BAHADUR RAM V/S CIT, 57 ITR 21 (S C). 6. THE ABOVE TEST HAVE AGAIN BEEN REITERATED BY THE CBDT IN ITS CIRCULAR NO.4/2007 DT. 15.4.2007. 4.2 THE ISSUE, HOWEVER, IN THE INSTANT CASE IS THAT BOTH THE AUTHORITIES BELOW HAVE THEMSELVES DRAWN SUPPORT FROM THE ASSESSMENT FOR TH E EARLIER YEARS, IMPLYING THE FACTS TO BE THE SAME. NO SEPARATE CASE, BY ANALYZING THE FAC TS FOR THIS YEAR HAS BEEN MADE OUT BY THE AUTHORITIES BELOW. AS SUCH, WE FIND SUBSTANCE I N THE AVERMENTS BY THE LD. AR, NOTWITHSTANDING THE LEGAL POSITION IN THE MATTER AS CLARIFIED BY THE TRIBUNAL IN ITS CASES REFERRED TO SUPRA, SO THAT WE WOULD BE INCLINED TO ACCEPT HIS CONTENTIONS. 4.3 AGAIN, HOWEVER, IT IS OBSERVED THAT THE TRIBUNA L, WHILE DECIDING THE REVENUES APPEAL FOR THE CURRENT YEAR, AGITATING THE TREATMEN T OF THE INCOME ON SALE OF SHARES RETURNED AS LONG TERM CAPITAL GAIN (LTCG) AS SUCH B Y THE FIRST APPELLATE AUTHORITY, VIDE ITS ORDER DATED 05.04.2013 (IN ITA NO.1590/MUM/2012 /COPY ON RECORD), IN VIEW OF THE DECISION BY THE TRIBUNAL FOR THE EARLIER YEARS RELI ED UPON BY THE LD. AR, RESTORED THE MATTER BACK TO THE FILE OF THE A.O. FOR A DE NOVO ADJUDICATION, HOLDING AS UNDER, ON A SIMILAR RELIANCE, I.E., ON THE TRIBUNALS ORDER FOR THE EAR LIER YEARS BEING PLACED: 4. UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER IT FI T AND PROPER, AS WELL AS FOR THE UNIFORMITY OF PROCEDURE AND CONSISTENCY, THAT THE IMPUGNED ASSESSMENT IS SET ASIDE ON THIS ISSUE TO THE FILE O F THE A.O. FOR A DE NOVO ADJUDICATION, DECIDING THE SAME ON MERITS IN ACCORD ANCE WITH THE LAW, BY ISSUING DEFINITE FINDINGS OF FACT, AND AFTER AFFORD ING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE DECIDE ACCORDINGLY. IN VIEW OF THE FOREGOING, WE ARE UNABLE TO SEE AS T O HOW ANY DIFFERENT VIEW IN THE MATTER COULD BE TAKEN BY THE TRIBUNAL. IN FACT, THI S MATTER OUGHT TO HAVE BEEN BROUGHT TO OUR NOTICE BY THE LD. AR, WHO ALSO REPRESENTED THE ASSESSEE IN THE REVENUES APPEAL FOR THE CURRENT YEAR BEFORE THE TRIBUNAL; RATHER, OUGHT TO HAVE ALSO BROUGHT THE FACT OF THE ASSESSEE BEING ALSO IN APPEAL TO THE NOTICE OF THE TRIBUNAL, SO THAT THE CROSS APPEALS COULD 6 ITA NO.301/MUM/2012 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. ASST. CIT BE HEARD TOGETHER BY IT, AND WE DISCOUNTENANCE HIS CONDUCT IN NOT DOING SO. UNDER THE CIRCUMSTANCES, WE THEREFORE, DECIDE THE ASSESSEES APPEAL FOR THE CURRENT YEAR LIKEWISE, I.E., AS THE REVENUES APPEAL AND, ACCORDINGLY, SET ASIDE THIS ISSUE TO THE FILE OF THE A.O. FOR A DE NOVO ADJUDICATION, DECIDING THE SAME ON MERITS IN ACCOR DANCE WITH LAW, BY ISSUING DEFINITE FINDINGS OF FACT, AND AFTER AFFORD ING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE DECIDE ACCORDINGLY. 5. THE SECOND GROUND OF THE ASSESSEES APPEAL IS IN RELATION TO A DISALLOWANCE IN THE SUM OF RS.6,52,086/- U/S.14A OF THE ACT BY THE A.O. FOLLOWING RULE 8D, BEING MANDATORY FOR THE CURRENT YEAR; THE ASSESSEE HAVING EARNED DI VIDEND AT RS.21.51 LACS FOR THE YEAR. THE SAME STOOD CONFIRMED IN APPEAL BY THE LD. CIT(A ), WHO FOUND THAT THE FAILURE OF THE ASSESSEE TO PRODUCE ANY CASH FLOW STATEMENT OR ANY OTHER MATERIAL TO ESTABLISH THE FACTS, HER CLAIM OF HAVING NOT UTILIZED THE BORROWED FUNDS FOR INVESTING IN SHARES AND, THUS, OF HAVING NOT INCURRED ANY INTEREST EXPENDITURE TOWARD EARNING DIVIDEND INCOME, COULD NOT BE ACCEPTED. THERE IS ALSO NO QUESTION OF THE ASSES SEE HAVING NOT INCURRED ANY ADMINISTRATIVE EXPENSES IN MAINTAINING ITS SHARES Y IELDING TAX EXEMPT INCOME, SO THAT THE ASSESSEES CLAIM OF HAVING NOT INCURRED ANY SUCH EX PENDITURE IN ITS RESPECT ALSO COULD NOT BE ACCEPTED, SO THAT HE FOUND NO INFIRMITY IN THE I MPUGNED DISALLOWANCE MADE BY THE A.O. BY ADOPTING RULE 8D. AGGRIEVED, THE ASSESSEE IS IN APPEAL. 6. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. AS WOULD BE PRESENTLY SEEN, THE REVENUE HAS PROCEEDED TO MAKE T HE DISALLOWANCE, EFFECTING OF WHICH THOUGH CANNOT BE ASSAILED, DE HORS THE FACTS OF THE CASE. WE SAY SO AS THE TOTAL EXPENDITURE INCURRED BY THE ASSESSEE DURING THE REL EVANT YEAR, AS PER ITS PROFIT AND LOSS ACCOUNT, FORMING PART OF ITS RETURN OF INCOME FOR T HE YEAR (REFER PB/PGS.30-33), IS AT RS.5,79,692/-. HOW COULD THEN, WE WONDER, A DISALLOWANCE BE MADE A T A HIGHER SUM OF RS.6,52,086/-, I.E., EVEN IF THE ENTIRE EXPENDITURE IS CONSIDERED AS HAVING BEEN INCURRED IN RELATION TO THE DIVIDEND INCOME AND NONE OF IT AS A GAINST THE BUSINESS INCOME ? FURTHER, NO DISALLOWANCE QUA THE INTEREST EXPENDITURE STOOD MADE BY THE A.O.; T HE ASSESSEE HAVING NOT INCURRED ANY INTEREST EXPENDITURE; RATHER RETUR NED A POSITIVE INTEREST INCOME OF 7 ITA NO.301/MUM/2012 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. ASST. CIT RS.1,22,380/-, AND WHICH, AS APPARENT FROM THE COMP UTATION OF THE INCOME, IS THE GROSS AND NOT THE NET INTEREST EARNED BY HER. REFERENCE, THEREFORE, BY THE LD. CIT(A) TO THE ASSESSEE HAVING NOT PRODUCED THE CASH FLOW STATEMEN T, PROVING THE NEXUS OF THE BORROWED FUNDS WITH HER BUSINESS ACTIVITIES, IS UNWARRANTED AND DE HORS THE FACTS OF THE CASE. WE, AGAIN, EXPRESS OUR DISPLEASURE OVER CONDUCT BY THE REPRESENTATIVES OF BOTH THE SIDES IN NOT BRINGING THE RELEVANT FACTS TO OUR NOTICE DURING HE ARING. IN FACT, THE EXPENDITURE OF RS.5,79,692/- INCLUDES DEMAT CHARGES (AT RS.80,221/ -) AND TAX DEDUCTED ON SALARY RECEIVED (RS.2,500/-), AND WHICH ARE CLEARLY DIRECT EXPENSES AND NOT EXPENDITURE AT ALL RESPECTIVELY. IT IS ONLY WHERE THE A.O. IS NOT SATI SFIED, FOR COGENT AND VALID REASONS, THAT THE CLAIM OF THE ASSESSEE AS HAVING INCURRED ONLY T HE STATED EXPENDITURE IN RELATION TO THE INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME , INCLUDING WHERE THE SAME IS STATED TO BE AT NIL, THAT THE A.O. CLOTHES HIMSELF WITH TH E JURISDICTION TO MAKE THE DISALLOWANCE U/S. 14A(1) R/W RULE 8D. THE SAID RULE, IT MAY BE A GAIN CLARIFIED, IS TOWARD ESTIMATING THE EXPENDITURE THAT CAN BE ATTRIBUTED TO THE TAX EXEMP T INCOME AND, THUS, COULD NOT, IN ANY CASE, EXCEED THE ACTUAL EXPENDITURE INCURRED AND CL AIMED BY THE ASSESSEE. AT THE SAME TIME, THE ASSESSEES CLAIM OF HAVING NOT INCURRED A NY EXPENDITURE IN RELATION TO THE SAID INCOME CANNOT BE ACCEPTED. AS APPARENT, THERE IS EX PENDITURE ON OFFICE AND MAINTENANCE EXPENDITURE, INCLUDING ON REPAIRS, TELEPHONE, GENER AL EXPENSES, ELECTRICITY EXPENSES, ETC., AS WELL AS ON EMPLOYMENT OF STAFF, AND WHICH WOULD ONLY BE IN SUPPORT OF HER ACTIVITIES. A VOLUME OF THE TRANSACTIONS HAS BEEN UNDERTAKEN BY THE ASSESSEE DURING THE YEAR, YIELDING INCOME, INCLUDING DIVIDEND, WHICH STANDS C REDITED TO THE PROFIT AND LOSS ACCOUNT. UNDER THESE CIRCUMSTANCES, THEREFORE, WE ONLY CONSI DER IT FIT AND PROPER THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE A.O. FOR CONSIDERA TION AFRESH OF THE MATTER. THIS WOULD ALSO BE IN AGREEMENT WITH THE TRIBUNAL HAVING RESTO RED THE ISSUE QUA THE INCOME ON THE SALE OF THE SHARES AS BEING EITHER LTCG OR STCG, AS THE CASE MAY BE, OR BUSINESS INCOME, BACK TO THE FILE OF THE A.O. FOR A DE NOVO ADJUDICATION. WE DECIDE ACCORDINGLY. REFERENCE IN THIS REGARD MAY BE MADE TO THE DECISIO N BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING CO. LTD. VS. DY. CIT [2010] 328 ITR 81 (BOM), WHICH DEALS WITH ALL ASPECTS OF THE M ATTER IN CONSIDERABLE DETAIL. 8 ITA NO.301/MUM/2012 (A.Y. 2008-09) ANAHAITA NALIN SHAH VS. ASST. CIT 7. THE THIRD AND THE FINAL GROUND OF THE ASSESSEES APPEAL IS IN RESPECT OF THE CONFIRMATION OF THE TREATMENT OF LTCG AS BUSINESS I NCOME. AS AFORESAID, THIS ISSUE STANDS CONCLUDED IN FAVOUR OF THE SET ASIDE FOR A DE NOVO ADJUDICATION BACK TO THE FILE OF THE A.O. IN THE ASSESSEES OWN CASE IN THE REVENUE S APPEAL VIDE ITS ORDER IN ITA NO.1590/MUM/2012 DATED 05.04.2013, THE DECISION PER ITS PARA 4 HAVING BEEN EXTRACTED HEREINABOVE. THE SAME IS ADOPTED FOR DISPOSING THE ASSESSEES APPEAL ON THIS GROUND AS WELL. WE DECIDE ACCORDINGLY. 8. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4 05 & '40 / 6/ 78'9 ' :0 / 0 ;< ORDER PRONOUNCED IN THE OPEN COURT ON JULY 24, 2013 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER '# / ACCOUNTANT MEMBER MUMBAI; =& DATED : 24.07.2013 .&../ ROSHANI , SR. PS '3 / ,0> ?'>(0 '3 / ,0> ?'>(0 '3 / ,0> ?'>(0 '3 / ,0> ?'>(0/ COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT 3. @ ( ) / THE CIT(A) 4. @ / CIT - CONCERNED 5. >CD ,0& , , / DR, ITAT, MUMBAI 6. DE' F / GUARD FILE '3& '3& '3& '3& / BY ORDER, 7 77 7/ // /; ; ; ; (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI