DCIT, New Delhi V. M/s. Rajasthan Global Securities Ltd., New Delhi

ITA 4085/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6486 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 10-03-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 21-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND S HRI LALIET KUMAR , JUDICIAL MEMBER ITA NO. 4085 /DEL /20 1 4 [ ASSESSMENT YEAR : 20 11 - 12 ] THE DY. C. I.T . VS. M/S RAJAST HAN GLOBAL SECURITIES LTD WARD 21(1) 301 - 303, CA CHAMBERS, 18/12, WEA NEW DELHI KAROL BAGH, NEW DELHI P AN : AA ACR 4122 R [APPELLANT] [ RESPONDENT] DEPARTMENT BY : SHRI KARTAR SINGH, CIT - DR ASSESSEE BY : SHRI KAPIL GOEL, ADV DATE OF HEARING : 1 0 . 0 3 .201 6 DATE OF PRONOUNCEMENT : 11 . 0 3 .2016 ORDER PER LALIET KUMAR, JM : - THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) - XV III, NEW DELHI DATED 15 .0 5 .201 4 PERTAINING TO A.Y 20 11 - 12 . 2. THE GROUND S RAISED IN THIS APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE AO HOLDING THE SALE OF SHARES AS STCG INSTEAD OF BUSINESS INCOME BY NOT APPRECIATING THE FACT THAT THE SHARES ON WHICH 2 GAIN IS OFFERED TO T AX UNDER THE HEAD STCG DO NOT APPEAR IN THE LIST OF INVESTMENTS IN THE BALANCE SHEET. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN DELETING THE ABOVE ADDITION MADE BY THE AO IGNORING THE FACT THAT IN RESPECT OF THESE SHARES THERE IS NEITHER ANY OPENING BALANCE NOR CLOSING BALANCE AS ON 31.03.2011, AS THE ENTIRE SALE/PURCHASE WAS CARRIED OUT WITHIN FEW MONTHS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ABOVE ADDITION BY NOT APPRECIATING THE FACT THAT WHILE CALCULATING STCG ON SOME SELECTED SHARES, THE ASSESSEE HAS DEBITED THAT STT AGAINST VALUE OF SALE CONSIDERATION BEFORE ARRIVING AT THE GAINS. THIS TREATMENT, ONCE AGAIN RE - INFORCES THE CONCLUSION THAT TRADIN G IN THESE SHARES WERE AN INTRINSIC/INCIDENTAL PART OF BUSINESS OF THE ASSESSEE AND CLAIMING THE SAME AS STCG IS SIMPLY AN AFTERTHOUGHT AND A PLOY TO BRING DOWN THE TAX LIABILITY. 3 . AT THE TIME OF HEARING, AT THE VERY OUTSET, IT WAS CONVEYED TO US THAT THE ISSUE RAISED IN THIS APPEAL REGARDING CHARACTERISATION OF INCOME ARISING FROM SALE OF SECURITIES WHETHER UNDER BUSINESS HEAD OR CAPITAL GAINS HEAD STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL ORDER DATED 1 1 .0 3 .2015 PASSED IN ASSESSEE S OWN CASE FOR ASSESSMENT YEAR 20 10 - 11 IN ITA NO. 106 /DEL/201 4 , WHEREIN THE TRIBUNAL 3 UPHELD THE LD. CIT(A) S FINDING IN DELETING THE ADDITION MADE BY THE AO BY HOLDING THE SALE OF SHARES AS STCG INSTEAD OF BUSINESS INCOME BY NOT APPRECIATING THE FACT THAT TH E SHARES ON WHICH GAIN IS OFFERED TO TAX UNDER HT HEAD STCG DO NOT APPEAL IN THE LIST OF INVESTMENTS IN THE BALANCE SHEET BY RELYING ON ITS OWN DECISION PASSED IN ASSESSEE S OWN CASE FOR A.Y 20 10 - 11 , WHOSE COPIES ARE ENCLOSED. THE LD. COUNSEL FOR THE DEPARTMENT FAIRLY ADMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. BUT HE RELIED ON THE FINDINGS OF THE A.O. GIVEN IN THIS REGARD. 4. WE HAVE HEARD THE LD. COUNSEL FOR THE DEPARTMENT AND H AVE ALSO GONE THROUGH THE TRIBUNAL ORDER IN ASSESSEE S OWN CASE [SUPRA] AND HAVE ALSO CAREFULLY TREADED THROUGH THE APPELLATE ORDER AS WELL AS THE HON'BLE HIGH COURT ORDER RELIED UPON BY THE ASSESSEE . WE HAVE CLEARLY NOTICED THAT THE ISSUE RAISED IN THIS A PPEAL STANDS FULLY COVERED BY THE ORDER OF THE TRIBUNAL DATED 1 1 . 0 3 .201 5 WHEREIN THE TRIBUNAL HAS ALLOWED RELIEF TO THE ASSESSEE . THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI DATED 0 3 .0 3 .2015 IN THE CASE OF CIT VS. AMIT JAIN, IN ITA NO. 517/ 2012, WHOSE COPY IS ALSO ENCLOSED. THEREFORE, IT IS VIVIDLY CLEAR FROM THE ABOVE THAT THE ISSUE 4 STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON'BLE HIGH COURT OF DELHI AND ITAT . HENCE THERE IS NO MERIT IN THIS GROUND TAKEN BY THE REVEN UE. ACCORDINGLY, RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, WE CONFIRM THE IMPUGNED FINDING OF THE LD. CIT(A) IN THIS REGARD AND DISMISS THE GROUND RAISED IN THIS APPEAL RAISED BY THE REVENUE . 5 . IN THE RESULT, THE APPEAL OF THE REVENUE STAND S DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 1 . 0 3 .201 6 . S D / - S D / - ( J.S.REDDY ) ( LALIET KUMAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 1 T H MARCH, 201 6 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI