OCCASION IMPEX PVT. LTD, MUMBAI V. D.C.I.T. (OSD) 8(1), MUMBAI

ITA 4867/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2791 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 29-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR SINGH
• Assessee Lawyers: A K GHOSH
• Keywords: Business income; Rule of consistency; Question of law

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.4867/MUM/2012 ASSESSMENT YEAR- 2008-09 OCCASION IMPEX PVT. LTD. C-612, CRYSTAL PLAZA, ANDHERI NEW LINK ROAD, OPPOSITE INFINITY MALL, ANDHERI (WEST), MUMBAI-400053 / VS. DCIT(OSD)-8(1), MUMBAI ( /ASSESSEE) ( ! / REVENUE) PAN. NO. AABFO3272H / ASSESSEE BY SHRI A.K.GHOSH ! / REVENUE BY SHRI PRADEEP KUMAR SINGH- DR ' !# $ % / DATE OF HEARING : 02/11/2015 $ % / DATE OF ORDER: 20/11/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 26/04/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE FIRST GROUND RAISED BY THE ASSESSEE PERTAINS TO CONFIRMING/TREATING PROFIT ON SALE OF SHARES AS BUS INESS OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 2 INCOME AND NOT AS SHORT TERM CAPITAL GAINS WITHOUT APPRECIATING THE FACTS. 2. DURING HEARING, SHRI A. K. GHOSH, LD. COUNSEL F OR THE ASSESSEE, ADVANCED HIS ARGUMENTS, WHICH ARE IDE NTICAL TO THE GROUND RAISED BY CONTENDING THAT THE ASSESSEE S OLD SHARES OF ONLY ONE SCRIP, WHICH WAS ALLOTTED ON CON VERSION OF PREFERENTIAL WARRANT BY M/S VALECHA ENGINEERING LTD . IT WAS ALSO CONTENDED THAT M/S VALECHA ENGINEERING LTD. AL LOTTED 2,25,000 SHARES UPON CONVERSION OF PREFERENTIAL WAR RANT DURING THE F.Y. 2007-08, WHICH WERE CREDITED IN THE DE-MAT ACCOUNT OF THE ASSESSEE DURING F.Y. 2007-08 ITSELF. THE LD. COUNSEL FURTHER CONTENDED THAT OUT OF THE ALLOTTED SHARES, THE ASSESSEE SOLD 2,24,980 EQUITY SHARES ON TEN DIFFERE NT TRADING SESSION DURING THE PERIOD 18/09/2007 TO 206/03/2008 AND FURTHER RECEIVED 66510 BONUS SHARES ON 13/11/2007 A ND ALSO PURCHASE 1,33,000 SHARES ON 19/03/2008 AND 27/03/2008 THROUGH STOCK EXCHANGE. ON THE ISSUE OF CONSISTENCY, IT WAS ARGUED THAT THE ASSESSEE ALWAYS OFFERED GAINS FROM INVESTMENT UNDER THE HEAD CAPITAL GAINS AND ACCEPTED BY THE DEPARTMENT FOR WHICH OUR ATTENTION WAS INVITED TO PAGES 6, 11, 17 & 18 AND 25 OF THE PAPER BOOK. RELIANCE WAS PLACED UPON THE DECISION FROM HONBLE BOMBAY HIGH COURT IN GOPAL PUROHIT 228 CTR 582 (BOM.) AND SLP OF THE DEPARTMENT, FILED BEFORE HONBLE APEX COURT, WA S DISMISSED IN 334 ITR (ST.) 308. ON THE ISSUE OF FR EQUENCY OF TRANSACTION, IT WAS CONTENDED THAT THE ASSESSEE ACQ UIRED SHARES ONLY ON FOUR DIFFERENT DATES WHICH WERE TRAN SFERRED ON OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 3 TEN DIFFERENT DATES BY ARGUING THAT THE FREQUENCY O F THE TRANSACTION IS VERY LOW. THE AVERAGE HOLDING FOR SH ARES, ACQUIRED THROUGH CONVERSION OF PREFERENTIAL WARRANT S WAS ARGUED TO BE RANGING BETWEEN 3 TO 194 DAYS. SO FAR AS, INVESTOR BEHAVIOR IS CONCERNED, IT WAS ARGUED THAT THE ASSESSEE RETAINED 47% OF THE TOTAL SHARES, ACQUIRED DURING THE YEAR AND SUCH SHARES WERE SHOWN AS INVESTMENT I N THE FINANCIAL STATEMENTS FOR WHICH OUR ATTENTION WAS IN VITED TO PAGES 3 & 5 OF THE PAPER BOOK. THE LD. COUNSEL CLA IMED THAT DIVIDEND INCOME OF RS.2,25,000 WAS EARNED BY MAKING THE INVESTMENT IN SHARES AND SUCH SHARES WERE VALUED AT COST AND NOT AT COST OF MARKET PRICE WHICHEVER IS LESS. SO FAR AS, MAINTENANCE OF ESTABLISHMENT IS CONCERNED, IT WAS C LAIMED THAT THERE WAS NO EMPLOYEE, THUS, THERE WAS NO COST TO THE SALARY AND MERELY EXPENDITURE OF RS.28,301/- WAS IN CURRED (RS.2500 AS AUDITORS FEE, RS.8569 AS BANK CHARGES A ND SOME OTHER MINOR LEGAL AND ADMINISTRATIVE EXPENSES FOR W HICH OUR ATTENTION WAS INVITED TO SCHEDULE H OF THE PROFIT & LOSS ACCOUNT. IT WAS ALSO EXPLAINED THAT THE ASSESSEE U SED INTEREST FREE FUNDS AND NO COST OF INTEREST WAS INC URRED FOR WHICH OUR ATTENTION WAS INVITED TO PROFIT & LOSS AC COUNT AND THE RELEVANT SCHEDULE. RELIANCE WAS PLACED UPON TH E DECISION IN THE CASE OF SMT. RUPAL SUMEGH MODI VS ACIT (ITA NO.5758/MUM/2013) ORDER DATED 28/10/2015. 2.1. ON THE OTHER HAND, THE LD. DR, SHRI PRADEEP K UMAR SINGH, RELIED UPON THE CONCLUSION ARRIVED AT IN THE IMPUGNED OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 4 ORDER BY CONTENDING THAT BORROWED FUNDS WERE USED B Y THE ASSESSEE. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDER, LEADING T O ADDITION MADE TO THE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSER TIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF KEPT IN JUXT APOSITION AND ANALYZED, WE NOTE THAT M/S VALECHA ENGINEERING LTD. ALLOTTED 2,25,000 PREFERENTIAL WARRANTS AT THE RATE OF RS.199.55 PER WARRANT TO THE ASSESSEE. AS PER THE T ERMS OF THE ISSUE, THE ASSESSEE PAID RS.99.95 (10%) PER WAR RANT AND THE BALANCE AMOUNT OF RS.179.60 WAS PAYABLE ON CONV ERSION. AS PER THE TERMS OF THE ISSUE, EACH WARRANT WAS TO BE CONVERTED INTO ONE EQUITY SHARES OF RS.10 EACH, FUL LY PAID ON CONVERSION. ACCORDINGLY, A SUM OF RS.44,89,875/- WA S PAID BY THE ASSESSEE TOWARDS ALLOTMENT OF PREFERENTIAL W ARRANTS DURING THE PREVIOUS YEAR RELEVANT TO A.Y.2006-07. M /S VALECHA ENGINEERING LTD., THUS, ALLOTTED 2,25000 WA RRANTS TO THE ASSESSEE DURING F.Y. 2005-06. THE PREFERENTIA L WARRANTS WERE CONVERTED INTO 2,25,000 EQUITY SHARES DURING T HE FINANCIAL YEAR 2007-08. IT IS NOTED, AS CANVASSED BY THE ASSESSEE, SHARES OF ONLY ONE SCRIP, WHICH WERE ALLO TTED ON CONVERSION OF PREFERENTIAL WARRANT BY M/S VALECHA ENGINEERING LTD. WERE SOLD. M/S VALECHA ENGINEERING LTD. ALLOTTED 2,25,000 SHARES UPON CONVERSION OF PREFERE NTIAL WARRANTS DURING F.Y. 2007-08, WHICH WERE CREDITED I N THE DE- MAT ACCOUNT OF THE ASSESSEE DURING F.Y. 2007-08. OU T OF OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 5 THESE ALLOTTED SHARES, THE ASSESSEE SOLD 2,24,980 E QUITY SHARES ONLY ON TEN DIFFERENT TRADING SESSIONS DURIN G THE PERIOD FROM 18/09/2007 TO 26/03/2008. THUS, VOLUME OF TRANSACTION IS NOT VERY HIGH. IT IS ALSO NOTED THAT THE ASSESSEE OFFERED GAINS OUT OF THE INVESTMENT UNDER THE HEAD CAPITAL GAINS AND THE SAME WERE ACCEPTED BY THE DEPARTMENT IN A.Y. 2009-10, 2010-11, 2011-12, THOUGH U/S 143(1) OF THE ACT AS IS EVIDENT FROM PAGES, 9, 11 & 12 (A.Y. 2009-10), P AGES 15, 17 TO 19, A.Y. 2010-11 AND PAGES 23, 25 AND 26 FOR A.Y. 2011-12. THE NUMBER OF SCRIPS SOLD AND RESULTANT CA PITAL GAIN FOR A.Y. 2008-09 TO 2011-12 ARE AVAILABLE AT P AGES, 6,11,17-18 AND 25 OF THE PAPER BOOK, THUS, WE FIND MERIT IN THE CONTENTION OF THE ASSESSEE, WHICH IS FURTHER FO RTIFIED BY THE DECISION FROM HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GOPAL PUROHIT (228 CTR 582)(BOM.). THE REL EVANT PORTION FROM THE AFORESAID ORDER FROM THE HONBLE H IGH COURT IS REPRODUCED HEREUNDER FOR READY REFERENCE: BY THE COURT-THE FOLLOWING QUESTIONS OF LAW HAVE BE EN FORMULATED IN THE APPEAL FILED BY THE REVENUE AGAIN ST THE JUDGMENT OF THE TRIBUNAL, DT. 10TH FEB., 2009 : '(A) WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE TRIBUNAL WAS JUSTIFIED IN TREAT ING THE INCOME FROM SALE OF 7,59,003 SHARES FOR RS. 5,00,12 ,879 AS AN INCOME FROM SHORT-TERM CAPITAL GAIN AND SALE OF 3,8 8,797 SHARES FOR RS. 6,65,02,340 AS LONG-TERM CAPITAL GAI N AS AGAINST THE 'INCOME FROM BUSINESS' ASSESSED BY THE AO ? (B) WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT PRINCIPLE OF CONSISTENCY MUST BE APPLIED HERE AS AUTHORITIES DID NOT TREAT THE ASSESSEE AS A SHARE TRADER IN PRECEDING Y EAR, IN SPITE OF EXISTENCE OF SIMILAR TRANSACTION, WHICH CANNOT I N ANY WAY OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 6 OPERATE AS RES JUDICATA TO PRECLUDE THE AUTHORITIES FROM HOLDING SUCH TRANSACTIONS AS BUSINESS ACTIVITIES IN CURRENT YEAR ? (C) WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT PRESENTATION IN THE BOOKS OF ACCOUNT IS THE MOST CR UCIAL SOURCE OF GATHERING INTENTION OF THE ASSESSEE AS REGARDS T O THE NATURE OF TRANSACTION WITHOUT APPRECIATING THAT THE ENTRIE S IN THE BOOKS OF ACCOUNTS ALONE ARE NOT CONCLUSIVE PROOF TO DECIDE THE INCOME ?' 2. THE TRIBUNAL HAS ENTERED A PURE FINDING OF FACT THAT THE ASSESSEE WAS ENGAGED IN TWO DIFFERENT TYPES OF TRAN SACTIONS. THE FIRST SET OF TRANSACTIONS INVOLVED INVESTMENT I N SHARES. THE SECOND SET OF TRANSACTIONS INVOLVED DEALING IN SHAR ES FOR THE PURPOSES OF BUSINESS (DESCRIBED IN PARA 8.3 OF THE JUDGMENT OF THE TRIBUNAL AS TRANSACTIONS PURELY OF JOBBING WITH OUT DELIVERY). THE TRIBUNAL HAS CORRECTLY APPLIED THE P RINCIPLE OF LAW IN ACCEPTING THE POSITION THAT IT IS OPEN TO AN ASSESSEE TO MAINTAIN TWO SEPARATE PORTFOLIOS, ONE RELATING TO I NVESTMENT IN SHARES AND ANOTHER RELATING TO BUSINESS ACTIVITIES INVOLVING DEALING IN SHARES. THE TRIBUNAL HELD THAT THE DELIV ERY BASED TRANSACTIONS IN THE PRESENT CASE, SHOULD BE TREATED AS THOSE IN THE NATURE OF INVESTMENT TRANSACTIONS AND THE PROFI T RECEIVED THEREFROM SHOULD BE TREATED EITHER AS SHORT-TERM OR , AS THE CASE MAY BE, LONG-TERM CAPITAL GAIN, DEPENDING UPON THE PERIOD OF THE HOLDING. A FINDING OF FACT HAS BEEN A RRIVED AT BY THE TRIBUNAL AS REGARDS THE EXISTENCE OF TWO DISTIN CT TYPES OF TRANSACTIONS NAMELY, THOSE BY WAY OF INVESTMENT ON ONE HAND AND THOSE FOR THE PURPOSES OF BUSINESS ON THE OTHER HAND. QUESTION (A) ABOVE, DOES NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. 3. INSOFAR AS QUESTION (B) IS CONCERNED, THE TRIBUN AL HAS OBSERVED IN PARA 8.1 OF ITS JUDGMENT THAT THE ASSES SEE HAS FOLLOWED A CONSISTENT PRACTICE IN REGARD TO THE NAT URE OF THE ACTIVITIES, THE MANNER OF KEEPING RECORDS AND THE P RESENTATION OF SHARES AS INVESTMENT AT THE END OF THE YEAR, IN ALL THE YEARS. THE REVENUE SUBMITTED THAT A DIFFERENT VIEW SHOULD BE TAKEN FOR THE YEAR UNDER CONSIDERATION, SINCE THE P RINCIPLE OF RES JUDICATA IS NOT APPLICABLE TO ASSESSMENT PROCEE DINGS. THE OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 7 TRIBUNAL CORRECTLY ACCEPTED THE POSITION THAT THE P RINCIPLE OF RES JUDICATA IS NOT ATTRACTED SINCE EACH ASSESSMENT YEAR IS SEPARATE IN ITSELF. THE TRIBUNAL HELD THAT THERE OU GHT TO BE UNIFORMITY IN TREATMENT AND CONSISTENCY WHEN THE FA CTS AND CIRCUMSTANCES ARE IDENTICAL, PARTICULARLY IN THE CA SE OF THE ASSESSEE. THIS APPROACH OF THE TRIBUNAL CANNOT BE F AULTED. THE REVENUE DID NOT FURNISH ANY JUSTIFICATION FOR ADOPT ING A DIVERGENT APPROACH FOR THE ASSESSMENT YEAR IN QUEST ION. QUESTION (B), THEREFORE, DOES NOT ALSO RAISE ANY SU BSTANTIAL QUESTION. 4. INSOFAR AS QUESTION (C) IS CONCERNED, AGAIN THER E CANNOT BE ANY DISPUTE ABOUT THE BASIC PROPOSITION THAT ENTRIE S IN THE BOOKS OF ACCOUNT ALONE ARE NOT CONCLUSIVE IN DETERM INING THE NATURE OF INCOME. THE TRIBUNAL HAS APPLIED THE CORR ECT PRINCIPLE IN ARRIVING AT THE DECISION IN THE FACTS OF THE PRESENT CASE. THE FINDING OF FACT DOES NOT CALL FOR INTERFE RENCE IN AN APPEAL UNDER S. 260A. NO SUBSTANTIAL QUESTION OF LA W IS RAISED. THE APPEAL IS ACCORDINGLY DISMISSED . IT IS WORTH MENTIONING THAT SLP OF THE DEPARTMENT, AGAINST THE AFORESAID DECISION, WAS DISMISSED BY HONBLE AP EX COURT (334 ITR (ST.) 308). THEREFORE, IT CAN BE CONCLUDE D THAT VOLUME OF TRANSACTIONS ARE NOT SO HIGH AS THE ASSES SEE SOLD SHARES OF ONLY ONE SCRIP. 2.3. IF THIS ISSUE IS ANALYZED WITH RESPECT TO CON SISTENCY, ADMITTEDLY, FOR A.Y. 2009-10 TO 2011-12, THE CLAIM OF THE ASSESSEE WAS ALLOWED, THOUGH U/S 143(1), AS IS EVID ENT FROM VARIOUS PAGES OF THE PAPER BOOK, SUCH AS 9,11 AND 1 2 (A.Y. 2009-10), 15, 17 TO 19 (A.Y. 2010-11) AND 23, 25 AN D 26 (A.Y. 2011-12), THUS, UNLESS AND UNTIL CONTRARY FACTS ARE BROUGHT ON RECORD ON THE ISSUE OF CONSISTENCY ALSO, THERE IS A MERIT IN THE CLAIM OF THE ASSESSEE. OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 8 2.4. SO FAR AS, FREQUENCY OF TRANSACTIONS ARE CONC ERNED, AS EXPLAINED BY THE ASSESSEE, THE ASSESSEE ACQUIRED SHARES ONLY ON FOUR DIFFERENT DATES, DURING THE YEAR AND T RANSFERRED THEM ON TEN DIFFERENT DATES, THUS, THE FREQUENCY OF TRANSACTION IS ALSO NOT VERY HIGH. AT THE SAME TIME, THE HOLDIN G PERIOD, FOR SHARES ACQUIRED THROUGH CONVERSION OF PREFERENTIAL WARRANTS IS ALSO RANGING FROM 3 TO 194 DAYS. THE ASSESSEE IS A VERY CONSERVATIVE INVESTORS, WHO MADE, INITIALLY, BY INV ESTING, ONLY 10% OF THE TOTAL COST OF EQUITY SHARES IN FINANCIAL YEAR 2005- 06, AT THE LOWEST PRICE AND SOLD THE SAME AT THE BE ST POSSIBLE SELLING PRICE AFTER CONVERSION INTO EQUITY SHARES, WHICH IS EVIDENT FROM THE FACT THAT INVESTMENT, WHICH WAS HE LD BY THE ASSESSEE TILL THE END OF ACCOUNTING PERIOD I.E. 31/ 03/2008 AND SOLD IN SUBSEQUENT YEAR. THE ASSESSEE RETAINED 47% OF THE TOTAL SHARES ACQUIRED DURING THE YEAR. SO FAR AS, M ANNER OF ACCOUNTING IS CONCERNED THE SHARES WERE SHOWN AS IN VESTMENT (PAGE-3 AND 5 OF THE PAPER BOOK) IN ITS FINANCIAL S TATEMENT. THE ASSESSEE MADE THE INVESTMENT THROUGH INTEREST F REE FUNDS AND NO INTEREST COST WAS INCURRED AS IS EVIDENT FRO M PROFIT & LOSS ACCOUNT. IF TOTALITY OF FACTS ARE ANALYZED, IT IS WELL SETT LED THAT TRUE NATURE OF TRANSACTION HAS TO BE DETERMINED BY CONSI DERING VARIOUS FACTORS. THE HONBLE HIGH COURTS AS WELL A S CBDT HAS LAID DOWN VARIOUS CRITERIA ON THE BASIS OF WHICH TR UE NATURE OF TRANSACTIONS COULD BE ASCERTAINED. HENCE THE NATURE OF TRANSACTION WOULD BE DEPENDED UPON THE FACTS PREVAI LING IN EACH CASE. THOUGH, THE PRACTICE ADOPTED IN PAST YEA RS MAY BE OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 9 A GUIDING FACTOR IN DETERMINING THE TRUE NATURE OF TRANSACTIONS, YET IT IS NOT NECESSARY THAT NATURE O F TRANSACTIONS SHALL ALWAYS REMAIN CONSTANT. ONE OF T HE MOST IMPORTANT CRITERIA IS THE INTENTION OF THE ASSESSEE , AT THE TIME OF PURCHASE OF SHARES. IF THE ASSESSEE HAD PURCHASE D THE SHARES AS A DEALER, THEN THE PROFIT SHOULD BE ASSES SED AS BUSINESS INCOME OF THE ASSESSEE. ON THE CONTRARY, I F THE INTENTION WAS TO HOLD THE SHARES AS INVESTMENT, THE N THE PROFIT SHALL BE ASSESSED AS CAPITAL GAIN. THE INTENTION OF THE ASSESSEE MAY BE ASCERTAINED BY HIS CONDUCT AND OTHER CRITERI A PRESCRIBED BY COURTS AND CBDT. AS EXPLAINED BY THE LD. COUNSEL FOR THE ASSESSEE THAT IN DIFFERENT ASSESSME NT YEARS, THE CLAIM OF THE ASSESSEE WAS ACCEPTED BY THE ASSES SING OFFICER AND FURTHER INTEREST FREE FUNDS WERE INVEST ED BY THE ASSESSEE FOR MAKING THE INVESTMENT, THEREFORE, CONS IDERING THE HOLDING PERIOD AND THE DIVIDEND INCOME, EARNED BY T HE ASSESSEE, THERE IS A MERIT IN THE CLAIM OF THE ASSE SSEE. IN SUCH A SITUATION, THE DECISION OF THE COORDINATE BENCH I N THE CASE OF SMT. RUPAL SUMEGH MODI VS ACIT (ITA NO.5758/MUM/201 3) ORDER DATED 28/10/2015 AND PRAFUL D. MODI (ITA NO.1334/MUM/2010) ORDER DATED 15/07/2011, SHRI SUME GH MODI (ITA NO.5599/MUM/2010) ORDER DATED 12/10/2011 , THE BENEFIT CAN BE GIVEN TO THE ASSESSEE. MORE SPECIFIC ALLY, WHEN THE DECLARATION OF THE ASSESSEE AS CAPITAL GAIN, AR ISING ON SALE OF SHARES HAS BEEN ACCEPTED IN DIFFERENT YEARS AS H AS BEEN DISCUSSED ABOVE. IT IS ALSO NOTED THAT ASSESSEE HAS NOT USED INTEREST BEARING BORROWED FUNDS FOR THE PURPOSE OF PURCHASING SHARES. EVEN, THE DECLARATION BY THE ASSESSEE, ON SALE OF OCCASION IMPEX PVT. LTD. ITA NO.4867/MUM/2012 10 SHARES AS LOSS HAS BEEN ACCEPTED BY THE ASSESSING O FFICER, UNDER THESE FACTS, THERE IS NO JUSTIFICATION IN TRE ATING THE ASSESSEE AS A TRADER IN SHARES. SO FAR AS THE OBSER VATION IN THE IMPUGNED ORDER ON ACCOUNT OF EXCESS CLAIM OF PURCHA SE PRICE OF SHARES SOLD IS CONCERNED, IT IS THE ASSESSEE, WH O HAS TO WATCH HIS INTEREST AND IN WHAT MANNER, THEREFORE, T HE APPEAL OF THE ASSESSEE IS ALLOWED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE -OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 02/11/2015. SD/- SD/- ( ASHWANI TANEJA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ' # MUMBAI; ' DATED : 20/11/2015 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / ' 0 ( )* ) / THE CIT, MUMBAI. 4. / / ' 0 / CIT(A)- , MUMBAI 5. 2!3 - , / )*% ) 4 , ' # / DR, ITAT, MUMBAI 6. 5 6# / GUARD FILE. / BY ORDER, .2* - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ' # / ITAT, MUMBAI.