Renu Goel, New Delhi V. ITO, New Delhi

ITA 3629/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7548 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 26-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Assessee Lawyers: S R WADHWA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH F FF F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU, JUDICIAL , JUDICIAL , JUDICIAL , JUDICIAL MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO. .. .3629/DEL/2013 3629/DEL/2013 3629/DEL/2013 3629/DEL/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 SMT. RENU GOEL, SMT. RENU GOEL, SMT. RENU GOEL, SMT. RENU GOEL, C CC C- -- -2/44, ASHOK VIHAR, 2/44, ASHOK VIHAR, 2/44, ASHOK VIHAR, 2/44, ASHOK VIHAR, PHASE PHASE PHASE PHASE- -- -II, II,II, II, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. P PP PAN : AAGPG1426Q. AN : AAGPG1426Q. AN : AAGPG1426Q. AN : AAGPG1426Q. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -19(2), 19(2), 19(2), 19(2), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.R. WADHWA, ADVOCATE. RESPONDENT BY : SHRI VIKRAM SAHAY, SR.DR. ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED CIT(A)-XXII, NEW DELHI DATED 30 TH JANUARY, 2013 FOR THE AY 2008-09. 2. THE ONLY GROUND RAISED IN THIS APPEAL IS AGAINST THE ASSESSMENT OF A SUM OF `5,64,058/- AS INCOME FROM BUSINESS AS AGAINST INCOME FROM LONG TERM CAPITAL GAIN DISCLOSED BY THE ASSESS EE. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D PERUSED RELEVANT MATERIAL PLACED BEFORE US. THE FACTS OF T HE CASE ARE THAT THE ASSESSEE HAD PURCHASED 7500 SHARES OF NTPC DURING T HE FINANCIAL YEAR 2004-05. THE SAME WAS DISCLOSED IN THE BOOKS AS IN VESTMENT. OUT OF ABOVE 7500 SHARES, 1100 SHARES WERE SOLD DURING FY 2006-07 AND THE ASSESSEE OFFERED THE INCOME FROM SALE OF SUCH SHARE S AS CAPITAL GAIN IN THE ASSESSMENT FOR AY 2007-08 WHICH WAS ACCEPTED BY THE REVENUE. ITA-3629/DEL/2013 2 DURING THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT Y EAR UNDER CONSIDERATION, THE ASSESSEE SOLD THE REMAINING SHAR ES AND OFFERED THE INCOME AS INCOME FROM LONG TERM CAPITAL GAIN. HOWE VER, THE ASSESSING OFFICER TREATED THE INCOME AS BUSINESS INCOME BECAU SE DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE STARTED TRADING I N SOME OF THE SHARES AND THE COMMON DEMAT ACCOUNT AS WELL AS BANK ACCOUNT WAS KEPT BY THE ASSESSEE. AFTER CONSIDERING THE ARGUME NTS OF BOTH THE SIDES AND THE FACTS OF THE CASE, WE ARE UNABLE TO A GREE WITH THE FINDING OF THE LOWER AUTHORITIES. IT IS SETTLED LAW THAT T HE ASSESSEE CAN CARRY ON THE BUSINESS OF THE SHARES AND, AT THE SAME TIME, H OLD SOME SHARES AS INVESTMENT. THE INCOME FROM SALE OF THE SHARES HEL D AS INVESTMENT WOULD BE ASSESSED AS CAPITAL GAIN. ADMITTEDLY, 750 0 SHARES OF NTPC WERE PURCHASED AS INVESTMENT AND WAS ACCEPTED AS SU CH IN THE PRECEDING YEARS. THESE SHARES WERE NEVER CONVERTED INTO STOCK IN TRADE. MERELY BECAUSE THERE IS SAME DEMAT ACCOUNT OR THE SAME BANK ACCOUNT IN RESPECT OF TRADING OF SHARES AS WELL AS INVESTMENT IN SHARES WOULD BE NO GROUND TO TREAT THE PROFIT FROM SALE OF SHARES HELD AS INVESTMENT TO BE BUSINESS INCOME. IN VIEW OF THE A BOVE, WE DIRECT THE ASSESSING OFFICER TO ASSESS THE PROFIT FROM SALE OF SHARES OF NTPC WHICH WERE HELD AS INVESTMENT AS LONG TERM CAPITAL GAIN. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 12 TH DECEMBER, 2014. SD/- SD/- ( (( ( H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU ) )) ) (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL ) )) ) JUDICIAL ME JUDICIAL ME JUDICIAL ME JUDICIAL ME MBER MBER MBER MBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 12.12.2014 VK. ITA-3629/DEL/2013 3 COPY FORWARDED TO: - 1. APPELLANT : SMT. RENU GOEL, SMT. RENU GOEL, SMT. RENU GOEL, SMT. RENU GOEL, C CC C- -- -2/44, ASHOK VIHAR, PHASE 2/44, ASHOK VIHAR, PHASE 2/44, ASHOK VIHAR, PHASE 2/44, ASHOK VIHAR, PHASE- -- -II, NEW DELHI. II, NEW DELHI. II, NEW DELHI. II, NEW DELHI. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -19(2), NEW DELHI. 19(2), NEW DELHI. 19(2), NEW DELHI. 19(2), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR