CHANDRU T WADHWA (BIGGER) HUF, MUMBAI V. ITO 19(1)(3, MUMBAI

ITA 448/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5809 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 20-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M RAJAN
• Assessee Lawyers: VISHWAS V MEHENDALE
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 448/MUM/2012 ASSESSMENT YEAR: 2006-07 CHANDRU T WADHWA (BIGGER) HUF, HARI KUNJ, 633, P.D.HINDUJA MARG KHAR (W), MUMBAI-400 052. PAN:- AABH6838D VS. ITO 19(1) 3, MUMBAI. APPELLANT RESPONDENT ASSESSEE BY : SHRI VISHWAS V. MEHENDALE REVENUE BY : SHRI M.RAJAN DATE OF HEARING : 11.02.2014 DATE OF PRONOUNCEMENT : 11.02.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD.CIT(A)- 22, MUMBAI DATED 22.11.2011 FOR THE ASSESSMENT YEA RS 2006-07. 2. IN THIS APPEAL, THE ASSESSEE HAS AGITATED TH E ACTION OF THE LD.CIT(A) CONFIRMING THE DECISION OF THE AO TREATING THE SHORT TERM CAPI TAL GAIN OF RS.8,15,108/- CLAIMED BY THE ASSESSEE AS BUSINESS INCOME. THE RELEVANT FA CTS ARE THAT THE ASSESSEE, A HUF, IN THE RETURN OF INCOME, DECLARED A SHORT TERM CAPITAL GAIN OF RS. 8,15,108/- ON ACCOUNT OF THE INCOME DERIVED ON TRANSFER/SALE OF S HARES. HOWEVER, IN THE ASSESSMENT FRAMED U/S 143(3), THE AO TREATED THE IM PUGNED INCOME AS BUSINESS INCOME AND THE SAME WAS CONFIRMED BY THE LD.CIT(A) ON APPEAL. AGGRIEVED BY THE IMPUGNED DECISION, THE ASSESSEE IS IN APPEAL BEFORE US. ITA NO. 448/MUM/2012 CHANDRU T WADWA (BIGGER) HUF ASSESSMENT YEAR: 2006-07 2 3. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS NOTED THAT IN THE EARLIER AND SUBSEQUENT YEARS, THE ASSES SEE HAS DECLARED THE INCOME ARISING OUT OF TRANSFER/SALE OF SHARES UNDER THE HE AD CAPITAL GAINS AND THE SAME HAS BEEN ACCEPTED BY THE DEPARTMENT TREATING THE ASSESS EE AS AN INVESTOR. THERE IS NOTHING TO SHOW THAT IN THE CURRENT YEAR UNDER CONS IDERATION, THE ASSESSEES STYLE AND METHOD OF EARNING INCOME HAS CHANGED. ALSO, THE METHOD OF FILING THE RETURN OF INCOME REMAINS CONSTANT AND IN ALL THE YEARS THE DE PARTMENT HAS BEEN ACCEPTING THE SAME WITHOUT ANY QUESTION. WE, FOLLOWING THE RATIO LAID DOWN BY THE TRIBUNAL IN GOPAL PROHIT VS. JCIT , (2009) 20 DTR (MUMBAI) (TRIB) 99 WHICH HAS SUBSEQ UENTLY BEEN UPHELD BY THE HONBLE HIGH COURT OF BOMBAY (20 11) 336 ITR 287 & ALSO BY THE HONBLE APEX COURT BY DISMISSING THE SLP OF THE DEP ARTMENT VIDE ORDER DATED 15.11.2010, FIND NO JUSTIFICATION ON THE PART OF TH E AUTHORITIES BELOW TO TREAT THE IMPUGNED INCOME AS BUSINESS INCOME. THEREFORE, WE DIRECT THE AO TO TREAT THE IMPUGNED INCOME OF RS.8,15,108/- UNDER THE HEAD SH ORT TERM CAPITAL GAIN AS CLAIMED BY THE ASSESSEE. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF FEBRUARY, 2014. SD/- SD/- (N.K.SAINI) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 11.02.2014. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.