THE ITO 5(2)(4), MUMBAI V. M/S PENTAGON BUILDERS P. LTD, MUMBAI

ITA 379/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101042 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Keywords: Business income; Rule of consistency
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER. ITA NO.379 /MUM/2011 (ASSESSMENT YEAR : 2007-08) THE ITO 5(2)(4), R.NO.566, 5 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 ..... APPELLANT VS. M/S.PENTAGON BUILDERS PVT. LTD. 6 TH FLOOR, DEEJAY APARTMENTS, 46, BHULABHAI DESAI ROAD, MUMBAI 400026. .... RESPONDENT ITA NO.5407/MUM/2012 (ASSESSMENT YEAR : 2009-10) M/S.PENTAGON BUILDERS PVT. LTD. 6 TH FLOOR, DEEJAY APARTMENTS, 46, BHULABHAI DESAI ROAD, MUMBAI 400026. .... APPELLAN T VS. THE ITO 5(2)(4), R.NO.566, 5 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 .... RESPONDENT C.O.NO.252/MUM/2012 (ARISING OUT OF ITA NO.379/MUM/2011 (ASSESSMENT YEAR : 2007-08) M/S.PENTAGON BUILDERS PVT. LTD. 6 TH FLOOR, DEEJAY APARTMENTS, 46, BHULABHAI DESAI ROAD, MUMBAI 400026. .... CROSS OBJECTOR VS. 2 M/S.PENTAGON BUILDERS PVT. LTD. THE ITO 5(2)(4), R.NO.566, 5 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 .... APPELLANT IN APPEAL REVENUE BY : SHRI PREMANAND J. ASSESSEE BY : SHRI DEEPAK TRASHAWALA DATE OF HEARING : 02/07/2015 DATE OF PRONOUNCEMENT : 11/09/2015 ORDER PER G.S. PANNU,AM: THE CAPTIONED APPEALS, PERTAINING TO ASSESSMENT Y EARS 2007-08 AND 2009-10 RELATE TO THE SAME ASSESSEE AND INVOLVE A COMMON ISSUE, THEREFORE, THEY HAVE BEEN CLUBBED AND HEARD TOGETH ER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF BREVITY. 2. THE ONLY ISSUE IN THE CAPTIONED APPEALS RELATES TO THE CHARACTERIZATION OF THE TRANSACTIONS OF PURCHASE AN D SALE OF SHARES/SECURITIES UNDERTAKEN BY THE ASSESSEE. THE ASSESSEE REFLECTED THE GAIN OR LOSS ON PURCHASE AND SALE OF SHARES AS ASSESSABLE UNDER THE HEAD CAPITAL GAINS TREATING THE SHARES/SECURITIES AS INVESTMENTS WHEREAS, THE ASSESSING OFFICER HAS TREATED THE TRAN SACTIONS OF PURCHASE AND SALE OF SHARES AS A TRADING ACTIVITY A ND ACCORDINGLY, THE RESULTANT GAIN/LOSS HAS BEEN ASSESSED AS BUSINESS I NCOME. IN ASSESSMENT YEAR 2007-08, THE CIT(A), FOLLOWING THE DECISION OF HIS PREDECESSOR IN CASE OF THE ASSESEE FOR ASSESSMENT Y EARS 2005-06 AND 2006-07 HELD THAT SO FAR AS THE TRANSACTION OF PURC HASE AND SALE OF SHARES RESULTING IN LONG TERM CAPITAL GAINS WAS CON CERNED, THE SAME WAS LIABLE TO BE TAXED UNDER THE HEAD CAPITAL GAINS AND THE PURCHASE AND 3 M/S.PENTAGON BUILDERS PVT. LTD. SALES OF SHARES RESULTING IN SHORT TERM CAPITAL GA INS WAS LIABLE TO BE TAXED AS BUSINESS INCOME. ACCORDINGLY, IN ASSESSME NT YEAR 2007-08, REVENUE IS IN APPEAL CHALLENGING THE ORDER OF THE CIT(A) HOLDING THAT THE TRANSACTION GIVING RISE TO LONG TERM CAPITAL GA INS ARE ASSESSABLE UNDER THE HEAD CAPITAL GAINS, WHEREAS THE ASSESSEE HAS FILED THE CROSS OBJECTION ASSAILING THE ORDER OF THE CIT(A) IN TREA TING THE SHORT TERM CAPITAL GAINS EARNED ON THE PURCHASE AND SALE OF SH ARES AS A BUSINESS INCOME. NOW, IN SO FAR AS THE ASSESSMENT YEAR 2009 -10 IS CONCERNED, THE ASSESSING OFFICER FOLLOWED HIS EARLIER STAND AN D TREATED THE ENTIRE TRANSACTIONS, MAY BE LONG TERM OR SHORT TERM, AS A SSESSABLE UNDER THE HEAD BUSINESS INCOME. THE CIT(A) HAS ALSO AFFIR MED THE ACTION OF THE ASSESSING OFFICER IN TOTO IN CONTRAST TO THE ASSES SMENT YEAR 2007-08, WHEREIN ONLY THE TRANSACTIONS RESULTING IN SHORT TE RM CAPITAL GAINS WERE HELD LIABLE TO BE ASSESSED AS BUSINESS INCOME. ACCORDINGLY, FOR ASSESSMENT YEAR 2009-10, THE ASSESSEE IS IN APPEAL BEFORE US. 3. IN THE ABOVE BACKGROUND, A PERTINENT FACT WHICH IS EMERGING IS THAT IN ASSESSMENT YEARS 2005-06 AS WELL AS 2006-07 , THE MUMBAI BENCH OF THE TRIBUNAL, IN THE CASE OF THE ASSESSEE VIDE ITA NOS. 4384/MUM/2008 DATED 29/10/2010 AND 6045/MUM/2009 & 6110/MUM/2009 DATED 22/12/2010 HAS CONSIDERED A SIM ILAR DISPUTE AND HELD THAT THE PROFIT OR LOSS EARNED ON TRANSAC TIONS OF PURCHASE AND SALE OF SHARES AND SECURITIES WAS LIABLE TO BE ASS ESSED AS BUSINESS INCOME. IN FACT IN ASSESSMENT YEAR 2009-10 BEFORE US, THE CIT(A) HAS FOLLOWED THE AFORE-STATED ORDERS OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2005-06(SUPRA) AND 200 6-07(SUPRA) AND 4 M/S.PENTAGON BUILDERS PVT. LTD. HELD THAT THE INCOMES EARNED ON TRANSACTIONS OF SAL E AND PURCHASE OF SHARES IS LIABLE TO ASSESSED AS BUSINESS INCOME. 4. IN THIS BACKGROUND, LD. REPRESENTATIVE FOR THE A SSESSEE HAS VEHEMENTLY ARGUED THAT THE FACT-POSITION IN ASSESSM ENT YEARS UNDER CONSIDERATION IS QUITE DIFFERENT FROM THOSE CONSI DERED BY THE TRIBUNAL IN ASSESSMENT YEARS 2005-06(SUPRA) AND 2006-07(SUPR A). BY ADVERTING TO THE PAPER BOOK FILED FOR THE ASSESSMENT YEAR 20 07-08, IT IS CONTENDED THAT THE DETAILS OF THE LONG TERM CAPITAL GAIN FOR THE ASSESSMENT YEAR 2007-08 AMOUNTING TO RS.22,86,675/- SHOW THAT ASSESSEE HAS DEALT WITH IN ONLY 5 SCRIPS AND THAT THERE IS NO REPETITIVE TRANSACTIONS. SIMILARLY, REFERENCE HAS BEEN INVITE D TO THE STATEMENT SHOWING SHORT TERM CAPITAL GAINS FOR THE YEAR UNDER CONSIDERATION AMOUNTING TO RS.1,16,989/-, WHEREBY IT IS CONTENDE D THAT TRANSACTIONS HAVE BEEN DONE IN 35 SCRIPS ONLY AND THE SAME DOES NOT SHOW ANY INTENTION TO TRADE IN SHARES. IT IS ALSO POINTED O UT WITH REFERENCE TO PROFIT AND LOSS ACCOUNT FOR THE ASSESSMENT YEAR 200 7-08, PLACED AT PAGE 14 OF THE PAPER BOOK TO POINT OUT THAT THERE I S A SMALL ELEMENT OF INTEREST OF RS.2540/- AND THAT THE SCHEDULE OF UNSE CURED LOANS IN THE BALANCE SHEET SHOWS THAT THE SAME ARE RAISED FROM O WN GROUP ENTITIES, AND THAT NO BORROWINGS HAVE BEEN USED FOR MAKING AN Y INVESTMENT IN SHARES/SECURITIES. LD. REPRESENTATIVE FOR THE ASSE SSEE ALSO REFERRED TO SCHEDULE-F OF THE BALANCE SHEET, PLACED AT PAGES 17 TO 18 OF THE PAPER BOOK TO DEMONSTRATE THAT THE RELEVANT SHARES/SECURI TIES HAVE BEEN CLASSIFIED AS INVESTMENTS AND NOT STOCK- IN- TRAD E. ACCORDINGLY, ON THE BASIS OF THE AFORESAID FACT-SITUATION, IT WAS SOUGH T TO BE POINTED OUT THAT THE NATURE AND THE MANNER IN WHICH THE TRANS ACTIONS HAVE BEEN 5 M/S.PENTAGON BUILDERS PVT. LTD. CARRIED OUT DOES NOT REFLECT ANY INTENTION TO TRAD E IN SHARES AND, THEREFORE, THE ASSESSING OFFICER ERRED IN TREATING THE TRANSACTIONS AS ASSESSABLE UNDER THE HEAD BUSINESS INCOME. 5. REFERRING TO THE ORDER OF THE TRIBUNAL DATED 29/ 10/2010(SUPRA) FOR ASSESSMENT YEAR 2005-06, THE LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE APPROPRIATE FACT POSITION WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL. IN THIS CONTEXT A REFERENC E HAS ALSO BEEN MADE TO AN AFFIDAVIT FILED BY THE DIRECTOR OF THE ASSESS EE COMPANY, NAMELY, SHRI CHARANEEP SINGH. IN THE SAID AFFIDAVIT THE A SSESSEE COMPANY HAS SOUGHT TO EXPLAIN THE CIRCUMSTANCES IN WHICH APPROP RIATE FACTS WERE NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL. THE RELEVAN T CONTENTS OF THE AFFIDAVIT ARE AS FOLLOWS:- 3. I SAY THAT THE ASSESSMENT ORDERS FOR THE ASSESS MENT YEAR 1998- 99,ASSESSMENT YEAR 1999-2000 & ASSESSMENT YEAR 200 3-04 ALONG WITH THE BALANCE SHEET FOR THESE YEARS, COLLECTIVELY APPEAR ING AT SERIAL NO.6 TO 14 OF THE INDEX TO THE PAPER BOOK WERE NOT FILED WHEN HON OURABLE TRIBUNAL HEARD THE APPEALS FOR THE ASSESSMENT YEAR 2005-2006 AND A SSESSMENT YEAR 2006- 07. THE HONOURABLE TRIBUNAL FOR THE SAID ASSESSMEN T YEAR 2005-2006 AND ASSESSMENT YEAR 2006-2007 HELD IN FAVOUR OF THE REV ENUE THAT THE INCOME ARISING FROM THE SALE OF SHARES WAS INCOME FROM BUS INESS AND NOT INCOME FROM CAPITAL GAINS AS DECLARED BY THE ASSESSEE. 4. I SAY THAT FOR THE YEARS PRIOR TO ASSESSMENT Y EAR 2005-2006 THE REVENUE HAD ASSESSED THE INCOME DECLARED BY THE ASSESSEE FR OM SALE OF SHARES AS EITHER INCOME FROM CAPITAL GAIN OR INCOME FROM BUSI NESS DEPENDING UPON THE TREATMENT GIVEN TO THE SHARES IN THE BALANCE SH EET AS INVESTMENTS OR STOCK - IN - TRADE. 5. I SAY THAT THE INCOME TAX MATTERS WERE FULLY ATT ENDED TO UNDER THE PERSONAL GUIDANCE OF PREVIOUS DIRECTOR SHRI. LATE D ARSHANJIT SINGH. HE HAD UNDERGONE AN ANGIOPLASTY OPERATION OF HIS HEART ON 17TH FEBRUARY, 2008 AND WAS THEREAFTER ADVISED A COMPLETE REST. DUE TO HIS MEDICAL CONDITION, HE WAS UNABLE TO GIVE HIS FULL ATTENTION TO THE INCOME TAX MATTERS AND BESIDES HIMSELF NO ONE IN THE COMPANY WAS CONVERSANT WITH T HE FACTS OF THE CASE. I SAY THAT AFTER THE PROLONGED ILLNESS FOR WHICH HE W AS ALSO HOSPITALIZED ON 6 M/S.PENTAGON BUILDERS PVT. LTD. VARIOUS DATED, THE SAID SHRI. DARSHANJIT SINGH EXPI RED ON 12TH NOVEMBER, 2010. 6. THE HONOURABLE TRIBUNAL PASSED THE ORDERS FOR T HE ASSESSMENT YEAR 2005- 2006 ON 29-10-2010 AND FOR ASSESSMENT YEAR 20 06-2007 ON 22-12- 2010. SHRI. DARSHANJIT SINGH PASSED AWAY ON 12-11-2 010. HENCE, I SAY THAT THE ASSESSEE DID NOT HAVE THE BENEFIT OF SHRI. DARS HANJIT SINGH'S GUIDANCE WHEN THE CASES FOR THE ASSESSMENT YEAR 2005-2006 AN D ASSESSMENT YEAR 2006-2007 CAME UP BEFORE THE HONOURABLE TRIBUNAL. 7. I SAY THAT THE CONSISTENT APPROACH OF THE ASSES SING OFFICER IN ASSESSING THE INCOME FROM THE SALE OF SHARES AS CAP ITAL GAIN OR INCOME FROM BUSINESS DEPENDING UPON THE TREATMENT GIVEN IN BALA NCE SHEET PRIOR TO ASSESSMENT YEAR 2005-06 CAME TO LIGHT ONLY WHEN OUR ADVOCATE ASKED FOR THESE DETAILS FOR ARGUING APPEALS BEFORE HONOURABLE BOMBAY HIGH COURT FOR THE 2005-2006 AND ASSESSMENT YEAR 2006-2007. THE A SSESSEES APPEALS HAVE BEEN ADMITTED BY THE HONOURABLE BOMBAY HIGH CO URT. 8. I SAY THAT UPON THE INSISTENCE OF OUR ADVOCATE, THE ASSESSEE COMPANY HAS FILED A PAPER BOOK CONTAINING THE ASSESSMENT OR DERS PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 1998-1999, ASSESSMENT YEAR 1999-2000 AND ASSESSMENT YEAR 2003-2004 TO HIG HLIGHT THE FACT THAT THE DEPARTMENT HAD FOLLOWED A CONSISTENT APPROACH R IGHT UPTO ASSESSMENT YEAR 2003-04 WHEN THE ASSESSMENT ORDERS PASSED UNDE R SECTION 143(3) OF THE INCOME TAX ACT,1961. 5.1 IN THE ABOVE BACKGROUND LD. REPRESENTATIVE FOR THE ASSESSEE SOUGHT TO MAKE OUT A CASE THAT EVEN PRIOR TO A.Y. 2 005-06 REVENUE HAD ASSESSED INCOME DECLARED BY THE ASSESSEE FROM SALE OF SHARES EITHER UNDER THE HEAD CAPITAL GAINS OR BUSINESS INCOME AS DEPICTED BY THE ASSESSEE IN ITS BALANCE SHEET. LD. REPRESENTATIVE F OR THE ASSESSEE POINTED OUT THAT THE INCOME FROM SALE OF SALES AS CAPITAL GAIN OR INCOME FROM BUSINESS WAS TAXED PRIOR TO A.Y 2005- 06 DEPENDING ON THE MANNER IN WHICH ASSESSEE HAD TREATED IT IN THE BALANCE SHEET. IN SUPPORT, REFERENCE WAS MADE TO THE COPIES OF THE A SSESSMENT ORDERS, COMPUTATION OF INCOME AND THE BALANCE SHEETS PERTAI NING TO ASSESSMENT YEARS 1998-99, 1999-00 AND ALSO 2003-04, WHEREIN ASSESSEES POSITION OF ASSESSING THE INCOME FROM SA LE OF SHARES AS 7 M/S.PENTAGON BUILDERS PVT. LTD. CAPITAL GAIN WAS UPHELD. THE RELEVANT PAPERS HAVE BEEN PLACED IN THE PAPER BOOK FILED BEFORE US. WHAT IS SOUGHT TO BE HIGHLIGHTED BY THE LD. REPRESENTATIVE APPEARING FOR THE ASSESSEE IS THE CO NSISTENT APPROACH OF THE REVENUE IN THE ASSESSMENTS MADE UNDER SECTION 1 43(3) OF THE ACT RIGHT UPTO ASSESSMENT YEAR 2003-04. 5.2 ON THE AFORESAID BASIS IT IS SOUGHT TO BE MADE OUT THAT IF PRINCIPLE OF CONSISTENCY WAS TO BE APPLIED IN A.Y 2005-06, I T OUGHT TO HAVE BEEN HELD THAT INCOME FROM PURCHASE AND SALE OF SHARES W AS LIABLE TO BE ASSESSED AS CAPITAL GAIN FOLLOWING THE PAST POSITIO N WHEN PRIOR TO A.Y 2005-06, SUCH INCOME WAS ASSESSED AS INCOME UNDER THE HEAD CAPITAL GAIN. LD. REPRESENTATIVE FOR THE ASSESSEE PUT FOR TH A PLEA THAT THE ORDERS OF THE TRIBUNAL FOR A.Y 2005-06(SUPRA) AND 2 006-07 (SUPRA) BE NOT FOLLOWED AND INSTEAD CONSISTENT APPROACH OF TH E REVENUE PRIOR TO ASSESSMENT YEAR 2005-06 BE CONSIDERED AND THE CLA IM OF THE ASSESSEE TREATING THE GAINS OF PURCHASE AND SALE OF SHARES A S CAPITAL GAINS BE UPHELD. IN SUPPORT OF THE AFORESAID APPROACH, REL IANCE HAS BEEN PLACED ON THE DECISION OF MUMBAI BENCH OF THE TRIBU NAL IN THE CASE OF SHRI CHHITUBHAI N PATEL, ITA NO.5238/MUM/2009 DATED 20/12/2012, WHEREIN ALSO UNDER SOMEWHAT SIMILAR CIRCUMSTANCES T HE TRIBUNAL UPHELD THE PLEA OF THE ASSESSEE OF TREATING THE GA IN ON SALE AND PURCHASE OF SHARES AS CAPITAL GAINS. 6. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE APPEARING FOR THE REVENUE HAS DEFENDED THE ACTION OF THE ASSE SSING OFFICER BY POINTING OUT THAT THE SAME IS IN CONSONANCE WITH TH E DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2005-06 (SUPRA) AND 2006-07(SUPRA). LD. DEPARTMENTAL REPRE SENTATIVE POINTED 8 M/S.PENTAGON BUILDERS PVT. LTD. OUT THAT THOUGH THE OBJECTS OF THE ASSESSEE ARE EXP ORT OF GARMENTS BUT NO SUCH ACTIVITY HAS BEEN CARRIED OUT AND THAT THE ONLY SIGNIFICANT ACTIVITY SHOWN IN THE BALANCE SHEET IS SALE AND PU RCHASE OF SHARES/ SECURITIES. LD. DEPARTMENTAL REPRESENTATIVE ALSO REFERRED TO THE FINANCIAL STATEMENTS FOR THE VARIOUS YEARS PLACED IN THE PAPER BOOK AND POINTED OUT THE FACT-SITUATION AS WELL AS THE MANNE R OF COMPUTATION OF THE INCOME FROM PURCHASE AND SALES OF SHARES CONTIN UES TO REMAIN THE SAME AS WAS CONSIDERED BY THE TRIBUNAL IN A.Y. 2006 -07(SUPRA). THEREFORE, HE HAS STRONGLY SUPPORTED THE STAND OF THE ASSESSING OFFICER TO POINT OUT THAT THE SAME BE UPHELD IN VIEW OF THE ORDERS OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSM ENT YEARS 2005-06 & 2006-07(SUPRA). LD. DEPARTMENTAL REPRESENTATIVE HAS ALSO REFERRED TO THE STATEMENT OF SHORT TERM CAPITAL GAINS FOR A.Y 2007-08 AND POINTED OUT THAT ALTHOUGH THE ASSESEE HAS TRANSACTED IN 35 SCRIPS, SO HOWEVER, NUMBER AND FREQUENCY OF TRANSACTIONS WAS QUITE HI GH AND IT WAS ASSERTED WITH RESPECT TO TRANSACTIONS IN THE CASE OF M/S. JINDAL VIJAY LTD., THAT THERE WERE REPETITIVE TRANSACTIONS DONE BY THE ASSESSEE. LD. DEPARTMENTAL REPRESENTATIVE ALSO ASSERTED THAT T HE FREQUENCY AND VOLUME OF THE TRANSACTION DOES INDICATE THAT IT WAS A CASE OF TRADING IN SHARES AND NOT A CASE OF SALE OF INVESTMENTS. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO CONTENDED THAT THERE IS NO MATE RIAL TO SAY THAT THE FACT-SITUATION IN THE INSTANT YEARS IS DIFFERENT FR OM WHAT WAS CONSIDERED BY THE TRIBUNAL IN ASSESSMENT YEARS 2005-06 AND 20 06-07 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE PERTINENT CONTROVERSY IN THE PRESENT APPEAL, WHICH WE HAVE ALREADY NOTED EARLIER, IS THE NATURE OF THE GAIN OR LOSS EA RNED BY THE ASSESSEE ON SALE AND PURCHASE OF SHARES AND SECURITIES. THE AS SESSEE IS A COMPANY 9 M/S.PENTAGON BUILDERS PVT. LTD. INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 AND ITS MAIN OBJECTS ARE STATED TO BE THE BUSINESS OF EXPORT OF READYMADE GARMENTS. IN THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. AS SESSMENT YEAR 2007- 08, THERE IS NO TRANSACTION OF EXPORT OF READYMADE GARMENTS CARRIED OUT BY THE ASSESSEE. THE MAJOR INCOMES CREDITED IN THE PROFIT & LOSS ACCOUNT ARE ON ACCOUNT OF SALE OF LONG TERM/SHORT TERM INVESTMENTS, DIVIDENDS AND INTEREST RECEIPT. IN THE COMPUTATION OF INCOME, THE PROFIT ON SALE OF LONG TERM/SHORT TERM CAPITAL GAINS CRED ITED IN THE PROFIT & LOSS ACCOUNT HAS BEEN RE-WORKED AS LONG TERM CAPI TAL GAINS OF RS.22,86,675/- AND SHORT TERM CAPITAL GAINS OF RS.1 ,16,989/-, DEPENDING ON THE PERIOD OF HOLDING OF THE RESPECTIVE SHARES/ SECURITIES. THE ENTIRE INCOME CLASSIFIED AS LONG TERM CAPITAL GAINS HAS BE EN CLAIMED EXEMPT UNDER SECTION 10(38) OF THE ACT. 7.1 THE CASE OF THE ASSESSING OFFICER IS THAT THE A SSESSEE HAS NOT CARRIED OUT ANY BUSINESS ACTIVITY AND THAT THE ACT IVITY OF SALE AND PURCHASE OF SHARES BY ITSELF WAS A TRADING ACTIVITY CARRIED OUT BY THE ASSESSEE. ACCORDING TO HIM ASSESSEE HAS INDULGED I N THE ACTIVITY OF SALE AND PURCHASE OF SHARES AS A BUSINESS VENTURE WITH A MOTIVE OF TRADING IN SHARES/SECURITIES. THUS, THE LONG TERM/SHORT TE RM CAPITAL GAINS DECLARED BY THE ASSESSEE HAS BEEN ASSESSED AS BUSIN ESS INCOME. 7.2 IN THIS CONTEXT, IN ASSESSMENT YEAR 2005-06, SI MILAR DISPUTE HAS ARISEN BETWEEN THE ASSESSEE AND THE REVENUE AND TRI BUNAL VIDE ITS ORDER DATED 29/10/2010(SUPRA) HAS UPHELD THE STAND OF THE ASSESSING OFFICER OF TREATING THE TRANSACTION OF DEALING IN S HARES AS A BUSINESS ACTIVITY. THE RELEVANT DISCUSSION IN THE ORDER OF THE TRIBUNAL DATED 29/10/2010 READS AS UNDER:- 10 M/S.PENTAGON BUILDERS PVT. LTD. 5. WE HAVE NOTED THAT AS REGARDS ASSESSEES CONTEN TION THAT INVESTMENTS WERE MADE TO EARN DIVIDENDS, A FACTUAL PROPOSITION ON WH ICH ALMOST ENTIRE WEB OF ARGUMENT RESTS, THE ACTUAL DIVIDEND EARNING DURING ENTIRE YEAR WAS RS 3,28,981 ON AN INVESTMENT OF RS 3,89,24,520. THIS WORKS OUT TO LESS THAN 1% YIELD ON INVESTMENTS, AND IT IS THUS DIFFICULT TO ACCEPT ASS ESSEES CONTENTION TO THE EFFECT THAT THE INVESTMENTS WERE MADE TO EARN DIVIDEND. WE HAVE ALSO NOTED THAT THE ASSESSEE HAS CONTENDED THAT TO EARN THESE DIVIDENDS , THE ASSESSEE HAD USED THE ADVANCES RECEIVED FROM THE CUSTOMERS. IN OUR UNDERS TANDING, IT IS CONTRARY TO NORMAL PRACTICES THAT THE COMMITTED FUNDS, IN THE N ATURE OF CUSTOMER ADVANCES, CAN BE USED FOR INVESTMENTS IN SHARES TO EARN DIVID ENDS. IT IS ALSO IMPORTANT TO BEAR IN MIND THE FACT THAT THE ENTIRE GARMENT EXPORTS DU RING THE RELEVANT PREVIOUS YEAR WAS ONLY TO THE TUNE OF RS 10.97 LAKHS, AND INVESTM ENT IN SHARES, WHICH IS SAID TO HAVE BEEN MADE OUT OF ADVANCES RECEIVED FOR THESE E XPORTS, WAS RS 389.24 LAKHS. THE INVESTMENTS THUS WORK OUT TO OVER 35 TIMES THE ANNUAL EXPORT TURNOVER, AND YET IT IS FUNDED OUT OF ADVANCES RECEIVED FOR EXPOR TS. IN THIS BACKDROP, THE FACTUAL CONTENTIONS OF THE ASSESSEE DONOT INSPIRE MUCH CONF IDENCE. THE ASSESSEE HAS CLAIMED THAT SINCE SHARES ARE HELD AS INVESTMENTS I N THE BOOKS OF ACCOUNTS, IT IS BEYOND DOUBT OR DISPUTE THAT THE SHARES ARE NOT HEL D AS STOCK IN TRADE. A LOT OF EMPHASIS IS PLACED ON THE FACT THAT THE SHARES ARE VALUED AT COST IN THE BALANCE SHEET WHICH IS DONE ONLY FOR INVESTMENTS AND NOT FO R STOCK IN TRADE, AS ALSO THE FACT THAT THE BALANCE SHEET SCHEDULES SHOW THESE SHARE H OLDINGS AS INVESTMENTS. UNDOUBTEDLY, THE ACCOUNTING TREATMENT IS IN IMPORTA NT FACTOR BUT THIS FACTOR PER SE CANNOT BE DECISIVE OF THE QUESTION WHETHER SHARES A RE HELD AS STOCK IN TRADE OR INVESTMENT. IT IS ALSO USEFUL TO NOTE THAT THE AUDI T REPORT, AT PAGE 88 OF THE PAPER BOOK, STATES THAT THE ASSESSEE IS DEALING IN SHARES AND FUTURES ETC. IT IS ONLY ELEMENTARY THAT IF A RECEIPT IS TRADING RECEIPT THE FACT THAT IT IS NOT SHOWN IN THE ACCOUNT OF THE ASSESSEE DOES ITA NO. 4384/MUM/2008 ASSESSMENT YEAR 2005-06 PAGE 6 OF 7 NOT PREVENT THE ASSESSING OFFICER IN TR EATING IT AS TRADING RECEIPT - CHOWRINGHEE SALES BUREAU P. LTD. 87 ITR 548 . ALL T HE SURROUNDING FACTORS ARE ALSO TO BE OBJECTIVELY CONSIDERED WHETHER OR NOT THE SHA RES WERE HELD AS INVESTMENTS OR AS STOCK IN TRADE AND THE ACCOUNTING TREATMENT IS N OT CONCLUSIVE FACTOR TO DETERMINE THIS QUESTION. AS A MATTER OF FACT, APPLY ING THE TESTS SUGGESTED BY THE ASSESSEE AT THE ASSESSMENT STAGE, IT IS CLEARLY NOT A CASE OF INVESTMENT SINCE THE PURPOSE OF THESE INVESTMENTS CANNOT BE TO SIMPLY EA RN DIVIDEND INCOME. WE HAVE ALSO NOTED, AS EVIDENT FROM A PERUSAL OF STATEMENTS OF LONG TERM AND SHORT TERM CAPITAL GAINS AT PAGES 14 TO 17 OF THE PAPERBOOK, T HAT THERE ARE SEVERAL TRANSACTIONS OF SALE AND PURCHASE IN RESPECT OF THE SAME SCRIP, WHICH REFLECTS THE SYSTEMATIC ACTIVITY OF SALE AND PURCHASE FOR THE PU RPOSE OF REALIZING GAINS ON PROFITS. IN SOME OF THE CASES, HOLDING PERIOD OF SH ARES IS JUST A FEW DAYS (SUCH AS 1, 5,6,8, AND 9 DAYS). THERE CAN NOT BE INVESTMENTS FO R SUCH SHORT PERIOD, AND THESE TRANSACTIONS CAN ONLY BE IN THE NATURE OF SHARE TRA DING TRANSACTIONS. THE ASSESSEE HAS ALSO USED BORROWED FUNDS, EVEN IF NOT ENTIRELY, FOR INVESTMENTS IN SHARES. THE ASSESSEE IS ALSO ENGAGED IN TRADING IN FUTURES AND OPTIONS WHICH SHOWS THAT THE ASSESSEE WAS ENGAGED IN THE KIND OF ACTIVITIES WHIC H BELONG TO THE SAME GENUS AS THE TRADING IN SHARES AND SECURITIES. THE PURCHASE OF SHARES OUT OF COMMITTED FUNDS 11 M/S.PENTAGON BUILDERS PVT. LTD. RECEIVED AS CUSTOMER ADVANCES CAN ORDINARILY BE ONL Y IN THE NATURE OF DEPLOYMENT OF FUNDS TO MAKE PROFITS BY DEALING IN SHARES RATHE R THAN INVESTING IN SHARES. ALL THESE FACTORS TAKEN TOGETHER CLEARLY SHOW THAT THE CLAIM OF THE ASSESSEE TO THE EFFECT THAT THESE SHARES WERE HELD AS INVESTMENTS , FOR THE PURPOSES OF EARNING DIVIDENDS, CANNOT BE ACCEPTED. ON THE CONTRARY, THE SE TRANSACTIONS ARE CLEARLY IN THE NATURE OF TRANSACTIONS AIMED AT EARNING FROM TR ADING IN SHARES. THE CIT(A) HAS THUS CLEARLY ERRED IN BEING GUIDED BY THE ACCOUNTIN G TREATMENT ALONE, AND DISREGARDING ALL THE RELEVANT AND SURROUNDING FACTS SET OF THE CASE. WE, THEREFORE, SEE MERITS IN THE GRIEVANCE OF THE ASSESSING OFFICE R AND UPHOLD THE SAME. 7.3 SUBSEQUENTLY, SIMILAR DISPUTE ALSO REACHED THE TRIBUNAL FOR ASSESSMENT YEAR 2006-07 AND WHILE DISPOSING OF THE CROSS-APPEALS OF ASSESSEE AND THE REVENUE, THE TRIBUNAL VIDE ITS ORD ER DATED 22/12/2010(SUPRA) UPHELD THE STAND OF THE ASSESSIN G OFFICER OF TREATING THE ENTIRE CAPITAL GAINS I.E. BOTH LONG TERM AS WEL L AS SHORT TERM, TO BE ASSESSABLE AS BUSINESS INCOME. THE TRIBUNAL ESSENT IALLY FOLLOWED THE EARLIER DECISION DATED 29/10/2010(SUPRA) ON THE GR OUND THAT THE EARLIER BENCH IN ASSESSMENT YEAR 2005-06 HAD REACHED TO A F ACTUAL FINDING THAT ASSESSEE HAD INDULGED IN BUSINESS TRANSACTION AND N OT AS INVESTMENTS. 7.4 IN THE ABOVE BACKGROUND THE LD. DEPARTMENTAL RE PRESENTATIVE APPEARING FOR THE REVENUE HAS CANVASSED THE POSI TION THAT THE IMPUGNED DISPUTE BE SETTLED IN FAVOUR OF THE REVENU E FOLLOWING THE PRECEDENTS IN ASSESSEES OWN CASE. LD. REPRESENTAT IVE FOR THE ASSESSEE ON THE OTHER HAND, HAS ATTEMPTED TO DEMONSTRATE THA T THE FACTS AND THE NATURE OF THE ACTIVITY CARRIED OUT IN THE INSTA NT ASSESSMENT YEAR STANDS ON A DIFFERENT FOOTING THAN THOSE IN ASSESSM ENT YEARS 2005-06 AND 2006-07 CONSIDERED BY THE TRIBUNAL. SECONDLY, IT HAS ALSO BEEN SOUGHT TO BE CANVASSED THAT GOING BY THE PRINCIPL E OF CONSISTENCY THE IMPUGNED TRANSACTIONS ARE LIABLE TO BE ASSESSED UND ER THE HEAD CAPITAL GAINS AND FOR THAT PURPOSE REFERENCE HAS BEEN INVIT ED TO THE ASSESSMENT COMPLETED BY THE ASSESSING OFFICER UNDE R SECTION 143(3) OF 12 M/S.PENTAGON BUILDERS PVT. LTD. THE ACT FOR ASSESSMENT YEAR 1998-99, 1999-2000 AND 2003-04, WHEREIN THE NATURE OF INCOME FROM PURCHASE AND SALE OF SHAR ES HAS BEEN ACCEPTED AS RETURNED. THE PLEA SET UP BY THE ASSES SEE IS THAT THE ADJUDICATION BY THE TRIBUNAL FOR ASSESSMENT YEARS 2005-06 AND 2006- 07 BE IGNORED AND THE CONSISTENT POSITION OF YEA RS PRIOR THEREOF OUGHT TO BE ACCEPTED AND THAT THE SAME SHOULD G OVERN THE TREATMENT OF THE INSTANT TRANSACTIONS OF PURCHASE AND SALE OF SHARES. 7.5 NO DOUBT, EACH ASSESSMENT YEAR IS AN INDEPENDEN T UNIT OF ASSESSMENT AND THE PRINCIPLES OF RES-JUDICATA ARE N OT APPLICABLE IN THE INCOME TAX ASSESSMENTS. SO HOWEVER, IT HAS ALSO TO BE APPRECIATED THAT A FACT-SITUATION OR A FINDING WITH REGARD TO AN ISS UE, WHICH PERMEATES THROUGH MORE THAN ONE ASSESSMENT YEAR, DESERVES TO BE APPLIED UNIFORMLY. IN THIS BACK GROUND OF THE MATTER, THE MOOT QUESTION IS AS TO WHETHER THE ADJUDICATION RENDERED BY THE TRIBUNAL IN ASSESSMENT YEAR 2005-06(SUPRA) AFTER ANALYSING THE ENTIRE FACTUAL MATRIX WITH REGARD TO THE NATURE OF ACTIVITIES OF SALE AND PURCHASE AND SALE OF SHARES CARRIED OUT BY THE ASSESSEE, AND WHICH HAS BEEN FURTHER UPH ELD IN ASSESSMENT YEAR 2006-07(SUPRA), CAN BE REVISITED BY A SUBSEQ UENT BENCH WITHOUT THERE BEING ANY COGENT AND COMPELLING REASONS FOR M AKING A DEPARTURE. OSTENSIBLY, THE PLEA OF THE ASSESSEE FOR MAKING A D EPARTURE FROM THE ORDERS OF THE TRIBUNAL FOR ASSESSMENT YEARS 2005-06 AND 2006-07 DESERVES TO BE EXAMINED IN THE LIGHT OF THE APPLICA BLE FACTUAL POSITION. IN THIS REGARD, WE FIND THAT THE PATTERN IN WHICH A SSESSEE HAS UNDERTAKEN ITS ACTIVITY OF PURCHASE AND SALE OF SHA RES IS QUITE IN CONSONANCE WITH THE ACTIVITIES UNDERTAKEN IN ASSESS MENT YEARS 2005-06 AND 2006-07 (SUPRA). ON THIS ASPECT THE LD. REPRES ENTATIVE APPEARING FOR THE ASSESSEE POINTED OUT THAT THE FACT POSITIO N PRIOR TO ASSESSMENT 13 M/S.PENTAGON BUILDERS PVT. LTD. YEAR 2005-06 SHOULD BE RECOGNIZED, WHEREBY THE REVE NUE HAD ASSESSED THE INCOME DECLARED BY THE ASSESSEE FROM SALE OF S HARES AS EITHER INCOME FROM CAPITAL GAIN OR INCOME FROM BUSINESS, D EPENDING UPON THE TREATMENT GIVEN TO THE SHARES IN THE RESPECTIVE BA LANCE SHEETS AS INVESTMENT OR STOCK-IN-TRADE. ON THE STRENGT H OF THE SAID ARGUMENTS, IT IS SOUGHT TO BE CONTENDED THAT THE RU LE OF CONSISTENCY SUPPORTS THE ASSESSEE, BECAUSE UPTO ASSESSMENT YE AR 2003-04 REVENUE HAD ASSESSED THE INCOME DECLARED BY THE ASS ESSEE FROM SALE OF SHARES AS EITHER INCOME FROM CAPITAL GAIN OR IN COME FROM BUSINESS, DEPENDING UPON THE TREATMENT GIVEN TO THE SHARES I N THE RESPECTIVE BALANCE SHEETS AS INVESTMENT OR STOCK-IN-TRADE . IN OUR CONSIDERED OPINION, THE SAID PLEA CANVASSED BY THE ASSESSEE DO ES NOT JUSTIFY DEPARTURE FROM THE DECISIONS OF THE TRIBUNAL FOR AS SESSMENT YEAR 2005- 06 DATED 29/10/2010(SUPRA) AS ALSO THE DECISION FOR ASSESSMENT YEAR 2006-07 DATED 22/12/2010(SUPRA). WE MAY NOTICE HER E THAT WHILE ADJUDICATING THE DISPUTE IN ASSESSMENT YEAR 2005-06 , THE TRIBUNAL DID CONSIDER THE PLEA THAT PRIOR TO 31/3/2004 THE SHARE S WERE SHOWN AS INVESTMENTS. FOR THIS, WE MAY REFER TO PARA-2 OF T HE ORDER OF THE TRIBUNAL DATED 29/10/2010 (SUPRA) FOR ASSESSMENT YE AR 2005-06, WHEREIN OPERATIVE PORTION OF THE ORDER OF THE C IT(A) HAS BEEN REPRODUCED. NOTABLY, IN ASSESSMENT YEAR 2005-06 TH E CIT(A) HAD UPHELD THE STAND OF THE ASSESSEE THAT THE GAIN EARN ED ON SALE OF SHARES WAS LIABLE TO BE ASSESSED UNDER THE HEAD CAPITAL GA INS AS AGAINST THE STAND OF THE ASSESSING OFFICER ON TREATING SUCH GAI N AS BUSINESS INCOME. IN COMING TO SUCH CONCLUSION THE CIT(A) SPECIFICAL LY HELD THAT PRIOR TO 31.3.2004 ALSO, THE IMPUGNED SHARES HAVE BEEN SHOWN AS INVESTMENTS 14 M/S.PENTAGON BUILDERS PVT. LTD. ONLY AND THE IMPUGNED SHARES WERE HELD BY THE ASSE SSEE FOR SUFFICIENTLY LONG PERIOD 7.6 THE AFORESAID OBSERVATION OF THE CIT(A) HAVE DU LY BEEN NOTED BY THE TRIBUNAL AND IT IS ONLY THEREAFTER THE TRIBUNA L PROCEEDED TO HOLD THAT THE ACTIVITY OF PURCHASE AND SALE OF SHARES WA S IN THE NATURE OF TRADING ACTIVITY. WE ARE ONLY TRYING TO POINT O UT THAT IN THE COURSE OF DETERMINATION OF DISPUTE IN ASSESSMENT YEAR 2005-06 (SUPRA), THE TRIBUNAL WAS CONSCIOUS OF THE POSITION THAT IN THE EARLIER PERIOD SUCH SHARES WERE BEING HELD AS INVESTMENTS. THEREFORE , AT THIS STAGE, THIS BENCH CANNOT RE-APPRECIATE THE WHOLE ISSUE ALL OVER AGAIN AND DEPART FROM THE FINDINGS OF THE BENCH FOR ASSESSMENT YEAR 2005-06(SUPRA), WHICH HAS DULY CONSIDERED THE FACT POSITION PREVAI LING PRIOR TO THE ASSESSMENT YEAR 2005-06. AS A CONSEQUENCE, WE, TH EREFORE, DO NOT FIND ANY COGENT AND CREDIBLE REASON TO DEPART FROM THE PRECEDENTS BY WAY OF THE ORDERS OF THE TRIBUNAL FOR ASSESSMENT YE ARS 2005-06 AND 2006-07 (SUPRA), WHEREIN THE ASSESSEES TRANSACTION OF PURCHASE AND SALE OF SHARES HAVE BEEN HELD LIABLE TO BE ASSESSE D AS BUSINESS INCOMES. THUS, ON THIS ASPECT, ASSESSEE FAILS. 7.7 BEFORE PARTING, WE MAY REFER TO THE RELIANCE PL ACED BY THE LD. REPRESENTATIVE APPEARING FOR THE ASSESSEE ON THE DE CISION OF OUR CO- ORDINATE BENCH IN THE CASE OF SHRI CHHITUBHAI N PA TEL(SUPRA). IN THE SAID CASE, TRIBUNAL WAS DECIDING THE HEAD UNDER WHI CH THE INCOME FROM PURCHASE AND SALE OF SHARES WAS LIABLE TO BE ASSES SED I.E. WHETHER CAPITAL GAINS OR BUSINESS INCOME, IN RELATION TO A SSESSMENT YEAR 2006- 07. THE REVENUE HAD POINTED OUT THAT IN ASSESSMENT YEAR 2004-05 ASSESSEE HAD HIMSELF ADMITTED THE INCOME FROM PURC HASE AND SALE OF 15 M/S.PENTAGON BUILDERS PVT. LTD. SHARES AS BUSINESS INCOME AND THEREFORE, IT SHOULD BE ASSESSABLE AS SUCH IN ASSESSMENT YEAR 2006-07 ALSO. IT WAS PO INTED OUT THAT EVEN PRIOR TO ASSESSMENT YEAR 2004-05 THE ASSESSEE WAS SHOWING THE PURCHASE OF SHARES AS INVESTMENT IN THE BOOKS OF AC COUNT AND EVEN IN THE YEARS SUBSEQUENT TO THE ASSESSMENT YEAR 2004-05 , THE PURCHASE OF SHARES WAS SHOWN AS INVESTMENTS. IN ASSESSMENT YEA R 2006-07 THE TRIBUNAL HELD THAT THE TRANSACTION OF PURCHASE AND SALE OF SHARES WAS IN THE NATURE OF INVESTMENT AND NOT TRADING IN SHARES . THE TRIBUNAL NOTED THAT SO FAR AS RULE OF CONSISTENCY WAS CONCERNED, E VEN PRIOR TO ASSESSMENT YEAR 2004-05 ASSESSEE WAS SHOWING THE SH ARES AS INVESTMENTS AND THAT THE SAME SHOULD HAVE BEEN APPL IED IN ASSESSMENT YEAR 2004-05 ALSO, WHERE ASSESSEE HAD HIMSELF CHANG ED THE METHOD OF ACCOUNTING IN COMPARISON TO EARLIER YEAR AS WELL A S IN THE SUBSEQUENT YEARS. THIS OBSERVATION OF THE BENCH IS SOUGHT TO BE EMPHASIZED BY THE LD. REPRESENTATIVE FOR THE ASSESSEE BEFORE US TO SU PPORT HIS PLEA THAT THE ORDERS OF THE TRIBUNAL FOR ASSESSMENT YEARS 200 5-06 AND 2006-07 IN ASSESSEES OWN CASE BE DISREGARDED AND INSTEAD THE POSITION PRIOR TO ASSESSMENT YEAR 2004-05 BE APPLIED AS PER RULE OF C ONSISTENCY. IN OUR CONSIDERED OPINION, THE DECISION IN THE CASE OF S HRI CHHITUBHAI N PATEL(SUPRA) HAS BEEN RENDERED IN THE BACKGROUND OF ITS OWN FACTS AND CIRCUMSTANCES. IN FACT, THE TRIBUNAL SUBSEQUENTLY NOTICED THAT SINCE THERE ARE DECISIONS ON BOTH SIDES ON THIS POINT, TH EREFORE, EACH CASE HAS TO BE DECIDED ON ITS OWN FACTS THE AFORESAID OBSERVATION OF THE TRIBUNAL ITSELF SUGGESTS THAT EACH CASE IS TO BE D ECIDED HAVING REGARD TO THE TOTALITY OF ITS FACTS AND CIRCUMSTANCES. THERE FORE, IN OUR VIEW THE DECISION IN THE CASE OF SHRI CHHITUBHAI N PATEL(SU PRA) RELIED UPON DOES NOT HELP THE ASSESSEE IN THE PRESENT CASE. 16 M/S.PENTAGON BUILDERS PVT. LTD. 7.8 IN CONCLUSION, WE, THEREFORE, HOLD THAT THE GAI N/LOSS ON PURCHASE AND SALE OF SHARES, MAY IT BE LONG TERM OR SHORT TE RM, BE ASSESSED AS BUSINESS INCOME AND NOT AS CAPITAL GAIN BEING CANV ASSED BY THE ASSESSEE. 7.9 IN THE RESULT, SO FAR AS ASSESSMENT YEAR 2007-0 8 IS CONCERNED, THE APPEAL OF THE REVENUE IS ALLOWED AND THE CROSS OBJE CTION FILED BY THE ASSESSEE IS DISMISSED. 8. AT THE TIME OF HEARING, IT WAS A COMMON POINT BE TWEEN THE PARTIES THAT SO FAR AS FACTS AND CIRCUMSTANCES FOR ASSESSMENT YEAR 2009- 10 ARE CONCERNED, THEY ARE IDENTICAL TO THOSE CONSI DERED BY US FOR ASSESSMENT YEAR 2007-08. THEREFORE, OUR DECISION I N RELATION TO ASSESSMENT YEAR 2007-08 SHALL APPLY MUTATIS-MUTANDIS IN ASSESSMENT YEAR 2009-10 ALSO. ACCORDINGLY, THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 IS ALSO DISMISSED. 9. RESULTANTLY, WHEREAS THE APPEAL OF THE REVENUE F OR ASSESSMENT YEAR 2007-08 IS ALLOWED, THE CROSS OBJECTION AND AP PEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2007-08 AND 2009-10 RESPECTIVEL Y ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/09/2015. SD/- SD/- (AMIT SHUKLA) (G.S.PANNU) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI, DATED11/09/2015 17 M/S.PENTAGON BUILDERS PVT. LTD. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBA I VM , SR. PS