TRUPTI D. BHANSALI, MUMBAI V. ASST CIT 32(3), MUMBAI

ITA 4574/MUM/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5363 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 04-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Business income; Capital Gains
• Section: 143(3); 54F; 234B

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, E MUMBAI , , , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NOS.4572 TO 4574/MUM/2016 ASSESSMENT YEARS: 2004-05, 2005-06 & 2006-07 TRUPTI D. BHANSALI, 16, NEW NEELKAMAL CO-OP. SOCIETY, PEDDER ROAD, MUMBAI-400026 / VS. ACIT -32(3), C -11, 1 ST FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI -400051 ( #$%& ' /ASSESSEE) ( / REVENUE) PAN. NO . AADPB8566D ( ) ' * / DATE OF HEARING : 25/10/2018 ) ' * / DATE OF ORDER: 28/11/2018 #$%& ' ! / ASSESSEE BY SHRI ASHOK PATIL ! / REVENUE BY SHRI D.G. PANSARI-DR ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 2 / O R D E R PER JOGINDER SINGH (VICE PRESIDENT) THIS BUNCH OF THREE APPEALS IS BY THE ASSESSEE AGAI NST THE IMPUGNED ORDERS ALL DATED 15/04/2016 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI, CONFIRMING THE ASSESSM ENT ORDER BY TREATING THE INCOME FROM CAPITAL GAINS AS BUSINESS INCOME BY HOLDING THAT THE ASSESSEE ENTERED INTO TH E ADVENTURE IN THE NATURE OF TRADE AND FAILED TO APPR ECIATE THAT THE SHARES WERE HELD AS INVESTMENT AND NOT STOCK IN TRADE IN THE BOOKS OF ACCOUNTS. 2. DURING HEARING, SHRI ASHOK PATIL, LD. COUNSEL F OR THE ASSESSEE, CLAIMED THAT ON EARLIER OCCASION, THE MATTER TRAVELLED TO THE TRIBUNAL, WHEREIN, ALL THE THREE Y EARS WERE SET-ASIDE TO THE FILE OF THE LD. ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER CONSIDER ING THE EVIDENCES/DOCUMENTS. IT WAS PLEADED THAT THE LD. AS SESSING OFFICER WITHOUT CONSIDERING THE FACTUAL MATRIX AGA IN DECIDED AGAINST THE ASSESSEE BY TREATING THE SAME AS BUSINE SS INCOME. ON THE OTHER HAND, THE LD. DR, SHRI D.G. PA NSARI, DEFENDED THE IMPUGNED ORDER, WHEREIN, THE INCOME WA S TREATED AS BUSINESS INCOME BY ARGUING THAT THERE WA S HUGE VOLUME OF SHARES AND THUS THE CIRCULAR IS PROSPECTI VE IN ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 3 NATURE. IT WAS ALSO PLEADED THAT THE INVESTMENT SO MADE WAS OUT OF BORROWED FUNDS. IN REPLY, THE LD. COUNSEL FO R THE ASSESSEE INVITED TO PAGE-25 OF THE PAPER BOOK. IT W AS PLEADED THAT THE LONG TERM CAPITAL GAIN MAY BE TREATED AS L ONG TERM AND SHORT TERM CAPITAL GAIN MAY BE TREATED AS BUSIN ESS INCOME. RELIANCE WAS PLACED UPON CIRCULAR NO.6 OF 2 016. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT THE ASSESSEE MADE INVESTMENT IN SHARES, SE CURITIES AND UNITS IN MUTUAL FUND FOR THE LAST SEVERAL YEARS . THE ASSESSEE REGULARLY MAKES INVESTMENT EITHER THROUGH IPO OR THROUGH PURCHASE FROM BROKERS IN THE MARKET. SUCH INVESTMENT WAS SHOWN AS INVESTMENT IN HER BALANCE S HEET AND MAKES REGULAR INVESTMENT. THE INCOME ARISING ON SALE OF SHARES AND UNITS OF MUTUAL FUNDS WERE OFFERED FOR T AXATION AS CAPITAL GAIN EITHER BY WAY OF SHORT TERM OR LONG TE RM. IT IS NOTED THAT FOR ASSESSMENT YEAR 2004-05, THE ASSESSE E DECLARED TAXABLE INCOME OF RS.13,96,581/-, IN HER R ETURN FILED ON 10/03/2005, INCLUDING LONG TERM CAPITAL GAIN OF RS.32,14,946/- AND LONG TERM CAPITAL LOSS OF RS.18,16,880/-. THE LD. ASSESSING OFFICER WHILE FRA MING THE ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 4 ASSESSMENT UNDER SECTION 143(3) OF THE ACT TREATED INCOME FROM SHARES, SECURITIES AND MUTUAL FUND TRANSACTION AS BUSINESS INCOME. ON APPEAL BEFORE THE LD. COMMISSIO NER OF INCOME TAX (APPEAL), THE CLAIM OF THE ASSESSEE WAS PARTLY ALLOWED TO THE EFFECT THAT THE DIVIDEND INCOME WAS HELD TO BE EXEMPT FROM TAXATION BY HOLDING THE INCOME FROM SAL E AND PURCHASE OF MUTUAL FUND TRANSACTION AS BUSINESS INC OME. IT IS NOTED THAT, AS MENTIONED EARLIER, THE MATTER WAS EARLIER RESTORED BY THE TRIBUNAL FOR FRESH ADJUDICATION. D URING SET- ASIDE PROCEEDINGS ALSO, THE LD. ASSESSING OFFICER C ONFIRMED THE TRANSACTION ON SALE OF PURCHASE OF SHARES AS WE LL AS MUTUAL FUNDS AS BUSINESS INCOME AGAINST THE CLAIM O F THE ASSESSEE AS CAPITAL GAIN TRANSACTIONS. BEFORE US, T HE ASSESSEE HAS FILED THE DETAILS OF COMPUTATION OF INCOME, STA TEMENT OF SHORT TERM CAPITAL GAIN, STATEMENT OF LONG TERM CAP ITAL GAIN, CAPITAL ACCOUNT, BALANCE SHEET, ETC FOR THE Y EARS UNDER CONSIDERATION. BEFORE ADVERTING FURTHER, IT IS OUR BOUNDED DUTY TO ANALYZED CERTAIN CASES WITH THE FACTS OF TH E PRESENT APPEALS BEFORE US. ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 5 2.2. IN THE CASE OF JANAK S. RANGWALLA VS ACIT (20 07) 11 SOT 627 (MUM. TRIB.), VIDE ORDER DATED 19/12/200 6, THE TRIBUNAL HELD AS UNDER: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER OF CIT(A)-V, MUMBAI, DATED 19-1-2004 RELATING TO ASSESSMENT YEAR 2000-01 AGAINST THE ORDER UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1 961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL. '1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) LEGALLY ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN NOT ALLOWING THE SET OFF OF LONG-TERM CAPITAL LOSS OF RS. 1,02,31,69 1 AGAINST THE SHORT TERM CAPITAL GAINS OF RS. 1,47,15,196. 2.WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNA TIVE, THE APPELLANT SUBMITS THAT THE LD. CIT(A) LEGALLY ERRED IN CONFIR MING THE ACTION OF THE ASSESSING OFFICER IN TREATING THE SHORT-TERM CAPITA L GAINS OF RS. 1,47,15,196 AS PROFIT FROM SHARE TRADING BUSINESS. 3.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) LEGALLY ERRED IN NOT DISPOSING OF THE ADDITIONAL GROUNDS OF APPEAL FILED BY THE APPELLANT ON 19-10-2003. 4.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) LEGALLY ERRED IN NOT GIVING RELIEF IN RESPECT OF ALTERNATIV E PLEA OF THE APPELLANT THAT THE LEARNED ASSESSING OFFICER OUGHT TO HAVE APPLIED THE RATIO OF THE APPELLANT BEING HELD AS TRADER IN RESPECT OF THE AC TIVITIES IN THE PURCHASE AND SALE OF SHARES CARRIED ON BY THE APPELLANT. 4.1IN OTHER WORDS, THE LEARNED ASSESSING OFFICER OU GHT NOT HAVE HELD THE APPELLANT PARTIALLY AS TRADER AND PARTIALLY AS INVE STOR. 5.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) LEGALLY ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN CHARGING INTEREST UNDER SECTIONS 234B AND 234C OF THE INCOME-TAX ACT, 1961.' 3. SHRI JIGNESH SHAH, LEARNED COUNSEL APPEARED FOR TH E ASSESSEE AND SHRI D.K. RAO, DEPARTMENTAL REPRESENTATIVE APPEARED FOR THE REVENUE AND PUT FORWARD THEIR RIVAL SUBMISSIONS. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN THE BUSINESS OF TRADING OF IMPORT AND EXPORT OF DYES AND CHEMICALS AND HAVING TURNOVER OF ABOUT RS. 6,34,00,000. FOR THE PURPOSE OF CARRYI NG OF HIS BUSINESS OF TRADING/EXPORT OF DYES AND CHEMICALS, THE ASSESSEE IS MAINTAINING FULL- FLEDGED OFFICE INFRASTRUCTURE. THE BOOKS OF ACCOUNT ARE AUDITED. IN ADDITION, THE ASSESSEE IS ALSO INVESTING IN SHARES OF VARIOUS COMPANIES, WHEREIN THE INCOME FROM LONG TERM CAPITAL GAINS, SH ORT TERM CAPITAL GAINS AND SPECULATIVE GAIN/LOSS IS BEING SHOWN BY T HE ASSESSEE FROM YEAR TO YEAR. IT IS THE CLAIM OF THE ASSESSEE THAT ALL T HE HOLDINGS IN SHARES OF INDIAN COMPANIES FROM YEAR TO YEAR IS REFLECTED AS INVESTMENT IN THE BALANCE SHEET OF THE ASSESSEE. DURING THE COURSE OF HEARING, THE ASSESSEE HAS FILED THE COMPUTATION OF INCOME ALONG WITH WORK ING OF ACCOUNTS FOR ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 6 ASSESSMENT YEAR BEGINNING FROM 1995-96 ONWARDS TILL UP-TO-DATE WHEREIN SIMILAR TRANSACTIONS IN SALE AND PURCHASE OF SHARES BOTH ON LONG TERM AND SHORT TERM BASIS HAVE BEEN CATEGORICALLY SHOWN BY T HE ASSESSEE AS INCOME FROM CAPITAL GAINS AND ACCEPTED BY THE INCOME-TAX D EPARTMENT. THE COPIES OF ASSESSMENT ORDERS RANGING FROM ASSESSMENT YEAR 1995-96 TO ASSESSMENT YEAR 1999-2000 HAVE BEEN FILED ON RECORD AND IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE ASSESSMENT IN SOME O F THE YEARS HAVE BEEN COMPLETED UNDER SECTION 143(3) OF THE ACT, WHEREIN THE TOTAL INCOME DISCLOSED UNDER THE HEAD CAPITAL GAINS BOTH ON ACCO UNT OF SHORT TERM OR LONG TERM HAS BEEN ASSESSED AS INCOME FROM CAPITAL GAINS. 5. THE LEARNED AR FOR THE ASSESSEE POINTED OUT THAT D URING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD SHOWN LONG TERM CAPI TAL LOSS OF RS. 1,02,31,691, WHICH WAS ADJUSTED AGAINST THE SHORT T ERM CAPITAL GAINS OF RS. 1,47,15,196. THE LONG TERM CAPITAL LOSS HAS BEE N ACCEPTED BY THE ASSESSING OFFICER BUT THE ADJUSTMENT AGAINST SHORT TERM CAPITAL GAIN HAS NOT BEEN ALLOWED, AS ACCORDING TO THE ASSESSING OFF ICER THE ASSESSEE IS A TRADER IN SHARES AND NOT AN INVESTOR IN SHARES. THE LEARNED AR FURTHER BROUGHT TO OUR ATTENTION THAT COPIES OF DETAILS OF SHORT TERM CAPITAL GAINS FOR THE YEAR UNDER CONSIDERATION AND ALSO COMPARATI VE WORKING OF SHORT TERM CAPITAL GAINS IN EARLIER YEARS WHEREIN SIMILAR TYPE OF TRANSACTIONS IN HUGE NUMBERS HAVE BEEN CARRIED OUT AND HAVE BEEN AC CEPTED. RELIANCE WAS PLACED ON VARIOUS JUDICIAL PRONOUNCEMENTS OF THE AP EX COURT AND VARIOUS HIGH COURTS AND ALSO THE DECISIONS OF THE TRIBUNAL FOR THE PROPOSITION THAT THE QUESTION AS TO WHETHER THE SHARES ASSETS SOLD WAS AN INVESTMENT STOCK- IN-TRADE WAS DETERMINED ON THE BASIS OF ENTRIES MAD E BY THE ASSESSEE IN THE BOOKS OF ACCOUNT WHEN THE SAID SHARES ASSETS WERE P URCHASED AS THE SAID ENTRIES DEMONSTRATED THE INTENTION WITH WHICH THE S AID SHARES ASSETS WERE PURCHASED. LIST OF DECISIONS WERE ALSO FILED FOR TH E PROPOSITION THAT THE QUESTION IN THE CURRENT YEAR AS TO WHETHER THE ASSE SSEE WAS AN INVESTOR OR DEALER IN SHARES OR WHETHER THE SHARES ASSETS SOLD WAS AN INVESTMENT STOCK- IN-TRADE WAS DETERMINED ON THE BASIS OF THE POSITIO N TREATMENT GIVEN BY THE DEPARTMENT IN PRECEDING YEARS. ON CONCLUSION, THE LEARNED AR FOR THE ASSESSEE ALSO DREW OUR ATTENTION TO VARIOUS JUDICIA L PRONOUNCEMENTS WHEREIN THE FINDINGS IN THE CURRENT YEAR WERE BASED ON THE POSITION IN THE EARLIER YEARS. THE LEARNED DR ON THE OTHER HAND VEH EMENTLY RELYING ON THE ORDER OF CIT(A) AND THE ASSESSING OFFICER STATED TH AT THE MERE INVESTMENT SHOWN IN THE BOOKS OF ACCOUNT DOES NOT MEAN ANYTHIN G AND THE FREQUENCY OF TRANSACTION AND THE CONDUCT OF THE PARTY CLEARLY SHOWS THAT HE IS A TRADER IN SHARES AND NOT AN INVESTOR IN SHARES. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E RECORDS. THE FACTS OF THE PRESENT CASE ARE THAT THE ASSESSEE HAD EARNE D INCOME FROM SHORT TERM CAPITAL GAINS AMOUNTING TO RS. 1,47,15,196 ON SALE OF SHARES IN THE YEAR UNDER CONSIDERATION, WHICH WAS CLAIMED TO BE A DJUSTED AGAINST LONG TERM CAPITAL LOSS. THE ASSESSEE HAS ALSO DECLARED I NCOME FROM SPECULATION GAINS/LOSS WHICH ARE ON ACCOUNT OF SALE AND PURCHASE OF SHARES WITHOUT DELIVERY OF THE SHARES. DURING THE YEAR UND ER CONSIDERATION, THE ASSESSEE HAD ALSO CLAIMED LONG TERM CAPITAL LOSS OF RS. 1,02,31,691 ON SALE OF SHARES WHICH WERE HOLD BY THE ASSESSEE AS I NVESTMENT AND DULY REFLECTED IN HIS BALANCE SHEET AS INVESTMENT. SIMIL AR TRANSACTION OF SALE AND PURCHASE OF SHARES ARE BEING CARRIED OUT BY THE ASSESSEE IN PRECEDING ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 7 YEARS, DETAILS OF WHICH HAVE BEEN FILED ON RECORD. IN ADDITION TO THE CAPITAL GAINS RECEIVED FROM SALE OF SHARES THE ASSESSEE HAD DECLARED INCOME FROM DIVIDEND RECEIVED FROM THE SAID SHARES BEING HELD A S INVESTMENT BY THE ASSESSEE. THE MERE VOLUME OF TRANSACTION TRANSACTED BY THE ASSESSEE WOULD NOT ALTER THE NATURE OF TRANSACTION. IT IS AN ESTAB LISHED PRINCIPLE THAT INCOME IS TO BE COMPUTED WITH REGARD TO THE TRANSACTION. T HE TRANSACTION IN WHOLE HAS TO BE TAKEN INTO CONSIDERATION AND THE MAGNITUD E OF THE TRANSACTION DOES NOT ALTER THE NATURE OF TRANSACTION. THOUGH TH E PRINCIPLE OF RES JUDICATA DOES NOT APPLY TO THE INCOME-TAX PROCEEDINGS AS EA CH YEAR IS AN INDEPENDENT YEAR OF THE ASSESSMENT BUT IN ORDER TO MAINTAIN CONSISTENCY, IT IS A JUDICIALLY ACCEPTED PRINCIPLE THAT SAME VIEW S HOULD BE ADOPTED FOR THE SUBSEQUENT YEARS, UNLESS THERE IS A MATERIAL CHANGE IN THE FACTS. THEIR LORDSHIPS OF HONBLE SUPREME COURT IN THE RADHASOAMI SATSANG V. CIT [1992] 193 ITR 321 1 HAVE CATEGORICALLY HELD AS UNDER : '... STRICTLY SPEAKING, RES JUDICATA DOES NOT APPLY TO INCOME-TAX PROCEEDINGS. THOUGH, EACH ASSESSMENT YEAR BEING A U NIT, WHAT WAS DECIDED IN ONE YEAR MIGHT NOT APPLY IN THE FOLLOWING YEAR; WHERE A FUNDAMENTAL ASPECT PERMEATING THROUGH DIFFERENT ASSESSMENT YEAR S HAS BEEN FOUND AS A FACT ONE WAY OR THE OTHER AND PARTIES HAVE ALLOWED THAT POSITION TO BE SUSTAINED BY NOT CHALLENGING THE ORDER, IT WOULD NO T BE AT ALL APPROPRIATE TO ALLOW THE POSITION TO BE CHANGED IN A SUBSEQUENT YE AR'. THE SAME VIEW HAS BEEN TAKEN BY THE HONBLE DELHI H IGH COURT IN CIT V. NEO POLY PACK (P.) LTD. [2000] 245 ITR 492 2 . 7. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE IS HOLDING THE SHARES AS INVESTMENT FROM YEAR TO YEAR. IT IS THE INTENTION O F THE ASSESSEE WHICH IS TO BE SEEN TO DETERMINE THE NATURE OF TRANSACTION COND UCTED BY THE ASSESSEE. THOUGH THE INVESTMENT IN SHARES IS ON A LARGE MAGNI TUDE BUT THE SAME SHALL NOT DECIDE THE NATURE OF TRANSACTION. SIMILAR TRANS ACTIONS OF SALE AND PURCHASE OF SHARES IN THE PRECEEDING YEARS HAVE BEE N HELD TO BE INCOME FROM CAPITAL GAINS BOTH ON LONG TERM AND SHORT TERM BASIS. THE TRANSACTION IN THE YEAR UNDER CONSIDERATION ON ACCO UNT OF SALE AND PURCHASE OF SHARES IS SAME AS IN THE PRECEDING YEARS AND THE SAME MERITS TO BE ACCEPTED AS SHORT TERM CAPITAL GAINS. THERE IS NO B ASIS FOR TREATING THE ASSESSEE AS A TRADER IN SHARES, WHEN HIS INTENTION WAS TO HOLD THE SHARES IN INDIAN COMPANIES AS AN INVESTMENT AND NOT AS STOCK- IN-TRADE. THE MERE MAGNITUDE OF THE TRANSACTION DOES NOT CHANGE THE NA TURE OF TRANSACTION, WHICH ARE BEING ASSESSED AS INCOME FROM CAPITAL GAI NS IN THE PAST SEVERAL YEARS. THE ASSESSING OFFICER IS DIRECTED TO SET OFF THE LONG TERM CAPITAL LOSS AGAINST THE SHORT TERM CAPITAL GAIN OF THE YEA R UNDER CONSIDERATION. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AL LOWED. 8. THE ASSESSEE HAS ALSO RAISED THE ISSUE OF CHARGING OF INTEREST UNDER SECTIONS 234B AND 234C OF THE ACT, WHICH IS CONSEQU ENTIAL IN NATURE. THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSE D. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 8 2.3. IN THE AFORESAID ORDER THE TRIBUNAL CONSIDERE D THE DECISION IN RADHASOAMI SATSANG VS CIT (193 ITR 321) (SUPREME COURT) AND CIT VS NEO POLY PACK PVT. LTD. (2000) 245 ITR 492 (DEL.). IN THIS CASE, THE ASSESSEE WAS HOLDING SHARES AS INVESTMENT FROM YEAR TO YEAR AND THE INVE STMENT IN SHARES WAS OF LARGE MAGNITUDE. IT WAS HELD THAT ME RE VOLUME OF TRANSACTION, TRANSACTED BY THE ASSESSEE WOULD NO T ALTER THE NATURE OF TRANSACTION. THE LD. ASSESSING OFFICER TR EATED THE ASSESSEE AS TRADER AND NOT INVESTOR. HOWEVER, DURIN G HEARING, THE LD. COUNSEL FOR THE ASSESSEE, TO PUT AN END TO THE LITIGATION, ADVANCE LIMITED ARGUMENT BEFORE US THAT WHEREVER, THERE IS LONG TERM CAPITAL GAIN, THAT MAY BE ACCEPT ED AS SUCH AND THE SHORT TERM CAPITAL GAIN MAY BE TREATED AS B USINESS INCOME. THE LD. DR ALSO HAS NO OBJECTION TO THE SU BMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. CONSIDERING TH E SUBMISSIONS FROM BOTH SIDES, WE DIRECT THE LD. ASSE SSING OFFICER THAT WHEREVER, THE ASSESSEE IS HAVING LONG TERM CAPITAL GAIN THAT MAY BE DECIDED ACCORDINGLY, AS PE R LAW AND THE SHORT TERM CAPITAL GAIN MAY BE TREATED AS BUSIN ESS INCOME AND DECIDE IN ACCORDANCE WITH LAW. THE ASSES SEE IS DIRECTED TO FURNISH THE NECESSARY EVIDENCE BEFORE T HE LD. ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 9 ASSESSING OFFICER. THE LD. ASSESSING OFFICER IS DIR ECTED TO EXAMINE THE CLAIM OF THE ASSESSEE IN ACCORDANCE WIT H OUR ABOVE DIRECTIONS. THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3. THE NEXT GROUND IS WITH RESPECT TO GRANTING EXEMPTION UNDER SECTION 54F OF THE ACT, CONSEQUENT TO INVESTMENT MADE OUT OF CAPITAL GAINS EARNED FROM SA LE OF SHARES AND MUTUAL FUND. THE LD. COUNSEL FOR THE ASS ESSEE CONTENDED THAT IT IS CONSEQUENTIAL IN NATURE. THE LD. DR ALSO PLEADED THAT IT IS CONSEQUENTIAL IN NATURE. CONSIDE RING THE TOTALITY OF FACTS AND THE ARGUMENTS FROM BOTH SIDES , SINCE, WE HAVE DIRECTED THE LD. ASSESSING OFFICER WHILE DEALI NG WITH GROUND NO.1((SUPRA)), THIS GROUND IS HELD TO BE CON SEQUENTIAL IN NATURE AND SET-ASIDE TO THE FILE OF THE LD. ASSE SSING OFFICER TO DECIDE IN ACCORDANCE WITH LAW AS THE SAME WILL B E DEPENDENT UPON THE CONCLUSION OF GROUND NO.1(LONG T ERM CAPITAL GAIN/SHORT TERM CAPITAL GAIN). THE ASSESSEE BE GIVEN OPPORTUNITY. 4. THE NEXT GROUND PERTAINS TO LEVY OF INTEREST UN DER SECTION 234A, 234B AND 234C OF THE ACT. THIS GROUND WAS ALSO ARGUED TO BE CONSEQUENTIAL IN NATURE FROM BOTH SIDES. IN ITA NOS.4572 TO 4574/MUM/2016 TRUPTI D. BHANSALI. 10 THE LIGHT OF THE ABOVE DISCUSSION, THIS GROUND IS A LSO HELD TO BE CONSEQUENTIAL IN NATURE. FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED FO R STATISTICAL PURPOSES IN TERMS INDICATED HEREINABOVE . THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF HEARING ON 25/10/2018. SD/- SD/- ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER / VICE PRESIDENT ( MUMBAI; , DATED : 28/11/2018 F{X~{T? P.S/. #. . $%&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT (RESPECTIVE ASSESSEE) 2. 01./ / THE RESPONDENT. 3. 2 2 3' ( ) / THE CIT, MUMBAI. 4. 2 2 3' / CIT(A)- , MUMBAI, 5. 56 0#'#$ , 2 * $ 7 , ( / DR, ITAT, MUMBAI 6. 8% 9( / GUARD FILE. ! / BY ORDER, /! (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI