Smt. Vanita Chamria, Kolkata V. ACIT, Central Circle - VI, Kolkata, Kolkata

ITA 405/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48074 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 24-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C NAYAK
• Keywords: Capital asset; Business income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND , . !' . #$ ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SHR I C. D. RAO, AM] % % % % / I.T.A NO. 405/KOL/2010 &' () &' () &' () &' ()/ // / ASSESSMENT YEAR: 2006-07 SMT. VANITA CHAMARIA (PAN AENPC 4812 R) (+, /APPELLANT ) VS ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-VI, KOLKATA (-.+,/ RESPONDENT ) FOR THE APPELLANT: SHRI RAVI TULSIYAN FOR THE RESPONDENT: SHRI P. C. NAYAK #/ / ORDER PER SHRI C. D. RAO, AM/ . .. .!' !'!' !'. .. . , , , , #$ #$ #$ #$ THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 24.12.2009 FOR THE ASSESSMENT YEAR 2 006-07 ON THE FOLLOWING SOLE EFFECTIVE GROUND: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE TREATMENT OF THE LOSS OF RS.9,30,375/- ARISING OUT OF TRANSACTIONS IN SHARES, AS SHORT TERM CAPITAL LOSS INSTEAD OF AS BUSINESS LOSS AND IN TH AT VIEW, IN REFUSING TO ALLOW SET OFF OF THE SAID LOSS AGAINST THE OTHER INCOME OF THE APPELLANT. 2. THE ISSUE INVOLVED IN THIS APPEAL IS RELATING TO TREATMENT OF LOSS OF RS.9,30,375/- AS BUSINESS LOSS AS AGAINST SHORT TERM CAPITAL LOSS TR EATED BY THE REVENUE AUTHORITIES. BRIEF FACTS OF THE CASE ARE THAT WHILE DOING THE SCRUTINY ASSES SMENT, THE ASSESSING OFFICER HAS TREATED THE SHORT TERM CAPITAL LOSS OF RS.9,30,375/- BY OBSERVI NG AS UNDER: THE ASSESSEE PURCHASED SHARES OF RS.11,25,000/- DU RING THE YEAR. THE SAME SHARES WAS SOLD DURING THE YEAR AT RS.1,94,625/- THUS SHE SUFFERED SHORT TERM CAPITAL LOSS AT RS.9,30,375/-. SHORT TERM CAPITAL LOSS SHALL BE SET OFF ONLY FROM CAPITAL GAIN INCOME. IT SHALL NOT BE SET OFF OUT OF INCOME FROM OTHER HEADS OF THE SAME YEAR, HE NCE RS.9,30,375/- IS TO BE CARRIED FORWARD TO NEXT YEAR TO BE SET OFF IF CAPITAL GAIN ARISES. THE A/R OF THE ASSESSEE HAS ARGUED THAT IT IS VERY WELL A BUSINESS TRANSACTION HENCE THE LOSS SHOULD BE TREATED AS BUSINESS LOSS. THE CONTENTION OF THE A/R IS NOT TENABLE. THE ASSESSEE CARRIED OUT SUCH A SINGLE PURCHASE AND SALE OF SHAR ES IN LAST YEAR ALSO. IN DOING BUSINESS, SALE AND PURCHASE IS DONE FREQUENTLY. THE ASSESSEE TRIE S TO RECOVERY HER LOSS IN ONE TRANSACTION FROM OTHER TRANSACTIONS. IT IS A CASE AS IF THE ASSESSE E INTENDED TO SUFFER SUCH LOSS. SINGLE PURCHASE AND SINGLE SALE CANNOT CONSTITUTE A BUSINESS. 3. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ACTION O F THE ASSESSING OFFICER BY OBSERVING AS UNDER: ITA NO.405/K/2010 A.Y 06-07 2 4. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF T HE LD. A.R. THE ASSESSEE IS A SALARIED EMPLOYEE. DURING THE YEAR UNDER CONSIDERATION THE A SSESSEE HAS DECLARED RECEIPT FROM SALARY OF RS. 10,41,000/ , RENTAL INCOME OF RS. 2,16,000/ AND INTEREST INCOME FROM LOAN OF RS. 8,26,161/ AND OTHER MISC RECEIPTS. THE ABOVE INCOME HAS BEEN SET-OFF FROM LOSS ON SHARE TRANSACTION OF RS. 9,30,375/-. NOW THE ISSUE UNDER CONSIDERATION I S WHETHER THE LOSS ON SALE OF SHARES SHOULD BE TREATED AS BUSINESS LOSS OR SHORT TERM CAPITAL L OSS. AS PER BALANCE SHEET OF THE ASSESSEE SHARE HAS ALWAYS BEEN SHOWN AS INVESTMENT AND AS ON 31.03 .2006 THE ASSESSEE HAS INVESTED RS 15,26,322/- II SHARES OF VARIOUS COMPANIES. NO SHAR ES HAS BEEN SHOWN STOCK IN TRADE. IT CLEARLY PROVES THAT THE INTENTION OF THE ASSESSEE IS TO PU RCHASE SHARE AS INVESTMENT. MOREOVER BUSINESS IS AN ORGANISED ACTIVITY AND NO SUCH ACTIVITY WAS C ARRIED OUT BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. FURTHER AS REFLECTED FROM THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE OF CURRENT AND EARLIER YEARS, SHE IS ONLY HAVING INCOM E/EXPENDITURE RELATED TO SALARY AND INCOME FROM OTHER SOURCES. HENCE CONSIDERING ABOVE FACTS, IT IS HELD THAT THE LOSS ON SALE OF SHARES HAS TO BE ASSESSED UNDER THE HEAD CAPITAL GAINS. THE DECISIONS CITED BY THE ASSESSEE IS NOT RELEVANT AS THE FACTS ARE NOT COMPARABLE. ACCORDING LY THE GROUND TAKEN BY THE APPELLANT IS DISMISSED. AGGRIEVED BY THE SAID ORDER, NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE HAS SUBMITTED THAT IT IS A TRUE FACT THAT THE ASSESSEE IS INVOLVED IN THE BU SINESS OF DEALING IN SHARES AND MAINTAINS A SEPARATE INVESTMENT PORTFOLIO IN SHARES. THE RECORD S OF SHARES MAINTAINED BY THE APPELLANT IN THE SEPARATE INVESTMENT PORTFOLIO ARE LONG TERM INVESTM ENTS BY NATURE AND FREQUENT TRANSACTIONS APPERTAINING TO THE SAID SHARES ARE NOT MADE BY THE ASSESSEE IN ANY WAYS. THIS TENDS TO BE EVIDENT FROM THE FACT THAT THERE HAD NOT BEEN ANY T RANSACTION PERTAINING TO THE SHARES MAINTAINED BY THE ASSESSEE IN THE SEPARATE INVESTMENT PORTFOLI O DURING THE YEAR UNDER CONSIDERATION. HE FURTHER SUBMITTED THAT AT TIMES THE ASSESSEE INDULG ES IN OCCASIONAL TRADING IN SHARES FOR THE PURPOSE OF ADVENTURE AND MAKING SOME QUICK GAINS. A ND GENERALLY IN CASE OF SUCH TRADING IN SHARES, THE ASSESSEE PREFERS PRIVATE NEGOTIATIONS R ATHER THAN GOING THROUGH RECOGNIZED STOCK EXCHANGES. HE ALSO SUBMITTED IN THE LIGHT OF THE A BOVE THAT SIMILAR WAS THE INTENTION OF THE ASSESSEE, WHEN IT CAME TO TRADING IN 4500 EQUITY SH ARES OF SASRANG VINIYOUG LTD FOR THE YEAR UNDER CONSIDERATION. HE ALSO CONTENDED THAT THE ASS ESSEE SOLELY FOR THE PURPOSE OF ADVENTURE AND MAKING SOME QUICK GAINS HAD PURCHASED 4500 EQUI TY SHARES OF SASRANG VINIYOUG LTD AT RS.250/- PER SHARE AND AT A TOTAL COST OF RS. 11,25 ,000/-. THE ASSESSEE WAS UNDER THIS IMPRESSION THAT AS SOON AS THE PRICE OF THE PURCHASED SHARES W OULD INCREASE, SHE WOULD SELL OF THE SHARES. HOWEVER DUE TO ADVERSE MARKET CONDITIONS THE PRICE OF THE SHARES PLUMMETED DEEPLY AND THE ASSESSEE HAD TO SELL OFF THE SHARES @ RS.43.25/- (P ER SHARE) THEREBY INCURRING A HEAVY BUSINESS LOSS OF RS. 9,30,375/-. HE ALSO CONTENDED THAT AO AND LD. CIT (A) ON PERUSAL OF THE LOSS INCURRED BY THE ASSESSEE AMOUNTING TO RS9,30,375/- HAD OPINED THE SAME TO BE SHORT TERM CAPITAL LOSS CONTRARY TO THE CLAIM OF THE ASSESSEE MERELY ON THE GROUNDS ENUNCIATED AS FOLLOWS: ITA NO.405/K/2010 A.Y 06-07 3 THAT A SINGLE TRANSACTION OF PURCHASE AND SALE I N SHARES CANNOT BE AN ADVENTURE IN THE NATURE OF TRADE. THAT BUSINESS IS AN ORGANIZED ACTIVITY AND NO SU CH ACTIVITY WAS CARRIED ON BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. THAT NO SHARES HAVE BEEN SHOWN AS STOCK-IN-TRADE BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. HE FURTHER CONTENDED THAT THAT THE ASSESSING OFFICE R & THE LD. CIT(A) HAD ERRED IN OPINING THAT A SINGLE TRANSACTION OF PURCHASE AND SALE IN SHARE S CANNOT BE AN ADVENTURE IN THE NATURE OF TRADE, AS IT IS AN ESTABLISHED FACT NOW BY THE VIR TUE OF CERTAIN JUDICIAL PRONOUNCEMENTS THAT A SINGLE TRANSACTION OR A SINGLE PURCHASE AND SALE CA N ALSO CONSTITUTE AN ADVENTURE IN THE NATURE OF TRADE AND NO REPETITIVE NOR CONTINUITY OF SIMILAR T RANSACTION IS NECESSARY TO CHARACTERIZE SUCH ACTIVITY AS A TRADE OR BUSINESS. TO SUBSTANTIATE H IS SUBMISSIONS HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) PRABUDAYAL 82 ITR 804, II) CIT VS. S. P. BALASUBRAMANIAM (2001) 250 ITR 01 27 (MAD), III) CIT VS. BHIKAMCHAND JANKILAL (1981) 131 ITR 05 54, IV) G. VENKATASWAMI NAIDU & CO. VS. CIT (1958) TMI 49633 (SC) HE ALSO CONTENDED THAT AN INFERENCE FROM THE ABOVE JUDICIAL AUTHORITIES IN THE FACTS OF THE CONCERNED CASE IMPLIES THAT THE QUESTION RAISED BY THE AO & THE CIT(A), THAT WHETHER A SINGLE TRANSACTION OF PURCHASE AND SALE IN SHARES CAN BE A N ADVENTURE IN THE NATURE OF TRADE, STANDS TOTALLY ERRONEOUS, AS ALTHOUGH THE ASSESSEE HAD NOT PRACTICED REPETITIVE TRANSACTIONS IN PURSUANCE TO 4500 EQUITY SHARES OF SASRANG VINIYOUG LTD, A SINGLE TRANSACTION I.E. PURCHASE AND SALE OF THE ABOVE STIPULATED SHARES CAN ALSO BE CHA RACTERIZED AS TRADE OR BUSINESS. ON THE BASIS OF THE ABOVE SUBMISSIONS AND JUDICIAL AUTHORITIES H E CONTENDED THAT IT STANDS CLEAR THAT THE A.O. & CIT(A) HAD ERRED IN CONSIDERING THE SAID TRANSACT ION TO BE IN INVESTMENT ACCOUNT. HE FURTHER STATED THAT IT CAN BE SEEN FROM THE APPELLATE ORDE R PASSED BY THE LD. CIT (A) THAT HE HAD OPINED THE SAID TRANSACTIONS TO BE ON INVESTMENT ACCOUNT A S ACCORDING TO HIM BUSINESS IS AN ORGANIZED ACTIVITY AND NO SUCH ACTIVITY WAS CARRIED ON BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. HE ALSO DREW OUR ATTENTION TO THE DEFINITION OF THE TERM BUSINESS AS DEFINED IN SECTION 2(13) OF THE INCOME TAX ACT, 1961. HE ALSO CONTENDED THAT SECTION 2(13) OF THE INCOME TAX ACTS 1961 READS AS FOLLOWS: BUSINESS INCLUDES ANY TRADE, COMMERCE OR MANUFACT URE OR ANY ADVENTURE OR CONCERN IN THE NATURE OF TRADE, COMMERCE OR MANUFACTURE. A PERUSAL OF THE ABOVE STIPULATED DEFINITION CLEARL Y REFLECTS THAT ANY TRANSACTION OR CONTINUOUS TRANSACTIONS CARRIED ON BY AN ASSESSEE AS AN ADVENT URE WITH THE INTENTIONS OF EARNING PROFITS ALSO STANDS COVERED UNDER THE AMBIT OF TERM BUSINESS. HE STATED FURTHER THE FACT THAT STANDS CLEAR FORM THE ABOVE DEFINITION IS THIS THAT, ANY INCOME EARNED BY AN ASSESSEE BY CARRYING ON AN ITA NO.405/K/2010 A.Y 06-07 4 TRANSACTION OR CONTINUOUS TRANSACTIONS MERELY AS AN ADVENTURE BUT WITH THE INTENTIONS OF EARNING PROFITS STANDS ASSESSABLE UNDER THE HEAD INCOME FR OM BUSINESS. NOW, ACCORDING TO HIM, IN THE LIGHT OF THE ABOVE DEFINITION OF THE TERM BUSI NESS AS ENSHRINED IN SECTION 2(13) OF THE INCOME TAX ACT, 1961 IF THE FACTS OF THE CONCERNED CASE ARE PERUSED IT CAN BE SEEN, THAT THE TRANSACTION NAMELY PURCHASE AND SALE OF 4500 EQUITY SHARES OF SASRANG VINIYOUG LTD CARRIED ON BY THE ASSESSEE FOR THE PURPOSE OF ADVENTURE AND MA KING SOME QUICK GAINS ALSO STANDS ELIGIBLE TO BE COVERED UNDER THE TERM BUSINESS AND INCOME OUT OF IT ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS. TO SUBSTANTIATE HIS ARGUME NTS, HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) CIT VS,. CALCUTTA NATIONAL BANK LTD. (1959) 37 I TR 171 (SC) II) NARAIN SWADESHI WEAVING MILLS VS. COMMT. OF EXC ESS PROFITS TAX 26 ITR 765, III) VENKATASWAMI NAIDU & CO. (G) VS. CIT 35 ITR 59 4 (SC), IV) SREE MEENAKSHI MILLS VS. CIT (1957) 31 ITR 28. HENCE, HE SUBMITTED THAT ON THE BASIS OF THE ABOVE SUBMISSIONS AND JUDICIAL PRONOUNCEMENTS IT CAN BE SAID THAT PURCHASE AND SALE OF 4500 EQUITY S HARES OF SASRANG VINIYOUG LTD. CARRIED ON BY THE ASSESSEE STANDS ELIGIBLE TO BE TERMED AS A BUSI NESS/TRADE AS : THE ACTIVITY BEING AN ADVENTURE WAS INDICATE OF TH E FACT THAT IT WAS CARRIED ON FOR THE PURPOSE OF TRADE. THAT THE ACTIVITY CARRIED ON WAS CLEARLY INDICATE OF THE FACT THAT IT WAS CARRIED ON WITH THE INTENTIONS OF EARNING PROFIT. HE ALSO CONTENDED THAT THE MOST IMPORTANT FACTOR TH AT NEEDS TO BE NOTED HERE IS THAT THE ASSESEE ALTHOUGH HAS REFLECTED THE TRANSACTION PERTAINING T O PURCHASE AND SALE OF 4500SHARES OF SASRANG VINIYOUG LTD. IN HER P&L ACCOUNT AS ON 31.03.2006, SHE HAS NOT MINGLED IT UP OR REFLECTED THE SAME UNDER THE HEAD SHARE INVESTMENT IN HER BALAN CE SHEET AS ON 31.3.2006. HE SUBMITTED THAT SAID CONTENTION OF THE ASSESSEE IS CLEARLY IND ICATIVE OF THE FACT THAT PURCHASE AND SALE IN 4500 EQUITY SHARES OR SASRANG VINIYOUG LTD. WAS DON E BY THE ASSESSEE WITH THE INTENTIONS OF TRADING AND NOT MAKING INVESTMENTS. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT IT IS NOT UNNATURAL FOR AN ASSESSEE TO MAINTAIN TWO PORTFOLIOS VIZ., TRADING I N SHARES AND INVESTMENT IN SHARES. IN THIS REGARD HE DREW OUR ATTENTION TO RELEVANT PORTIONS O F CBDT CIRCULAR NO. 004 DATED JUNE 15, 2007 WHEREIN IT HAS BEEN SPECIFICALLY LAID DOWN THAT WH ERE AN ASSESSEE HAS TWO PORTFOLIOS, THE ASSESSEE MAY HAVE INCOME UNDER BOTH HEADS I.E. CAPI TAL GAINS AS WELL AS BUSINESS INCOME. HE ALSO CONTENDED THAT IT IS CLEAR FROM THE BALANCE SH EET OF THE ASSESSEE THAT SHE HELD CAPITAL ASSETS NAMELY LONG TERM CAPITAL INVESTMENTS FOR THE YEAR U NDER CONSIDERATION AND SHOWED THE SAME UNDER THE HEAD INVESTMENTS IN SHARES. SIMILARLY TRADING IN SHARES PERTAINING TO 4500 EQUITY SHARES OF SASRANG VINIYOUG LTD. HAD BEEN DULY REFLE CTED IN THE P &L ACCOUNT AS ON 31.3.2006. ITA NO.405/K/2010 A.Y 06-07 5 HENCE, IN THIS REGARD THE LD. COUNSEL SUBMITTED THA T WHEN IT IS CLEAR THAT THE ASSESEE MAINTAIN TWO PORTFOLIOS VIZ., TRADING IN SHARES AND INVESTME NT IN SHARES, MERELY DISPUTING THE FACT THAT INCOME ARISING OUT TRADING IN 4500 SHARES OF SASRAN G VINIYOUG LTD. STANDS TO BE ASSESSED UNDER THE HEAD CAPITAL GAINS STANDS TOTALLY ERRONEOUS. HE FURTHER PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) CIT VS,. S. RAMAAMRITHAM 306 ITR 239, II) ITO VS. DAGA CAPITAL MANAGEMENT PVT. LTD. 312 I TR (AT) 1. HENCE, ACCORDING TO LD. A/R, IT STANDS CLEAR FROM THE ABOVE SUBMISSIONS & JUDICIAL AUTHORITIES THAT THE ASSESSEE HAVING TWO PORTFOLIOS NAMELY INVE STMENTS IN SHARES & TRADING IN SHARES WAS ENTITLED TO HAVE INCOME UNDER BOTH HEADS I.E. CAPIT AL GAINS AS WELL AS BUSINESS INCOME. HE ALSO CONTENDED THAT IT CAN BE SEEN THAT THE LD. CIT (A) HAD TREATED THE SAID TRANSACTION ON ACCOUNT OF INVESTMENTS BY OPINING THAT, NO SHARES HAVE BEEN SH OWN AS STOCK-IN-TRADE BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. IN THIS REGARD HE SUB MITTED THAT THE LD. CIT (A) HAD FAILED TO APPLY HIS MIND PREJUDICIALLY IN THE FACTS OF THE CO NCERNED CASE, AS THE ASSESSEE HAD PURCHASED 4500 SHARES OF SARANG VINIYOG LTD ON 19.08.2005 AND SOLD THE SAME ON 31.03 .2006. HE ALSO CONTENDED THAT THE ASSESSEE IN PURSUANCE TO THE ABO VE STIPULATED DETAILS HAD SUBMITTED BEFORE ASSESSING OFFICER & LD. CIT (A) THE FOLLOWING DOCU MENTS: COPIES OF BILLS OF PURCHASE OF 4500 SHARES OF SA RANG VINIYOG LTD COPIES OF BILLS OF SALES OF 4500 SHARES OF SARAN G VINIYOG LTD COPIES OF STATEMENTS ISSUED BY THE DEPOSITORY NA MELY M/S INDUSLAND BANK LTD REGARDING MAINTENANCE OF THE SHARES IN DEMAT FORM. DISPOSAL CERHFLCATES OF 4500 EQUITY DEMAT SHARES OF SARANG VINIYOG LTD IN FAVOUR OF M/S VAYUDOOT COMMERCIAL (F) LTD ACCORDING TO LD. A/R FROM THE ABOVE STIPULATED DOCU MENTS IT STANDS CLEAR THAT 4500 EQUITY SHARES OF SARANG VINIYOG LTD WERE PURCHASED AND SOL D OFF IN THE YEAR UNDER CONSIDERATION ITSELF. HENCE, HOLDING THE SAID SHARES AS STOCK-IN- TRADE IN THE YEAR UNDER CONSIDERATION DOESNT COME UP ONLY IN THE FACTS AND CIRCUMSTANCES OF THE CONCERNED CASE. HENCE, HE SUBMITTED THAT IT STANDS CLEAR FROM THE ABOVE SUBMISSIONS THAT THE SI NGLE TRANSACTION CARRIED ON BY THE ASSESSEE, PERTAINING TO 4500 SHARES OF SARANG VINIYOG LTD IS IN THE NATURE OF TRADE AND HENCE STANDS ELIGIBLE TO BE ASSESSED UNDER THE HEAD INCOME FROM BUSINESS . 5. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE LOWER AUTHORITIES. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE CASE LAW CITED BY THE LD. COUNSEL FOR THE ASSESSEE. WE ARE OF THE VIEW THAT THERE IS NO BAR ON ITA NO.405/K/2010 A.Y 06-07 6 THE PART OF THE ASSESSEE TO MAINTAIN TWO PORTFOLIOS VIZ., INVESTMENT IN SHARES AND TRADING IN SHARES. SINCE IN THIS CASE THERE IS NO DISPUTE THAT THE ASSESSEE HAS MADE TRANSACTIONS OF SALE AND PURCHASE OF SHARES DURING THE PREVIOUS YEAR RELEVAN T TO ASSESSMENT YEAR UNDER APPEAL, THE REVENUE IS NOT JUSTIFIED TO TREAT THE PURCHASE OF T HE SHARES AS INVESTMENT AS AGAINST THE CONTENTION OF THE ASSESSEE THAT HE HAS PURCHASED T HE SHARES WITH AN INTENTION TO SELL THE SAME DURING THE FINANCIAL YEAR AND HE DISPOSED OFF THE S AME ON 30 TH MARCH, 2006 AND INCIDENTALLY INCURRED LOSS. UNDER THESE CIRCUMSTANCES, THERE IS NO REASON FOR THE REVENUE TO TREAT THE SAID SHARES AS INVESTMENT AND TREATED THE LOSS AS SHORT TERM CAPITAL LOSS INSTEAD OF BUSINESS LOSS AS CLAIMED BY THE ASSESSEE. THEREFORE, WE SET ASIDE T HE ORDERS OF THE LOWER AUTHORITIES AND DIRECT THE ASSESSING OFFICER TO TREAT THE SAID LOSS AS BUS INESS LOSS. APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- , , , , .!'., ,, , #$ (MAHAVIR SINGH) (C. D. RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( ('$ '$ '$ '$) )) ) DATED : 18TH APRIL, 2011 12 &34 5 JD.(SR.P.S.) #/ 6 - 7#(8- COPY OF THE ORDER FORWARDED TO: 1 . +, /APPELLANT - SMT. VANITA CHAMARIA, 2B, HASTINGS P ARK ROAD, ALIPORE, KOLKATA-700 027. 2 -.+, / RESPONDENT ACIT, CENTRAL CIRCLE-VI, KOLKATA 3 . /& / THE CIT, KOLKATA 4 . /& ( )/ THE CIT(A), KOLKATA. 5 . ?@ -& / DR, KOLKATA BENCHES, KOLKATA . -/ TRUE COPY, #/&A/ BY ORDER, 4 /ASSTT. REGISTRAR .