M/s. Shiva Insurance Agency Ltd., New Delhi V. ITO, New Delhi

ITA 3060/DEL/2012

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3415 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 22-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 18-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Assessee Lawyers: MAYANK JAIN
• Keywords: Business income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. G.D.AGARWAL, PRESIDEN T AND SH. KUL BHARAT, JUDICIAL M EMBER ITA NO. 3060/DEL./2012 : A SSTT. YEAR : 2008-09 SHIVA INSURANCE AGENCY LTD. (NOW KNOW AS SHIVA PARVATI MERCANTILE (P) LTD.) 72, M.M.ROAD, RANI JHANSI ROAD, JHANDEWALLAN NEW DELHI PAN : AAHCS5107L VS ITO WARD-8(2) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. MA YANK JAIN, CA RESPONDENT BY : SH. KAUSHLENDRA TIW ARI, SR. DR DATE OF HEARING : 22.02.2018 DATE OF PRONOUNCEMENT : 23.02.2018 ORDER PER KULBHARAT, J.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) XI, NEW DEL HI DATED 01.03.2012 PERTAINING TO ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL :- 1.THAT THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEAL). ERROR RED IN UPHOLDING THE ORDER OF LE ARNED A.O. CONSIDERING LONG TERM CAPITAL GAIN OF RS. 48,75,874 /- AND SHORT ITA NO.3060/DEL/2012 2 TERM CAPITAL GAIN OF RS. 2,97,314/- ON SALE OF SHAR ES AS NORMAL BUSINESS INCOME. 2. THAT THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED A.O. ERROR RED IN NOT ACCEPTING THE CONTENTION OF T HE ASSESSEE THAT THE SHARES HELD BY IT ARE FOR INVESTMENT PURPOSE. 3. BRIEFLY STATED FACTS ARE THAT CASE OF THE ASSESS EE WAS PICKED UP FOR SCRUTINY ASSESSMENT, THE ASSESSMENT U/S 143(3) OF T HE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT.) BY FRAMING THE ASSESSMENT. THE ASSESSING OFFICER MADE ADDITION BY TREATING THE INVESTMENT MA DE BY THE ASSESSEE IN SHARES AS INCOME FROM BUSINESS. AGAINST THIS, THE ASSESSEE IS PREFERRED AN APPEAL BEFORE THE CIT(A) WHO AFTER CONSIDERING THE SUBMISS IONS CONFIRMED THE ADDITION. NOW THE ASSESSEE IN FURTHER APPEAL. 4. THE ONLY EFFECTIVE GROUND IS AGAINST TREATING TH E SURPLUS ARISING OUT OF INVESTMENT MADE IN SHARES AS BUSINESS INCOME. LD. C OUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS BEEN SHOWING THE I NVESTMENTS IN HIS ACCOUNTS AS LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL GAIN AND LD. COUNSEL IS FURTHER SUBMITTED THAT BY MISTAKE THE ASSESSEE IN THE YEAR UNDER APPEAL TREATED THE INVESTMENT IN SHARES AS STOCK AND TRADE WOULD NOT C HANGE THE CHARACTER OF THE TRANSACTIONS. ON THE CONTRARY, LD. DR SUPPORTED TH E ORDER OF THE AUTHORITIES BELOW AND HE HAS ALSO POINTED OUT THAT THE VOLUME A ND FREQUENCY OF TRANSACTION DEMONSTRATES THAT THE ASSESSEE WAS ENGAGED IN BUSI NESS ACTIVITY IN TRADING OF SHARES. 5. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORD, IT IS THE CONTENTION OF THE ASSESSEE THAT H E HAS BEEN REFLECTING THE INVESTMENTS IN BOOKS OF ACCOUNTS AND ACCEPTED BY TH E REVENUE AS LONG TERM AND SHORT TERM CAPITAL GAIN. THEREFORE, IN THE YEAR, UN DER APPEAL ALSO SAME SHOULD BE TREATED AS INVESTMENT. WE HAVE GIVEN OUR THOUGHT FUL CONSIDERATION TO THE ITA NO.3060/DEL/2012 3 FACTS OF THE PRESENT CASE. AFTER CONSIDERING THE TO TALITY OF THE FACTS AND THE MATERIAL PLACED BEFORE US, WE ARE OF THE VIEW THAT THE CONTENTION OF THE ASSESSEE THAT THE INVESTMENT IN SHARES WAS REFLECTED AS STOC K IN TRADE BY MISTAKE, REQUIRE VERIFICATION THEREFORE, THE ORDERS OF THE AUTHORITI ES BELOW ARE SET ASIDE. THIS ISSUES IS RESTORED TO FILE OF THE ASSESSING OFFICER FOR DECISION AFRESH. NEEDLESS TO SAY THAT THE ASSESSING OFFICER WOULD AFFORD SUFFICI ENT OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE GROUNDS OF THE ASSESSEES AP PEAL ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 23/ 02/2018). SD/- SD/- (G.D.AGARWAL) (KUL BHARAT) PRESIDENT JUDICIAL MEMBER DATED: 23/ 02/2018 *BINITA* COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSISTANT REGIS TRAR DATE INITIAL 1. DRAFT DICTATED ON 22.02.2018 2. DRAFT PLACED BEFORE AUTHOR 22.02.2018 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.