The DCIT, Circle-2, Baroda V. Smt. Seema Ajay Ranka, Baroda

ITA 3301/AHD/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6453 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Business expenditure; Opportunity of being heard
• Section: 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH (BEFORE S/SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND D.C. AGRAWAL, ACCOUNTANT MEMBER) ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 [ASSTT. YEAR : 2006-2007] DCIT, CIR.2(2) BARODA. VS. SMT. SEEMA AJAY RANKA PROP. OF ZYDEX INDUSTRIES 25/A, GANDHI OIL MILL COMPOUND NR. BIDC GORWA, BARODA 390 016. PAN : ABLPPR 6874 K ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 [ASSTT. YEAR : 2006-2007] DCIT, CIR.2(2) BARODA. VS. DR. AJAY RANKA ZYDE INDUSTRIES 10, A, GANDHI OIL MILL COMPOUND NR. BIDC GORWA, BARODA 390 016. PAN : ABWPR 3235 R (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SAMIR TEKRIWAL ASSESSEE BY : SHRI MILIN MEHTA O R D E R PER BHAVNESH SAINI, JUDICIAL MEMBER: THE CROSS-APPEALS IN THE CASE OF ASSESSEE, SMT. SEEMA AJAY RANKA ARE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS)-II, BARODA DATED 30 TH SEPTEMBER, 2009 FOR A.Y.2006-07. THE CROSS APPEAL S IN THE CASE OF DR.AJAY RANKA ARE DIRECTED AGAINST THE ORDE R OF THE CIT(A)-II, BARODA DATED 11 TH SEPTEMBER, 2009 FOR A.Y.2006-07. THE LEARNED ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -2- REPRESENTATIVES OF THE BOTH THE PARTIES SUBMITTED T HAT THE ISSUES ARE COMMON IN ALL THE GROSS APPEALS, THEREFORE, THE SAM E WERE HEARD TOGETHER AND ARE DISPOSED OF THROUGH THIS COMMON CONSOLIDATE D ORDER. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE A SSESSEE AT THE OUTSET SUBMITTED THAT THE ISSUES ARE MOSTLY COVERED BY THE ORDER OF THE ITAT, AHMEDABAD C BENCH IN THE CASE OF BOTH THE ASSESSE E IN A.Y.2004-2005 DATED 19-12-2008 IN ITA NO.4516/AHD/2007, 17/AHD/20 08, 4517/AHD/2007 AND 18/AHD/2008. HE HAS FURTHER SUBM ITTED THAT OTHER ISSUES IN THE CASE OF SMT.SEEMA RANKA ARE ALSO COVE RED BY THE ORDER OF THE ITAT, AHMEDABAD BENCH IN THE CASE OF SAME ASSES SEE VIDE ORDER OF THE ITAT, AHMEDABAD BENCH IN ITA NO.3175/AHD/2008 I N A.Y.2005- 2006 DATED 18-12-2009. COPIES OF BOTH THE ORDERS A RE PLACED ON RECORD. ITA NO.3301/AHD/2009 WITH CO 13/AHD/2010 3. IN THE DEPARTMENTS APPEAL, THE REVENUE CHALLENG ED THE ORDER OF THE CIT(A) IN REVERSING THE FINDINGS OF THE AO THAT THE LONG TERM CAPITAL GAIN OFFERED BY THE ASSESSEE ON SALE OF SHARES WAS ASSES SABLE AS BUSINESS PROFIT. THE LEARNED CIT(A) NOTED THAT HIS PREDECES SOR IN THE ASSESSEES OWN CASE FOR A.Y.2004-2005 HELD THAT THE LONG TERM CAPITAL GAIN SHOWN BY THE ASSESSEE ARE HELD TO BE LONG TERM CAPITAL GA IN AS AGAINST THE BUSINESS PROFIT TREATED BY THE AO. THE AO WAS ACCO RDINGLY DIRECTED TO GIVE THE SAME TREATMENT. THE LEARNED COUNSEL FOR T HE ASSESSEE AT THE OUTSET SUBMITTED THAT SIMILAR GROUNDS WERE CONSIDER ED BY THE TRIBUNAL IN ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -3- A.Y.2004-05 IN ITA NO.4517/AHD/2007 FOR A.Y.2004-20 05 (SUPRA) AND VIDE PARA-8, PAGE NO.14, THE DEPARTMENTS APPEAL WA S DISMISSED. 4. ON CONSIDERATION OF THE FACTS, WE FIND THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL FOR A.Y.2004-205, IN WHICH THE TRIBUNAL CONFIRMED THE VIEW OF THE CIT(A) IN UPHOLDING THE PROFIT OUT OF THE TRANSACTION TO BE LONG TERM CAPIT AL GAIN. THE LEARNED CIT(A) FOLLOWED HIS ORDER FOR A.Y.2004-2005 AND DEC IDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE VIEW OF THE CIT(A) IS ALSO CONFIRMED BY THE TRIBUNAL DISMISSING THE DEPARTMENTS APPEAL. THERE FORE, WE DO NOT FIND ANY MERIT IN THIS GROUND OF THE APPEAL OF THE REVEN UE, THE SAME IS ACCORDINGLY DISMISSED. THERE IS NO OTHER ISSUE IN THE DEPARTMENTS APPEAL, THE SAME IS ACCORDINGLY. 5. ON GROUND NO.1 OF THE CO OF THE ASSESSEE, THE AS SESSEE HAS CHALLENGED THE ORDER OF THE CIT(A) IN CONFIRMING TH E ACTION OF THE AO IN TAXING THE TRANSACTION IN SHARES/SECURITIES/MUTUAL FUNDS UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION INSTEAD OF IN COME FROM CAPITAL GAINS AS CLAIMED BY THE ASSESSEE. THE LEARNED CIT (A) NOTED IN THE IMPUGNED ORDER THAT FOR A.Y.2004-2005, THE SHORT TE RM CAPITAL GAIN DISCLOSED BY THE ASSESSEE, THE MUTUAL FUND UNIT TRA NSACTION WERE HELD TO BE INVESTMENT AND TAXABLE IN CAPITAL GAIN HEAD. TH E TRANSACTION IN SHARES AND PMS ARE HELD TO BE BUSINESS PROFIT AND THE SAME ARE TAXABLE IN BUSINESS HEAD. THE LEARNED CIT(A) NOTED THAT THE T RIBUNAL DECIDED THE SIMILAR ISSUE IN A.Y.2004-2005 AND CONFIRMED THE OR DER OF THE CIT(A) HOLDING THAT THE CONCLUSION OF THE AO OF TREATMENT THE SHORT TERM CAPITAL AGAIN AND PROFITS FOR PMS AS BUSINESS INCOME IS CON FIRMED. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED TH AT THE TRIBUNAL HAD ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -4- DECIDED THIS ISSUE AGAINST THE ASSESSEE IN PRECEDIN G ASSESSMENT YEAR 2004- 2205 IN ITA NO.4517/AHD/2007 (SUPRA). HE HAS SUBMI TTED THAT THE CIT(A) IN THAT YEAR HELD THE TRANSACTION THROUGH PM S TO BE INCOME FROM BUSINESS AND NOT AS CAPITAL GAIN. THE TRIBUNAL DIS MISSED THE ASSESSEES APPEAL ON THIS ISSUE. THE LEARNED COUNSEL FOR THE ASSESSEE, HOWEVER, SUBMITTED THAT THE ITAT, MUMBAI BENCH HAS HOWEVER T AKEN A CONTRARY VIEW. HOWEVER, THE LEARNED DR SUBMITTED THAT SINCE IN THE CASE OF THE SAME ASSESSEE, THE TRIBUNAL TOOK A VIEW AGAINST THE ASSESSEE, THEREFORE, THE ORDER IN THAT CASE SHOULD BE FOLLOWED. 6. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF T HE VIEW THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE ITAT, AHMEDABAD BENCH IN THE CASE OF SAME ASSESSEE IN ITA NO.4517/AHD/2007 (SUPRA) WHEREBY THE ORDER OF THE C IT(A) WAS CONFIRMED TREATING THE TRANSACTIONS TO BE PMS BEING INCOME FROM BUSINESS THEREFORE THERE IS NO REASON TO TAKE A CON TRARY VIEW IN THE CASE OF THE SAME ASSESSEE. THE FACTS ARE IDENTICAL IN BOTH THE ASSESSMENT YEARS, THEREFORE, THE DECISION IN THE CASE OF THE SAME ASS ESSEE ON SAME FACTS IS BEST PRECEDENT TO BE FOLLOWED. CONSIDERING THE ABO VE FACTS, WE FIND THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE OR DER OF THE ITAT (SUPRA). ACCORDINGLY, WE DISMISS THIS GROUND OF THE CO OF TH E ASSESSEE. 7. ON GROUND NO.2 OF THE CO, THE ASSESSEE CHALLENGE D DISALLOWANCE OF LEGAL AND PROFESSIONAL CHARGES AMOUNTING TO RS.7 ,90,200/- INVOKING THE PROVISIONS OF SECTION 40A(2)(B) OF THE ACT. THE AS SESSEE CHALLENGED THE DISALLOWANCE AMOUNTING RS.10,72,435/- BEFORE THE LE ARNED CIT(A) WHICH AMOUNT WAS PAID TO THE ASSESSEES SON MR. MOULIK ME HTA. THE AO FOUND THAT MR. MOULIK IS AN UNDERGRADUATE ENGINEERING STU DENT OF USA AND HAS ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -5- NOT VISITED INDIA AND IN THE UNIVERSITY HE CANNOT D O ANY RESEARCH WORK FOR THE ASSESSEES BUSINESS. THE AO THEREFORE DISALLOW ED THE SAME UNDER SECTION 37(1) OF THE ACT AND ALSO DISALLOWED UNDER SECTION 40A(2)(B). IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) IN A.Y.2005 -2006, THE LEARNED CIT(A) HELD THAT NO SERVICES WERE FOUND TO HAVE BEE N DONE BY THE ASSESSEES SON, THE SAME WERE THEREFORE NON-GENUINE EXPENDITURE AND CANNOT BE ALLOWED AS BUSINESS EXPENDITURE UNDER SEC TION 37(1) OF THE ACT. THE LEARNED CIT(A) FOLLOWING THE ORDER FOR A.Y.2005 -2006, CONFIRMED THE DISALLOWANCE UNDER SECTION 37(1) OF THE ACT. I T WAS FURTHER OBSERVED THAT SINCE NO SERVICES WERE RENDERED BY THE SON OF THE ASSESSEE FOR THE BUSINESS OF THE ASSESSEE, THEREFORE SECTION 40A(2)( B) HAVE NO RELEVANCY, THE ADDITION WAS ACCORDINGLY CONFIRMED. THE LEARN ED COUNSEL FOR THE ASSESSEE CONCEDED THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE ITAT, AHMEDABAD BENCHES IN THE CASE OF THE SAME ASSESSEE IN ITA NO.3175/AHD/2008 VIDE ORDER DATED 18-12-2009 . 8. ON CONSIDERATION OF THE ABOVE FACTS, WE FIND THA T THE ISSUE IS THE SAME WHICH WAS CONSIDERED IN THE EARLIER YEAR AND T HE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE ON THE IDENTICAL FACTS. THE ISSUE IS THEREFORE COVERED AGAINST THE ASSESSEE. NO CHANGE IN THE FAC TS AND CIRCUMSTANCES HAS BEEN BROUGHT TO OUR NOTICE. THIS GROUND OF THE CO OF THE ASSESSEE IS ACCORDINGLY DISMISSED. 9. ON GROUND NO.3 OF THE CO, THE ASSESSEE CHALLENGE D THE DISALLOWANCE OF RS.8,63,042/- ON ACCOUNT OF REPAIRS AND MAINTENANCE TO PLANT & MACHINERY. THE LEARNED CIT(A) NOTED THAT T HE ASSESSEE HAS CLAIMED EXPENDITURE OF RS.49,25,759/- AS REPAIRS TO MACHINERY, BUILDING AND OTHERS. THE AO NOTED THE DETAILS OF THE PAYMEN T ON THE HEADS WHICH ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -6- ARE REPRODUCED IN THE APPELLATE ORDER. FURTHER, TH E BIFURCATION OF THE EXPENDITURE INCURRED AND THE REASONS FOR DISALLOWAN CES HAVE BEEN CATEGORIZED IN THE REPLY OF THE ASSESSEE AS A TO D . THE EXPLANATION OF THE ASSESSEE IS ALSO NOTED IN THE IMPUGNED ORDER. THE AO DISALLOWED RS.13,39,259/- ON THIS ISSUE. THE LEARNED CIT(A) CONSIDERING THE EXPLANATION OF THE ASSESSEE AND DETAILS OF THE EXPE NDITURE NOTED THAT THE EXPENDITURE A PERTAINS TO ANNUAL MAINTENANCE CHAR GES AND ROUTINE LABOUR CHARGES WHICH ARE ALLOWABLE AS BUSINESS EXPE NDITURE. THE EXPENDITURE UNDER B & C WERE FOUND TO BE INCURR ED ON REPLACEMENT OF SPARES TO PRESERVE AND MAINTAIN AN ALREADY EXIST ING ASSET. THE LEARNED CIT(A) FOLLOWING THE DECISION OF THE APEX COURT IN THE CASE OF SARAVANA SPINNING MILLS, 293 ITR 201 ALLOWED THE CLAIM OF TH E ASSESSEE. IN THE CATEGORY D THE ASSESSEE CLAIMED FABRICATION CHARG E OF RS.8,63,042/- ON WHICH THE ASSESSEE SUBMITTED THAT THESE EXPENSES RE PRESENTED FABRICATION AND MODIFICATION WORK CARRIED OUT IN VARIOUS DEPART MENTS OF THE FACTORY BUILDING AND MANUFACTURING PLANT. IT WAS THEREFORE NOTED THAT THE MODIFICATION OF ANY STRUCTURE WOULD BE DONE TO IMPR OVE THE CONDITIONS AND THEREFORE WOULD RESULT IN ENDURING BENEFIT TO T HE ASSESSEE. THE LEARNED CIT(A) THEREFORE CONFIRMED THE ADDITION OF RS.8,63,042/- BEING CAPITAL IN NATURE. THE LEARNED COUNSEL FOR THE ASS ESSEE SUBMITTED THAT IN A.Y.2005-2006, THE TRIBUNAL IN THE CASE OF THE SAME ASSESSEE IN ITA NO.3175/AHD/2008 (SUPRA) ALLOWED THE CLAM OF THE AS SESSEE VIDE PAGE NO.11, PARA-17 OF THE ORDER. 10. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LEARNED CIT(A). THE LEARNED CIT(A) IN THE EXPLANATION OF THE ASSESSEE N OTED THE DETAILS OF THE FABRICATION CHARGES AND REASONS FOR DISALLOWANCE. THE LEARNED CIT(A) ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -7- HOWEVER NOTED THAT THE MODIFICATION OF ANY STRUCTUR E WOULD BE DONE TO IMPROVE THE CONDITIONS AND WOULD RESULT IN ENDURING BENEFIT TO THE ASSESSEE. NO OTHER REASONS HAVE BEEN GIVEN FOR REJ ECTING THE CLAIM OF THE ASSESSEE. THE LEARNED CIT(A) IS REQUIRED TO PASS A REASONED ORDER AS PER SECTION 250(6) OF THE IT ACT. IN THE PRECEDING ASS ESSMENT YEAR, 2005- 2206, THE TRIBUNAL NOTED THE FACT THAT THE ASSESSEE INCURRED EXPENSES IN REPAIRS OF 2 DG SETS. HOWEVER, THE FACTS ARE NOT I DENTICAL IN ASSESSMENT YEAR UNDER APPEAL BECAUSE FABRICATION CHARGES WERE NOT FOUND TO BE CONNECTED WITH REPAIR TO TWO DG SETS. SINCE FACTS ARE NOT IDENTICAL, AS WERE CONSIDERED IN A.Y.2005-2006, THE LEARNED CIT(A ) HAS NOT PASSED ANY REASONED ORDER ON THE MATTER IN ISSUE, THEREFOR E, WE SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND RESTORE THIS ISSUE TO THE FILE OF THE LEARNED CIT(A) WITH THE DIRECTION TO RE-DECIDE THIS ISSUE BY GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE LEARNED CIT(A) SHALL PASS A REASONED ORDER CONSIDERING THE EXPLANATION OF THE ASSESSEE ON THIS ISSUE. ACCORDINGLY, GROUND NO.4 O F THE ASSESSEES CO IS ALLOWED FOR STATISTICAL PURPOSE. 11. BY GROUND NO.4, THE ASSESSEE HAS CHALLENGED THE ORDER OF THE AUTHORITIES BELOW IN REDUCING THE INCOME ON ACCOUNT OF EXPORT INCENTIVE AND INTEREST INCOME FROM THE UNDERTAKING ON THE GRO UND THAT THE SAME ARE NOT INCOME OF THE UNDERTAKING ELIGIBLE TO CLAIM DED UCTION UNDER SECTION 80IB. THE LEARNED CIT(A) NOTED THAT THE ISSUE IS C OVERED AGAINST THE ASSESSEE BY THE ORDER OF HIS PREDECESSOR FOR A.Y.20 03-2004 IN ASSESSEES OWN CASE. THE LEARNED CIT(A) ALSO NOTED THAT THE I SSUE IS ALSO COVERED AGAINST THE ASSESSEE BY THE DECISION OF THE APEX CO URT IN THE CASE OF LIBERTY INDIA VS. CIT, ORDER DATED 31.08.2009, 317 ITR 218 IN WHICH IT HAS BEEN HELD THAT THE DUTY DRAW BACK RECEIPT/DEPB BENEFITS DO NOT FORM ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -8- PART OF THE NET PROFITS OF ELIGIBLE INDUSTRIAL UNDE RTAKING FOR THE PURPOSES OF SECTION 80I/80IB OF THE ACT. THE LEARNED CIT(A) AC CORDINGLY CONFIRMED THE ORDER OF THE AO. THE LEARNED COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE OR DER OF THE ITAT IN THE CASE OF THE SAME ASSESSEE FOR A.Y.2004-2005 IN ITA NO.4517/AHD/2007 AND 18/AHD/2007 (SUPRA). HE HAS REFERRED TO PARA-1 5 OF THE ORDER DATED 19-12-2008. SINCE THE TRIBUNAL DECIDED THE ISSUE A GAINST THE ASSESSEE IN A.Y.2004-2005 (SUPRA) AND THAT THE ISSUE IS NOW COV ERED BY THE HONBLE APEX COURT IN THE CASE OF LIBERTY INDIA (SUPRA), WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CI T(A). WE CONFIRM THE SAME AND DISMISS THIS GROUND OF THE ASSESSEES CO. NO OTHER ARGUMENTS WERE MADE BEFORE US. IN THE RESULT, DEPARTMENTS APPEAL IS DISMISSED AND THE CO OF THE ASSESSEE IS PARTLY ALLOWED FOR ST ATISTICAL PURPOSE. ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 12. IN THIS APPEAL, THE REVENUE HAS CHALLENGED THE ORDER OF THE CIT(A) IN REVERSING THE FINDINGS OF THE AO, IN THAT THE LO NG TERM CAPITAL GAIN OFFERED BY THE ASSESSEE ON SALE OF SHARES WAS ASSES SABLE AS BUSINESS PROFIT. THE LEARNED CIT(A) FOLLOWING HIS ORDER IN THE SAME ASSESSEE FOR A.Y.2004-2205 ALLOWED THE CLAIM OF THE ASSESSEE OF LONG TERM CAPITAL GAIN. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE ITAT, AHME DABAD BENCH IN THE CASE OF THE ASSESSEE AND OTHERS VIDE COMMON ORDER D ATED 19-12-2008 (SUPRA) AND THE DEPARTMENTS APPEAL HAS BEEN DISMIS SED. THE ISSUE IS SIMILAR AS IS CONSIDERED IN THE CASE OF SMT. SEEMA AJAY RANKA (SUPRA). 13. ON CONSIDERATION OF THE ABOVE FACTS, WE FIND TH AT THE TRIBUNAL DISMISSED THE DEPARTMENTS APPEAL ON THE IDENTICAL GROUND FOR A.Y.2004- ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -9- 2005 IN THE CASE OF THE SAME ASSESSEE AS WELL AS IN THE CASE OF SMT. SEEMA AJAY RANKA. BY FOLLOWING THE ORDER OF THE TRIBUNAL , WE DISMISS THIS GROUND OF THE REVENUES APPEAL. IN THE RESULT, DE PARTMENTS APPEAL IS DISMISSED. 14. IN THE CO OF THE ASSESSEE, THE ASSESSEE HAS CHA LLENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE ORDER OF THE AO FOR TR EATING THE SHORT TERM CAPITAL GAINS AS BUSINESS INCOME. THE LEARNED COUN SEL CONCEDED THAT THIS ISSUE IS DECIDED AGAINST THE ASSESSEE BY THE TRIBUN AL IN THE CASE OF THE SAME ASSESSEE, AS WELL AS IN THE CASE OF SMT. SEEMA AJAY RANKA IN WHICH THE TRIBUNAL CONFIRMED THE ORDER OF THE CIT(A) IN T REATING THE TRANSACTION THROUGH PMS TO BE INCOME FROM BUSINESS AND NOT AS C APITAL GAIN. SINCE THE TRIBUNAL HAS ALREADY DISMISSED THE APPEAL OF TH E ASSESSEE ON THE SIMILAR ISSUE, THEREFORE, WE CONFIRM THE ORDER OF T HE AUTHORITIES BELOW AS THE ISSUE BEING COVERED. NO OTHER ARGUMENTS WERE ADVANCED BEFORE US. IN THE RESULT, DEPARTMENTS APPEAL AS WELL AS CO AR E DISMISSED. 15. IN THE RESULT, BOTH THE DEPARTMENTS APPEALS AR E DISMISSED. CO IN THE CASE OF SMT. SEEMA AJAY RANKA IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. CO IN THE CASE OF THE ASSESSEE, DR. AJAY RANKA IS HOWEVER DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 31 ST MAY, 2011 SD/- SD/- (D.C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 31-05-2011 ITA NO.3301/AHD/2009 WITH CO NO.13/AHD/2010 ITA NO.3302/AHD/2009 WITH CO NO.14/AHD/2010 -10- C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD