ACIT 13(2), MUMBAI V. KUNVERJI NANJI KENIA, MUMBAI

ITA 4224/MUM/2010

• Counselvise Citation: 422419914 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 25-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: USHA NAIR
• Assessee Lawyers: PRADEEP KAPASI
• Keywords: Business income; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.K.PANDA, ACCOUNTANT MEMBER ITA. NO.4224/MUM/2010 ASSESSMENT YEAR 2007-2008 ACIT, CIRCLE 13 (2) MUMBAI 400 020 VS. SHRI KUNVERJI NANJI KENIA MUMBAI 400 009 PAN AACPK4334P (APPELLANT) (RESPONDENT) FOR APPELLANT : SMT. USHA NAIR FOR RESPONDENT : SHRI PRADEEP KAPASI ORDER PER D. MANMOHAN, V.P. 1. THIS APPEAL IS FILED AT THE INSTANCE OF THE REV ENUE AND IT PERTAINS TO THE ASSESSMENT YEAR 2007-2008. THE ONLY GROUND URGED BY THE REVENUE READS AS UNDER : THE LEARNED CIT(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, ERRED IN DIRECTING TO TREAT THE SHORT TERM CAPITAL GAIN OF RS.2,50,23,453/- AND LTCG OF RS.12,39,56,397/- AS STCG AND LTCG RESPECTIVELY AND NOT AS BUSINESS INCOME WITHOUT APPRECIATING THE FACT THAT THE VOLUM E, QUANTUM AND ORGANISED ACTIVITY IN SHARE TRADING IS A BUSINESS ACTIVITY. 2. LEARNED COUNSEL, APPEARING ON BEHALF OF THE ASS ESSEE, SUBMITTED THAT THE ISSUE STANDS SQUARELY COVERED BY THE DECISION OF THE ITAT, A BENCH, MUMBAI IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-2006 (ITA. NO. 6545/MUM/2008 D ATED 28 TH APRIL, 2009). HE HAS ALSO ADVERTED OUR ATTENTION TO THE CHART SHOWING COMPARISON OF VARIOUS VOLUMES (FOR THE ASSESSMENT Y EARS 2005-2006 TO 2007-2008) TO SUBMIT THAT AS COMPARED TO THE ASS ESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING YEAR, THE TURNOVER RA TIO ETC., ARE MORE FAVOURABLE IN THE YEAR UNDER CONSIDERATION, TO HOLD THAT IT WAS NOT THE 2 CASE OF EARNING BUSINESS INCOME BUT IT WAS A CASE O F SALE OF INVESTMENTS. LEARNED COUNSEL, THUS, STRONGLY SUPPOR TED THE ORDER PASSED BY THE LEARNED CIT(A). IN FACT, LEARNED CIT( A) FOLLOWED THE DECISION OF THE ITAT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-2006 TO HOLD THAT THE PROFITS DERIVED FROM SAL E OF SHARES IS ASSESSABLE TO TAX UNDER THE HEAD CAPITAL GAINS. 3. LEARNED D.R. COULD NOT CONTROVERT THE FINDINGS OF THE LEARNED CIT(A) AND FAIRLY ADMITTED THAT THE ISSUE S TANDS SQUARELY COVERED BY THE DECISION OF THE ITAT (SUPRA). 4. UNDER THE CIRCUMSTANCES, CONSISTENT WITH THE VI EW TAKEN BY THE ITAT IN EARLIER YEAR, WE UPHOLD THE ORDER OF THE LEARNED CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT, ON THIS THE 2 8 TH DAY OF JULY, 2010. SD/- SD/- (R.K.PANDA) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 28 TH JUNE, 2011 VBP/- COPY TO 1. ACIT, CIRCLE 13 (2), 477, AAYAKAR BHAVAN, M.K. R OAD, MUMBAI 400 020 2. SHRI KUNVERJI NANJI KENIA, C/O. SHANTILAL KUNVER JI & CO. SARASWATI SADAN, GR.FLOOR, 113/115, KESHAVJI NAIK ROAD, M UMBAI 400 009 PAN AACPK4334P 3. CIT(A)-24, MUMBAI 4. CIT-13, MUMBAI. 5. DR A BENCH 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.