ADDL CIT RG 4(3), MUMBAI V. KISAN RATILAL CHOKSEY SHARES & SECURIRITES P. LTD, MUMBAI

ITA 4371/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92718 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 23-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 30-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN V P
• Keywords: Business income; Depreciation; Bad and doubtful debts; Revenue expenditure; Capital expenditure
• Section: 14A; 37(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) . . , , ./ I.T. A. NO. 3325 / MUM/20 1 1 ( / ASSESSMENT YEAR : 20 0 7 - 08 ) KISAN RATILAL CHOKSEY SHARES & SECURITIES PVT.LTD., 1102, STOCK EXCHANGE TOWERS, DALAL STREET, FORT, MUMBAI - 400001 / VS. ADD.COMMISSIONER OF INCOME TA X , RANGE 4(3), MUMBAI. ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 4371 /MUM/20 11 ( / ASSESSMENT YEAR : 2007 - 08 ) DY.COMMISSIONER OF INCOME TAX, RANGE 4(3), 6 TH FLOOR, NO.649, AAYAKAR BHAVAN, MUMBAI - 400020 / VS. M/S KISAN RATILAL CHOKSEY SHARES & SECURITIES PVT.LTD., 1102, STOCK EXCHANGE BUILDING, DALAL STREET, FORT, MUMBAI - 400001 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAACK4716G / ASSESSEE BY SHRI NISHIT GANDHI / REVENUE BY SHRI ASGHAR ZAIN V P / DATE OF HEARING : 23.04. 201 5 / DATE OF PRONOUNCEMENT : 05 . 6 . 201 5 ITA 3325 / MUM/20 1 1 AND 4371/M/2011 2 / O R D E R PER B.R. BASKARAN (AM) THESE CROSS - APPEALS ARE DIRECTED AGAINST THE ORDER DATED 10.3.2011 PASSED BY THE LD.CIT ( A) - 11, MUMBAI AND THEY RELATE TO THE ASSESSMENT YEAR 2007 - 08 . 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF SHARE BROKING AND OTHER RELATED FINANCIAL SERVICES. THE ASSESSMENT FOR THE YEAR UNDER CONSIDER ATION WAS COMPLETED BY THE AO MAKING VARIOUS DISALLOWANCES . IN THE APPEALS FILED BEFORE THE LD.CIT(A), THE FIRST APPELLATE AUTHORITY ALLOWED THE AP PEAL OF THE ASSESSEE IN PART. AGGRIEVED BY HIS ORDER, BOTH THE PARTIES HAVE FILED TH ESE APPEALS APPEAL BEFORE US. 3. FIRST WE SHALL TAKE UP THE APPEAL FILED BY THE REVENUE . THE FIRST ISSUE RELATES TO DISALLOWANCE OF RS.5,30,107 / - , BEING DEPRECIATION CLA IMED ON MOTOR CAR . THE ASSESSEE HAD PURCHASED VEHICLES IN THE NAME OF ITS DIRECTOR , BUT DISCLOSED THE SAME AS PART OF ITS ASSETS. ACCORDINGLY, IT CLAIMED DEPRECIATION ON THE VEHICLES. HOWEVER, T HE AO DISALLOWED THE DEPRECIATI ON ON THE REASONING THAT THE V EHICLES WERE NOT IN THE NAME OF ASSESSEE COMPANY . THE LD. CIT(A), HOWEVER, ALLOWED THE DEPRECATION BY FOLLOWING THE DECISION DATED 30.9.2010 RENDERED B Y THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO S . 4917/MUM/2009 AND 4821/MUM/2009 RELATING TO ASSESSMENT YEAR 2006 - 07. 3. 1 THE ASSESSEE HAS FURNISHED A COPY OF THE ORDER PASSED BY THE MUMBAI BENCH OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2006 - 07, WHEREIN THE TRIBUNAL HAS FOLLOWED THE DECISION RENDERED ON AN IDENTICAL ISSUE IN ITA 3325 / MUM/20 1 1 AND 4371/M/2011 3 ASSESSEES OWN CASE FOR ASSESSME NT YEAR 2005 - 06 . IN THE ASSESSMENT YEAR 2005 - 06 , THE TRIBUNAL HAD FOLLOWED THE DECISION RENDERED BY THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF USHA RECTIFIER CORPORATION (I) PVT. LTD. V/S INSPECTING ASSISTANT COMMISSIONER [1989] 35 TTJ 602 (ITAT ) [DEL] ) AND ALSO THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S DILIP SINGH SARDARSINGH BAGGA REPORTED IN 201 ITR 995 (BOM), WHEREIN IT HAS BEEN HELD THAT THE REGISTRATION UNDER MOTOR VEHICLE ACT IS NOT AN ESSENTIAL REQUIREMENT FOR ACQ UIRING OWNERSHIP OF THE MOTOR VEHICLE AND THAT AN ASSESSEE PURCHASING A MOTOR VEHICLE FOR VALUABLE CONSIDERATION AND USING THE SAME FO R HIS BUSINESS CANNOT BE DENIED BENEFIT OF DEPRECIATION ON THE GROUND THAT THE VEHICLE WAS NOT RE GISTERED UNDER MOTOR VEHICLE ACT. 3.2 IN THE INSTANT CA S E, THE LD. CIT(A) HAS ONLY FOLLOWED THE DECISION OF THE CO - ORDINATE BENCH OF THIS T RIBUNAL ON THIS ISSUE AN D HENCE , WE DO NOT FIND ANY REASON TO INTERFERE WITH H IS ORDER ON THIS ISSUE . 4. THE NEXT ISSUE CONTESTED BY TH E REVENUE RELATES TO DISALLOWANCE OF BAD DEBTS AMOUNTING TO RS.10,05,297/ - . THE AO DISALLOWED THE BAD DEBT CLAIMED BY THE ASSESSEE ON THE REASONING THAT THE ASSESSEE HAS NOT DECLARED THE SAME A S IT S INCOME IN THE EARLIER YEARS. THE LD.CIT(A), HOWEVER, AL LOWED THE CLAIM O F THE ASSESSEE BY FOLLOWING THE DECISION OF SPECIAL BENCH OF MUMBAI TRIBUNAL IN THE CA S E OF DCIT V/S SHREYAS S. MORAKHIA [2010] 40 SOT 432 (ITAT[MUM]).THE LD.CIT(A) ALSO NOT ICED THAT AN IDENTICAL DISALLOWANCE MADE IN THE ASSESSMENT YEAR 2 006 - 07 H A S BE E N DELETED BY THE MUMBAI BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE. 4.1 AT THE TIME OF HEARING, THE LD.AR POINTED OUT THAT THE DECISION RENDERED BY THE SPECIAL BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF ITA 3325 / MUM/20 1 1 AND 4371/M/2011 4 SHR EYAS S. MORAKHIA (SUPRA) HAS SIN CE BEEN APPROVED BY THE HONBLE BOMBAY HIGH COURT IN ITS DECISION REPORTED IN [2012] 342 ITR 285 (BOM). THE HONBLE HIGH COURT HELD THAT THE VALUE OF THE SHARES TRANSACTED BY THE ASSESSEE AS A STOCK BROKER ON BEHALF OF ITS CLIENT IS VERY MUCH A PART OF THE DEBT AS IS THE BROKERAGE WHICH IS CHARGED BY THE ASSESSEE ON THE TRANSACTION. SINCE THE BROKERAGE AND VALUE OF SHARES BOTH FORM A COMPONENT PART OF THE DEBT, THE REQUIREMENTS OF SECTION 36(2)(I) ARE FULFILLED WHERE A PART THEREOF IS TAKEN INTO ACCOUNT IN COMPUTING THE INCOME OF THE ASSESSEE. FURTHER, IT IS NOT DISPUTED THAT THE ASSESSEE HAS WRITTEN OFF THE DEBTS A S BAD IN ITS BOOKS OF ACCOUNT. UNDER THESE SET OF FACTS, WE NOTICE THAT THE ASSESSEE COMPLIED WITH THE PROVISIONS OF SECTIONS 36 (1) (VII) AS WELL AS 36(2) (I). HENCE, BY FOLLOWING THE DECISION OF JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF SHREYAS S. MORAKHIA (SUPRA), WE UPHOLD THE ORDER OF THE LD.CIT(A) ON THIS ISSUE. 5 THE NEXT ISSUE CONTESTED BY THE REVENUE RELATES TO CLAIM OF COMPUTER AND SOFTWARE D EVELOPMENT EXPENDITURE OF RS.64.61 LAKHS A S REVENUE EXPENDITURE. THE AO TREATED THE ENTIRE AMOUNT OF SOFTWARE EXPENDITURE AS CAPITAL IN NATURE AND ACCORDINGLY DISALLOWED THE CLAIM. THE LD.CIT ( A), UPON EXAMINATION OF DETAILS , NOTICED THAT THE ASSESSEE HAS PURCHASED 6 LAPTOPS FOR AN AMOUNT OF RS.3,41,069/ - AND ONE ANOTHER HARDWARE FOR A SUM OF RS.1,67,440/ - , BOTH AGGREGATING TO RS.5 , 08 , 509/ - AND BOTH THE ITEMS HAD BEEN INCLUDED IN S OFTWARE AND WEB DEVELOPMENT EXPENDITURE. THE LD . CIT(A) DISALLOW ED THE CLAIM OF RS.5 , 08 , 509/ - REFERRED ABOVE. HOWEVER, THE LD.CIT(A) TOOK THE VIEW THAT THE ASSESSEE HAS BEEN CONSISTENTLY CLAIMING THE SOFTWARE WEB DEVELOPMENT EXPENDITURE AT HIGHER LEVEL OVER THE YEARS AND ACCORDINGLY DISALLOWED 20% OF THE EXPENSES , HOLD ING THE SAME A S EXCESSIVE AND UNREASONABLE AND ALLOWED THE REMAINING AMOUNT. ITA 3325 / MUM/20 1 1 AND 4371/M/2011 5 5 . 1 T HE LD. DR SUBMITTED THAT THE SOFTWARE DEVELOPMENT EXPENDITURE SHOULD BE TREATED AS CAPITAL EXPENDITURE AND HENCE THE LD.CIT(A) WAS NOT JUSTIFIED IN ALLOWING PART OF THE SAM E AS REVENUE EXPENDITURE. 5.2 ON THE CONTRARY, THE LD.AR SUBMITTED THAT THE ASSESSEE , BEING A SHARE BROKER , IS REQUIRED TO CONTINU OUSLY UPDATE ITS SOFTWARE AND HENCE THE LD.CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE SAID EXPENDITURE IS EXCESSIVE OR UNREA SONABLE. 5 . 3 WE NOT ICE THAT BOTH THE PARTIES HAVE FAILED TO FURNISH THE BREAKUP DETAILS OF THE SOFTWARE AND WEB DEVELOPMENT EXPENDITURE. THE ISSUE RELATING TO THE SAME HAS SINCE BEEN DECIDED BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF AMWAY IND IA ENTERPRISES V/S DCIT [2008] 111 ITD 112 (ITAT )(SB) [DEL]). SINCE THE BREAK - UP DETAILS OF THE EXPENDITURE ARE NOT AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE AO. ACCORDINGLY , WE SET ASIDE THE ORDE R OF LD. CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF AO WITH A DIRECTION TO EXAMINE THE SAME IN THE LIGHT OF THE DECISION OF ITAT IN THE CASE OF AMWAY INDIA ENTERPRISES (SUPRA) BY DULY CONSIDERING THE BREAK - UP DETAILS , INFORMATION AND EXPLANAT ION THAT MAY BE FURNISHED BY THE AS S E SSEE . 6 . THE NEXT ISSUE RELATES TO DISALLOWANCE OF PENALTY OF RS.2,63,945 / - PAID TO THE STOCK EXCHANGE FOR VIOLATION OF ITS BYE - LAWS. THE LD.CIT(A) NOTICED THAT MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ITO V/S VRM SHARE BROKING (P) LTD REPORTED IN 27 SOT 569 AND GOLDCREST CAPITAL MARKETS LTD. V/S ITO [2010] 2 ITR (TRIB) 355 (ITAT[MUM]) HAVE HELD THAT EXPLANATION TO SEC 37(1) ARE NOT APPLICABLE TO THE PENALTY PAID ON CONTRAVENTION OF BYE - LAWS OF THE STOCK EXCHANG E. ACCORDINGLY, HE ALLOWED THE CLAIM OF THE ASSESSEE. THE LD. AR POINTED OUT THAT THE CO - ITA 3325 / MUM/20 1 1 AND 4371/M/2011 6 ORDINATE BENCH OF THE TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005 - 06 PASSED IN ITA NO.4347/MUM/2009 AND 4033/MUM/2 009 DATED 4.6.2010. WE NOTICE THAT THE CO - ORDINATE BENCH OF THE TRIBUNAL HAS DELETED AN IDENTICAL DISALLOWANCE MADE IN THE ASSESSMENT YE AR 2005 - 06 BY FOLLOWING THE DECISION RENDERED IN THE CA SE OF VRM SHARE BROKING (P) LTD (SUPRA). UNDER THESE SET OF FACT S, WE DO NOT FIND ANY INFIRMITY IN THE DECIS ION OF LD. CIT(A) ON THIS ISSUE . 7 . NOW, WE SHALL TAKE UP THE APPEAL FILED BY THE ASSESSEE . THE FIRST ISSUE CONTESTED BY THE ASSESSEE RELATES TO THE DISALLOWANCE MADE UNDER SECTION 14A OF THE ACT . THE AO DISALLO WED A SUM OF RS.4,65,945/ - UNDER SECTION 14A BY APPLYING THE PROVISIONS OF RU LE 8D . THE LD.CIT(A) , THOUGH AGREED WITH THE CONTENTIONS OF THE ASSESSEE THE THE PROVISIONS OF RULE 8D ARE NOT APPLICABLE TO THE YEAR UNDER CONSIDERATION IN VIEW OF THE DECISIO N OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG CO. LTD (234 CTR 1)(BOM) , YET HE HELD THAT DISALLOWANCE OF RS.4,65,945/ - MADE BY AO IS REASONABLE. THE LD.AR POINTED OUT THAT THE AO HAS MADE AN IDENTICAL DISALLOWANCE IN THE ASSESSMEN T YEAR 2006 - 07 AND THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH . SINCE THE PROVISIONS OF RULE 8D ARE NOT APPLICABLE TO THE YEAR UNDER CONSIDERATION, THE DISALLOWANCE TO BE MADE U/S 14A OF THE ACT SHOULD BE COMPUTED I N A REASONABLE MANNER. WE HAVE EARLIER NOTICED THAT THE AO HAS APPLIED THE PROVISIONS OF RULE 8D FOR COMPUTING THE DISALLOWANCE. HENCE, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION. ACCORDINGLY, WE SET THE ORDER OF LD. CIT(A) ON THIS ISS UE AND RESTORE THE SAME TO THE FILE OF AO WITH A DIRECTION TO COMPUTE THE DISALLOWANCE U/S 14A IN A REASONABLE MANNER AS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG CO. LTD(SUPRA). ITA 3325 / MUM/20 1 1 AND 4371/M/2011 7 8 . THE NEXT ISSUE CONTESTED BY THE AS SESSEE RELATES TO PARTIAL CONFIRMATION OF WEB AND SOFTWARE DEVELOPMENT EXPENSES. WHILE DEALING WITH THE APPEAL FILED BY THE REVENUE , WE HAVE RESTORED BACK THIS ISSUE TO THE FILE OF AO FOR FRESH CONSIDERATION . HENCE, THE ASSESSEE IS DIRECTED TO SUBMIT ITS C ONTENTION S BEFORE THE AO IN THE SET ASIDE PROCEEDINGS. THE AO IS DIRECTED TO TAKE APPROPRIATE DECISION AFTER HEARING THE ASSESSEE. 9 . THE NEXT ISSUE CONTESTED BY THE ASSESSEE RELATES TO DISALLOWANCE OF BOMBAY STOCK EXCHANGE CARD AMORTIZATION EXPENDITURE OF RS.6,42,500/ - . THE ASSESSEE HAD AMORTIZED 1/10 TH BSE CARD AND CLAIMED THE SAME AS DEDUCTION. BEFORE THE AO , THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD VALUED ITS BSE CARD AT RS.65.75 LAKHS AS PER ACCOUNTING STANDARD 26 ISSUED BY THE ICAI. THIS AMOUNT TOGETH ER WITH VALUE OF EQUITY SHARES ALLOTTED TO THE ASSESSEE IN BOMBAY STOCK EXCHANGE LTD AND WAS DISCLOS ED AS I NVESTMENT IN B ALANCE - SHEET AND REMAINING AMOUNT PAID FOR ACQUISITION OF CARD I.E. RS.64,25,000 WAS AMORTIZED BY THE ASSESSEE IN 10 EQUAL INSTA LLMENT BEGINNING FROM THE FINANCIAL YEAR 1997 - 98. THE AO DISALLOWED THE CLAIM OF THE ASSESSEE BY HOLDING THAT DEPRECIATION ON BSE CARD IS NOT ALLOWED BY DEPARTMENT. 9 . 1 THE LD. CIT(A) NOTICED THAT THE ASSES SEE COMPANY WAS ENTITLED TO CLAIM DEPRECIATION ON BSE CARD UP TO 19.8.2005 ONLY. HE FURTHER HELD THAT T HE ASSESSEE HAS ALSO FAILED TO SHOW THAT SUCH AMORTIZATION IS ALLOWABLE UNDER ANY OF THE PROVISIONS OF THE ACT. ACCORDINGLY, HE UPHELD THE ORDER OF AO. 9 . 2 BEFORE US, IN SUPPORT OF THIS SUBMISSIONS, T HE LD.AR PLACED HIS RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CA S E OF TECHNO SHARES AND STOCKS LTD. V/S CIT [2010] 327 ITR 323 (SC) . THE DECISION RENDERED BY THE HONBLE SUPREME COURT RELATES TO THE ITA 3325 / MUM/20 1 1 AND 4371/M/2011 8 DEPRECIATION ALLOWABLE ON MEMBERSHIP C ARD OF STOCK EXCHANGE. THE SUBMISSION OF THE ASSESSEE IS THAT IT HAS ALREADY CAPITALISED THE VALUE OF BSE CARD AT RS.65.75 LAKHS . WHAT IS CLAIMED NOW RELATES TO THE AMORTIZATION OF THE EXCESS PAYMENT . HENCE, IN OUR VIEW, THE DECISION OF HONBLE SUPREME C OURT, REFERRED SUPRA, IS NOT APPLICABLE TO THIS CLAIM. WE NOTICE THAT THIS IS THE LAST YEAR OF CLAIM, WHICH MEANS THAT THE ASSESSEE HAD MADE SIMILAR AMORTISATION CLAIM IN EARLIER YEARS ALSO. HOWEVER, I T WA S NOT SHOWN TO US BY EITHER PARTIES THAT THE SAID CLAIM WAS ALLOWED OR DISALLOWE D IN EARLIER YEARS. BE THAT AS IT MAY, THE LD. CIT ( A) HA S POINTED OUT THAT , AFTER CORPORATISATION OF BSE, EVEN THE DEPRECIATION ON BSE CARD IS ALLOWABLE UP TO 19.8.2005 ONLY. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW TH AT THE ASSESSEE HAS FAILED TO DEMONSTRATE US AS TO HOW THE AMORTIZATION AMOUNT OF RS.6,42,500 / - IS ALLOWABLE AS DEDUCTION UNDER THE INCOME TAX ACT. HENCE, WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE DISALLOWANCE MADE BY AO. 1 0 . THE NEXT ISSUE RELATES TO ASSESSMENT OF SHORT TERM CAPITAL GAINS ARISING ON SALE OF SHARES AS BUSINESS INCOME OF THE ASSESSEE. THE ASSESSEE DECLARED STCG OF RS.33,61,813/ - . THE AO NOTICED THAT THE ASSESS EE HAS INDULGED IN THE INTRADAY TRANSACTIONS AND HE NCE RESULTANT PROFIT SHOULD B E CONSIDERED AS SPECUL ATIVE PROFIT. HOWEVER, THE AO TREATED THE ABOVE SAID AMOUNT AS BUSINESS INCOME OF THE ASSESSEE AND THE SAME WAS CONFIRMED BY THE LD.CIT(A). 1 0 . 1 BEFORE US, THE LD.AR CONTENDED THAT THE ASSESSEE HAS ACTED A S INVESTOR ALSO AND THE CAPITAL GAIN DECLARED IN THE EARLIER YEARS HAS BEEN ACCEPTED BY THE REVENUE AND HENCE THE DEPARTMENT SHOULD FOLLOW CONSISTENCY IN ITS APPROACH AS HELD IN THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V/S EXCEL INDUSTRIES LTD. [2013] 358 ITR 295 (SC) AND ALSO IN THE DECISION RENDERED BY THE HONBLE JURISDICTIONAL HIGH ITA 3325 / MUM/20 1 1 AND 4371/M/2011 9 COURT IN THE CA S E OF CIT V/S GOPAL PUROHIT [2011] REPORTED IN 336 ITR 287 (BOM) , WHICH HAS SINCE BEEN APPROVED BY T HE HONBLE SUPREME COURT REPORTED IN (2 011) 334 ITR (ST.) 108(SC) . 10.2 HOWEVER, WE NOTICE THAT BOTH THE TAX AUTHORITIES HA VE GIVEN FINDINGS THAT THE ASSESSEE HAS EARNED ABOVE SAID AMOUNT ON PURCHASE AND SALE OF SHARES ON THE VERY SAME DATE. IT IS WELL ESTABLISHED PRINCIPLE THAT THE INTEN TION OF A PERSON AT THE TIME OF PURCHASE OF SHARES IS ONE OF THE MOST IMPORTANT CRITERIA TO BE CONSIDERED WHILE DECIDING ABOUT THE NATURE OF A TRANSACTION . T HE VERY FACT THAT THE ASSESSEE HAS BEEN INDULGING IN INTRADAY TRANSACTION , I.E., PURCHASE AND S ALE OF SHARES ON THE VERY SAME DAY WOULD ONLY SHOW THAT THE ASSESSEE HAS NOT INTENDED TO PURCHASE THEM AS AN INVESTOR . HENCE, WE ARE OF THE VIEW THAT THE LD.CIT(A) WAS JUSTIFIED IN CONFIRMING THE ASSESSMENT OF STCG AS BUSINESS INCOME OF THE ASSESSEE . 11 . IN THE RESULT, BOTH THE APPEALS FILED BY REVENUE AS WELL AS THE ASSESSEE ARE TREATED AS PARTLY ALLOWED. 05TH JUNE , 2015 SD SD ( / AMIT SHUKLA ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 5TH JUNE ,2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED ITA 3325 / MUM/20 1 1 AND 4371/M/2011 10 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI