ACIT, AMRAVAIT CIRCLE, Nagpur V. PLASTI SURGE INDUSTRIES PVT. LTD, Amaravati

ITA 415/NAG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93424 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 26-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C W AWGULKAR
• Keywords: Business income; Question of law; Speculation loss
• Section: 2

Judgement Text

1 ITA NO S . 415&416/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NOS. 415 & 416/NAG/2013 ASSESSMENT YEARS : 2009 - 10 & 2010 - 11 . ASSTT. COMMISSIONER OF INCOME - TAX, PLASTI SURGE INDUSTRIES PVT. LTD., AMRAVATI CIRCLE, AMRAVATI. V/S. SIDDHARTHA BHAVAN, MORSHI ROAD, AMRAVATI. PAN AAACP9678A. (APPELLANT) RESPONDENT. APPELLANT BY : SHRI C.W. AWGULKAR. RESPONDENT BY : SHRI K.P. DEWANI. DATE OF HEARI NG : 26 - 05 - 2015 DATE OF PRONOUNCEMENT : 30 TH JUNE, 2015. O R D E R PER SHRI SHAMIN YAHYA, A.M . THESE APPEAL BY THE REVENUE ARE DIRECTED AGAINST THE ORDERS OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 17 - 09 - 2013 FOR THE RESPECTIVE ASSESSMENT YEARS IN THE CASE OF THE SAME ASSESSEE. SINCE THE ISSUES ARE COMMON AND APPEALS WERE HEARD TOGETHER, THESE ARE DISPOS ED OF FOR THE SAKE OF CONVENIENCE. THE GROUNDS READ ARE AS UNDER : 2 ITA NO S . 415&416/NAG/2013 ASS ESSMENT . YEAR : 2009 - 10 . 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS ERRED IN LAW IN TREATING THE LOSS ON SALES OF SHARES OF ` .48,92,577/ - AS CAPITAL LOSS AND NOT SPECULATION LOSS IN NOT APPRECIATING THE VOLUME FREQUENCY OF TRANSACTION AND THE PERIOD OF HOLDING OF SHARES TRADING WHICH CLEARLY INDICATE THE INTENTION OF THE ASSESSEE FOR QUICK GAIN. 2. WHETHER ON THE FACTS AND CI RCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS ERRED IN LAW IN TREATING THE LOSS ON SALES OF SHARES OF ` . 48,92,577/ - AS CAPITAL LOSS AND NOT BUSINESS LOSS IN NOT APPRECIATING THAT THE ASSESSEE COMPANY HAS TAKEN THE SURPLUS FROM SALES O F SHARES AS BUSINESS INCOME IN A.Y. 2004 - 05. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS FAILED TO APPRECIATE DEEMING PROVISION OF EXPLANATION TO SECTION 73 THAT IN CASE ANY PART OF THE BUSINESS OF A CO MPANY, CONSISTS IN PURCHASE & SALE OF SHARES OF OTHER COMPANIES, SUCH COMPANY SHALL BE DEEMED TO BE CARRYING ON A SPECULATION BUSINESS. ASSESSMENT YEAR : 2010 - 11. 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEAL S) - II, NAGPUR HAS ERRED IN LAW IN TREATING THE SURPLUS ON SALE OF SHARES OF ` .77,93,048/ - AS CAPITAL GAIN AND NOT BUSINESS INCOME IN NOT APPRECIATING THE VOLUME FREQUENCY OF TRANSACTION AND THE PERIOD OF HOLDING OF SHARES TRADING WHICH CLEARLY INDICATES THE INTENTION OF THE ASSESSEE FOR QUICK GAIN. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) - II, NAGPUR HAS ERRED IN LAW IN TREATING THE SURPLUS ON SALES OF SHARES OF ` .77,93,048 AS CAP ITAL GAIN AND NOT BUSINESS INCOME IN NOT APPRECIATING THAT THE ASSESSEE COMPANY HAS TAKEN THE SURPLUS FROM SALES OF SHARES AS BUSINESS INCOME IN A.Y. 2004 - 04. 2. AT THE OUTSET,, IN THIS CASE THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT LEARNED CIT( APPEALS) HAS DECIDED THE ISSUE IN THIS CASE IN FAVOUR OF THE ASSESSEE BY PLACING RELIANCE UPON THE TRIBUNALS DECISION DATED 19 - 10 - 2012 IN THE CASE OF THE 3 ITA NO S . 415&416/NAG/2013 SAME ASSESSEE FOR ASSESSMENT YEAR 2006 - 07. LEARNED COUNSEL SUBMITTED THAT THE LEARNED CIT(APPEALS) HA S CLEARLY GIVEN A FINDING THAT THE FACTS ARE IDENTICAL. LEARNED COUNSEL FURTHER SUBMITTED THAT THE SAID DECISION OF THE TRIBUNAL WAS THE SUBJECT MATTER OF APPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT IN INCOME TAX APPEAL NO. 16 OF 2013 AND THE HONB LE HIGH COURT VIDE ORDER DATED 17 - 02 - 2014 HAS HELD THAT NO SUBSTANTIAL QUESTION OF LAW ARISES FOR RECONSIDERATION IN THIS APPEAL, THE APPEAL IS, THEREFORE, DISMISSED. LEARNED D.R., ON THE OTHER HAND, COULD NOT CONTROVERT THE SUBMISSIONS OF THE LEARNED COU NSEL OF THE ASSESSEE THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. HOWEVER, HE SUBMITTED THAT GROUNDS OF APPEAL NO. 3 IN I ITA NO. 415/NAG/2013 HAS NOT BEEN ADJUDICATED BY THE AUTHORITIES IN THIS CASE. 3. UPON CAREFUL CONSIDERATION WE NOTE THAT IDENT ICAL ISSUES WERE CONSIDERED BY THE TRIBUNAL EARLIER IN ASSESSEES OWN CASE AND THE TRIBUNAL HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. SIMILARLY QUESTIONS INCLUDING THE ONE IDENTICAL TO GROUND NO.3 IN ITA NO. 415/NAG/2013 AS ABOVE WERE ADMITTED BY THE HONBLE JURISDICTIONAL HIGH COURT IN ITA NO. 16 OF 2013 ADJUDICATED BY THE HONBLE JURISDICTIONAL HIGH COURT. IN THIS VIEW OF THE MATTER, IN OUR CONSIDERED OPINION, THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL AND HONBLE JURISDICTIONAL HIGH COURT. ACCORDINGLY, WE AFFIRM THE ORDERS OF THE LEARNED CIT(APPEALS). 4. IN THE RESULT, THESE APPEALS FILED BY THE REVENUE STAND DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF JUNE, 2015. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 30 TH JUNE, 2015. 4 ITA NO S . 415&416/NAG/2013 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE