ACIT 15(1), MUMBAI V. DR. AMRITA P TALWAR, MUMBAI

ITA 5011/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2687 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 03-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVINDR SIN DHU
• Assessee Lawyers: S C TIWARI; RUTUJA PAWAR
• Keywords: Business income; Cost of acquisition

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) . . , , / I. T.A. NO .2355/MUM/2013 ( / ASSESSMENT YEAR : 2005 - 06 ) SMT.AMRITA PANKAJ TALWAR, FLAT NO.20, MATRUCHHAYA, 70, MARINE DRIVE, MUMBAI - 400020 / VS. ASSTT. COMMISSIONER OF INCOME (OSD), TAX 15(1), MUMBAI. ( / APPELLANT ) .. ( / RESPONDENT ) / I.T.A. NO .5959/MUM/2012 ( / ASSESSMENT YEAR : 2006 - 07 ) DR.AMRITA PANKAJ TALWAR, FLAT NO.20, MATRUCHHAYA, 70, MARINE DRIVE, MUMBAI - 400020 / VS. DY.COMMISSIONER OF INCOME TAX 15(1), MATRU MANDIR, MUMBA I - 400007 ( / APPELLANT ) .. ( / RESPONDENT ) / I.T.A. NO .6627/MUM/2012 ( / ASSESSMENT YEAR : 2006 - 07 ) ASSTT. COMMISSIONER OF INCOME TAX 15(1), ROOM NO.104, 1 ST FLOOR, MATRU MANDIR, TARDEO ROAD, GRANT ROAD( W) MUMBAI - 400007 / VS. SMT.AMRITA PANKAJ TALWAR, FLAT NO.20, MATRUCHHAYA, 70, MARINE DRIVE, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) / I.T.A. NO . 797 / MUM/20 1 1 ( / ASSESSMENT YEAR : 20 0 7 - 08 ) SMT. A MRITA PANKAJ TALWAR, FLAT NO.20, MATRUCHHAYA, 70, MARINE DRIVE, MUMBAI - 400020 / VS. DY.COMMISSIONER OF INCOME TAX 15(1), MATRU MANDIR, MUMBAI - 400007 ( / APPELLANT ) .. ( / RESPONDENT ) ITA NO. 797/M/2011 AND 6 APPEALS 2 / I.T.A. NO . 1256/ MUM/20 1 1 ( / ASSESSMENT YEAR : 20 0 7 - 0 8 ) ASSTT. COMMISSIONER OF INCOME TAX 15(1), ROOM NO.104, 1 ST FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI - 400007 / VS. SMT.AMRITA PANKAJ TALWAR, FLAT NO.20, MATRUCHHAYA, 70, MARINE DRIVE, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) / I.T.A. NO .5011/MUM/2013 ( / ASSESSMENT YEAR : 2007 - 08 ) ASSTT. COMMISSIONER OF INCOME TAX 15(1), ROOM NO.104, 1 ST FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI - 400007 / VS. SMT. (DR)AMRITA PANKAJ TALWAR, FLAT NO.20, MATRUCHHAYA, 70, MARINE DRIVE, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) / I.T.A. NO .539/MUM/2012 ( / ASSESSMENT YEAR : 2008 - 09 ) SMT.AMRITA PANKAJ TALWAR, C/O V J SHAH AND CO., 1 ST FLOOR, HIRA NIWAS, 46, MODY STREET, FORT, MUMBAI - 400001 / VS. ASSTT. COMMISSIONER OF INCOME TAX 15(1), MATRU MANDIR, MUMBAI - 400007 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN : AD LPT7551R / ASSESSEE BY S/SHRI S C TIWARI AND MS.RUTUJA PAWAR / REVENUE BY SHRI RAVINDR SINDHU / DATE OF HEARING : 2 7 .10 .2015 / DATE OF PRONOUNCE MENT : 4 . 11 .2015 ITA NO. 797/M/2011 AND 6 APPEALS 3 / O R D E R PER B ENCH : THE ASSESSEE HAS FILED APPEALS FOR ASSESSMENT YEARS 2005 - 06 TO 2008 - 09 AND THE REVENUE HAS FILED APPEALS FOR ASSESSMENT YEARS 2006 - 07 AND 2007 - 08 CHALLENGING THE APPELLATE ORDERS PASSED LD CIT(A) - 26 , MUMBAI AGAINST THE QUANTUM ASSESSMENT ORDERS OF RESPECTIVE YEARS. THE REVENUE HAS FILED APPEAL FOR ASSESSMENT YEAR 2007 - 08 CHALLENGING THE CANCELLATION OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT FOR THAT YEAR. ALL THESE APPEALS WERE HEARD TOGETHER AND H ENCE THEY ARE BEING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. 2. IN ALL THE APPEALS FILED BY THE ASSESSEE, THE COMMON ISSUE URGED RELATES TO THE ASSESSMENT OF SHORT TERM CAPITAL GAIN ARISING ON SALE OF SHARES AS BUSINESS INCOME OF T HE ASSESSEE. 3. IN THE QUANTUM APPEALS FILED BY THE REVENUE, THE COMMON ISSUE URGED IS AGAINST THE DECISION OF LD CIT(A) IN HOLDING THAT THE GAIN ARISING ON SALE OF SHARES HELD FOR MORE THAN 12 MONTHS IS ASSESSABLE AS LONG TERM CAPITAL GAIN INSTEAD OF BU SINESS INCOME. 4. IN THE APPEAL FILED BY THE REVENUE IN RESPECT OF PENALTY PROCEEDINGS, THE REVENUE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CANCELLING THE PENALTY LEVIED FOR AY 2007 - 08. 5. THE FACTS RELATING TO THE CASE ARE STATED IN BRIEF. TH E ASSESSEE IS AN INDIVIDUAL AND SHE FILED HER RETURN OF INCOME FOR AY 2006 - 07 DECLARING SHORT TERM CAPITAL GAIN OF RS.177.59 LAKHS AND LONG TERM CAPITAL GAIN OF RS.14.23 LAKHS, BOTH ARISING ON PURCHASE AND SALE OF SHARES. DURING THAT YEAR, SHE WAS A STUDE NT PURSUING A COURSE IN DERMATOLOGY, VENEROLOGY AND LEPROSY IN GOVERNMENT MEDICAL COLLEGE, PATIALA, PUNJAB. THE AO ITA NO. 797/M/2011 AND 6 APPEALS 4 NOTICED THAT THE VOLUME OF TRANSACTION WAS HIGH, I.E., PURCHASES WERE TO THE TUNE OF RS.417.49 LAKHS AND SALES WERE TO THE TUNE OF RS.759.80 LAKHS. THE TOTAL NUMBER OF SHARES DEALT BY HER STOOD AT 5.43 LAKHS. HE FURTHER NOTICED THAT HOLDING PERIOD IN RESPECT OF EIGHT SCRIPS WAS LESS THAN ONE MONTH. HENCE THE AO TOOK THE VIEW THAT THE ASSESSEE IS DEALING IN SHARES AS TRADER AND ACCORDINGLY AS SESSED BOTH LONG TERM CAPITAL GAINS AND SHORT TERM CAPITAL GAINS AS BUSINESS INCOME OF THE ASSESSEE. 6. IN ASSESSMENT YEAR 2005 - 06, THE ASSESSEE HAD DECLARED SHORT TERM CAPITAL GAIN ARISING ON SALE OF SHARES AT RS.41.35 LAKHS. IN VIEW OF THE DECISION TAKEN BY THE ASSESSING OFFICER IN AY 2006 - 07, HE REOPENED THE ASSESSMENT OF ASSESSMENT YEAR 2005 - 06 AND ASSESSED THE SHORT TERM CAPITAL GAIN AS BUSINESS INCOME OF THE ASSESSEE. 7. IN THE YEAR RELEVANT TO THE ASSESSMENT YEAR 2007 - 08, THE ASSESSEE HAD STAR TED HER PROFESSION. BESIDES PROFESSIONAL INCOME OF RS.57,477/ - , THE ASSESSEE ALSO DECLARED SHORT TERM CAPITAL GAIN OF RS.196.39 LAKHS AND LONG TERM CAPITAL GAIN OF RS.202.65 LAKHS, BOTH ARISING ON SALE OF SHARES. THE LONG TERM CAPITAL GAIN WAS CLAIMED AS EXEMPT U/S 10(34) OF THE ACT. BY THE TIME THE ASSESSMENT OF AY 2007 - 08 WAS TAKEN UP FOR SCRUTINY, THE APPEAL FILED BY THE ASSESSEE CHALLENGING THE ASSESSMENT ORDER OF AY 2006 - 07 HAD BEEN DISPOSED OF BY LD CIT(A) BY CONFIRMING THE ASSESSMENT OF SHORT TERM CAPITAL GAIN AS BUSINESS INCOME. HOWEVER, THE LD CIT(A) HAD DIRECTED THE AO TO ASSESS THE LONG TERM CAPITAL GAIN AS CAPITAL GAINS ONLY. HOWEVER, THE ASSESSING OFFICER CHOSE TO ASSESS BOTH SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAINS AS BUSINESS I NCOME OF THE ASSESSEE IN ASSESSMENT YEAR 2007 - 08. 8. IN THE YEAR RELEVANT TO THE ASSESSMENT YEAR 2008 - 09, THE ASSESSEE DECLARED PROFESSIONAL INCOME OF RS.2,07,230/ - , SHORT TERM CAPITAL GAIN OF RS.275.00 LAKHS. FOLLOWING THE ASSESSMENT ORDER PASSED FOR AY 2007 - 08, ITA NO. 797/M/2011 AND 6 APPEALS 5 THE ASSESSING OFFICER ASSESSED THE SHORT TERM CAPITAL GAINS AS BUSINESS INCOME OF THE ASSESSEE. 9. IN THE APPEALS FILED BY THE ASSESSEE FOR ASSESSMENT YEARS 2006 - 07 AND 2007 - 08, THE LD CIT(A) HELD THAT THE LONG TERM CAPITAL GAINS ARISING ON SAL E OF SHARES IS ASSESSABLE AS CAPITAL GAINS ONLY. THE REVENUE IS AGGRIEVED BY THE SAID DECISION OF LD CIT(A) IN BOTH THE ABOVE SAID YEARS. IN ALL THE YEARS, THE LD CIT(A) UPHELD THE ACTION OF THE AO IN ASSESSING THE SHORT TERM CAPITAL GAIN AS BUSINESS INC OME OF THE ASSESSEE. HENCE THE ASSESSEE HAS FILED APPEALS FOR ASSESSMENT YEAR 2005 - 06 TO 2008 - 09 CHALLENGING THE SAID DECISION OF LD CIT(A). 10. THUS, IT CAN BE NOTICED THAT THE ASSESSMENT ORDER AND APPELLATE ORDER PASSED FOR ASSESSMENT YEAR 2006 - 07 HA VE BEEN FOLLOWED IN OTHER YEARS. 11. THE LD A.R SUBMITTED THAT THE ASSESSEE IS A DOCTOR BY PROFESSION AND SHE HAS PURCHASED THE SHARES TO HOLD IT AS INVESTMENTS ONLY. THE SAID INTENTION IS REVEALED BY THE FACT THAT SHE HAS HELD MOST OF THE SHARES ON LO NG TERM AND HAS DECLARED LONG TERM CAPITAL GAINS THEREON. EVEN THE SHARES, ON WHICH SHORT TERM CAPITAL GAIN WAS DECLARED, HAVE BEEN HELD BY THE ASSESSEE FOR A REASONABLE PERIOD. THE ASSESSEE HAS USED HER OWN FUNDS AND INTEREST FREE FUNDS FOR MAKING INVES TMENTS AND FURTHER THE SHARES HAVE BEEN SHOWN AS INVESTMENTS ONLY IN HER BOOKS OF ACCOUNT. FURTHER THE SHARES HAVE BEEN SHOWN AT PURCHASE COST ONLY IN THE BALANCE SHEET. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT INDULGED IN REPETITIVE TRANSACTIONS B ARRING ONE OR TWO EXCEPTIONS. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS DEALT IN ONLY FEW SCRIPS AND SINCE THE ASSESSEE HAD PURCHASED SHARES IN HIGH QUANTITY, THE VOLUME APPEARED TO BE HIGH. ITA NO. 797/M/2011 AND 6 APPEALS 6 12. HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS CHOSEN TO ASSESS THE GAINS ARISING ON SALE OF SHARES AS BUSINESS INCOME ONLY BY CONSIDERING THE GAINS DECLARED BY THE ASSESSEE WITHOUT MAKING A PROPER CASE TO SUPPORT HIS VIEW. HE SUBMITTED THAT THE ASSESSING OFFICER, AFTER HOLDING THE ACTIVITY AS BUSINESS ACTI VITY, DID NOT PREPARE ANY PROFIT AND LOSS ACCOUNT, DID NOT VALUE THE STOCK. HE FURTHER SUBMITTED THAT THE LD CIT(A) WAS FAIR ENOUGH TO HOLD THAT THE LONG TERM CAPITAL GAINS IS ASSESSABLE UNDER THE HEAD CAPITAL GAINS ONLY. HOWEVER, THE LD CIT(A) WAS ALSO PERSUADED BY THE VIEW TAKEN BY THE ASSESSING OFFICER IN RESPECT OF SHORT TERM CAPITAL GAINS AND ACCORDINGLY UPHELD THE VIEW OF THE AO IN RESPECT OF SHORT TERM CAPITAL GAIN, WHICH IS NOT JUSTIFIED. HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS ACCEPTE D THE LOSS ARISING ON SALE OF SHARES AS SHORT TERM CAPITAL LOSS IN ASSESSMENT YEAR 2009 - 10. HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER DID NOT CONSIDER VARIOUS CRITERIAS IN FAVOUR OF THE ASSESSEE. 13. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE FREQUENCY AND VOLUME OF SHARE TRANSACTIONS WERE VERY HIGH AND THE ASSESSEE HAS HELD THE SHARES FOR A SHORT PERIOD ONLY IN MANY CASES. HENCE THE INTENTION OF THE ASSESSEE WAS TO DEAL IN SHARES AS TRADER ONLY. ACCORDINGLY HE SUBMITTED THAT BOTH SHORT TERM CAPITAL GAINS AND LONG TERM CAPITAL GAINS SHOULD BE ASSESSED AS BUSINESS INCOME OF THE ASSESSEE. THE LD D.R PLACED HIS STRONG RELIANCE ON THE ORDERS PASSED BY THE ASSESSING OFFICER. 14. WE HEARD THE PARTIES AND PERUSED THE RECORD. IT IS WELL SETTLED PROPOSITION THAT THE QUESTION AS TO WHETHER THE GAINS ARISING ON SALE OF SHARES CONSTITUTE BUSINESS INCOME OR CAPITAL GAINS HAS TO BE DECIDED ON THE BASIS OF VARIOUS CRITERIA, WHICH HAVE BEEN GIVEN AS ILLUSTRATION BY THE COURTS AND ALSO BY CBDT IN ITS CIRC ULAR. SOME OF THE MAIN CRITERIAS ARE THE INTENTION OF THE PARTY AT THE TIME OF PURCHASING OF SHARES, HIS CONDUCT THEREAFTER, THE MANNER OF FUNDING, HOLDING PERIOD OF SHARES, DIVIDEND ITA NO. 797/M/2011 AND 6 APPEALS 7 RECEIVED, OTHER ACTIVITIES OF THE ASSESSEE ETC. ONE HAS TO EXAMINE VARI OUS FACTORS AND SHOULD TAKE A HOLISTIC VIEW OF THE MATTER. CONSIDERING THE VARIOUS FACTORS, WE SHALL EXAMINE THE FACTS PREVAILING IN THE INSTANT CASE. 15. WE HAVE EARLIER NOTICED THAT THE ASSESSEE IS A MEDICAL DOCTOR BY PROFESSION SPECIALIZING IN DERMA TOLOGY . HENCE IT CANNOT BE CONSIDERED THAT HER MAIN ACTIVITY IS DEALING IN SHARES. NEXT WE HAVE EXAMINED THE BALANCE SHEET OF THE ASSESSEE FOR ALL THE YEARS UNDER CONSIDERATION. WE NOTICE THAT THE ASSESSEE HAS USED HER CAPITAL AND ALSO INTEREST FREE FUN DS OBTAINED FROM HER FATHER FOR PURCHASING THE SHARES, I.E., THE ASSESSEE HAS NOT BORROWED INTEREST BEARING FUNDS FOR PURCHASING SHARES. WE FURTHER NOTICE THAT THE SHARES HAVE BEEN SHOWN AS INVESTMENTS IN THE BALANCE SHEET. THE FALL, IF ANY, IN THE VAL UE OF SHARES HAS NOT BEEN RECOGNIZED . FURTHER, THE PROFIT OR LOSS ARISING ON INTRA DAY TRANSACTIONS HAVE BEEN DECLARED AS SPECULATION PROFIT. THE ASSESSEE HAS TAKEN DELIVERY OF ALL SHARES. 16. WE NOTICE THAT THE NUMBER OF SCRIPS DEALT BY THE ASSESSEE WAS AROUND 26 IN ALL THE YEARS UNDER CONSIDERATION. THE ASSESSEE IS SEEN TO HAVE PURCHASED SHARES IN HUGE QUANTITIES AND HENCE THE VOLUME OF THE PURCHASE AND SALE TRANSACTIONS LOOKED HIGH. HOWEVER, THE FREQUENCY OF TRANSACTIONS CANNOT BE CONSIDERED TO B E VERY FREQUENT, SINCE THE ASSESSEE HAS HELD MANY SHARES FOR MORE THAN ONE YEAR AND HAS DECLARED LONG TERM CAPITAL GAINS THEREON. IN RESPECT OF SHORT TERM CAPITAL GAINS, WE NOTICE THAT THE ASSESSEE HAS GENERALLY HELD THE SHARES FOR MORE THAN A MONTH, SOME TIMES FOR MORE THAN SIX MONTHS. THERE ARE FEW INSTANCES, WHERE THE ASSESSEE HAS HELD THE SHARES FOR A WEEK ONLY, BUT OTHERWISE THE SHARES HAVE BEEN HELD FOR A REASONABLE PERIOD. WE NOTICE THAT THE ASSESSEE HAS DECLARED DIVIDEND INCOME IN ALL THE YEARS E XCEPT AY 2005 - 06. WE FURTHER NOTICE THAT THERE ARE ONLY ONE OR TWO CASES OF REPETITIVE TRANSACTIONS AND HENCE GENERALLY THE SHARES PURCHASED BY THE SHARES HAVE BEEN SOLD AFTER ITA NO. 797/M/2011 AND 6 APPEALS 8 HOLDING THE SAME FOR A REASONABLE PERIOD AND REPURCHASE OF SAME SHARES ARE VERY MINIMAL. 17. THE ASSESSEE HAS NOT PREPARED ANY PROFIT AND LOSS ACCOUNT AND ALL HER REVENUE TRANSACTIONS HAVE BEEN ROUTED THROUGH HER CAPITAL ACCOUNT. A PERUSAL OF THE SAME SHOWS THAT THE ASSESSEE DID NOT EMPLOY ANY STAFF OR ESTABLISHED ANY SET UP FOR C ARRYING OUT THE ACTIVITY OF PURCHASE AND SALE OF SHARES. 18. WE HAVE EARLIER NOTICED THAT THE DECISION TAKEN BY THE ASSESSING OFFICE IN AY 2006 - 07 WAS FOLLOWED IN OTHER YEARS. IN ASSESSMENT YEAR, THE ASSESSING OFFICER HAS CONSIDERED FOLLOWING POINTS T O HOLD THAT THE ASSESSEE HAS DEALT IN THE SHARES AS A TRADER: - (A) THE HOLDING PERIOD IN MAJORITY OF SHARES WAS LESS THAN A MONTH. (B) VOLUME OF TRANSACTIONS IS HIGH. HOWEVER A CRITICAL ANALYSIS OF THE TRANSACTIONS OF THE ASSESSEE WO ULD SHOW THAT THE ASSESSEE HAS DEALT WITH 24 SCRIPS, 27 SCRIPS, 26 SCRIPS AND 17 SCRIPS RESPECTIVELY IN THE YEARS RELEVANT TO THE ASSESSMENT YEARS 2005 - 06, 2006 - 07, 2008 - 09 AND 2009 - 10. WE HAVE EARLIER NOTICED THAT THE ASSESSEE HAS PURCHASED EACH SHARES I N HIGH QUANTITIES AND HENCE THE VOLUME OF TRANSACTIONS WAS SEEN AT HIGHER FIGURE. WITH REGARD TO HOLDING PERIOD, WE HAVE SEEN THAT THE ASSESSEE HAS HELD SHARES IN VARYING PERIODS RANGING FROM ONE WEEK TO NINE MONTHS. HENCE THE AVERAGE HOLDING PERIOD WAS REAS ONABLY GOOD. THE REPETITION OF TRANSACTIONS WERE VERY MINIMAL, I.E, UPTO A MAXIMUM OF FOUR TRANSACTIONS ONLY. THE ASSESSEE HAS NOT BORROWED FUNDS FOR PURCHASING THE SHARES. THE ASSESSEE HAS HELD MAJOR SHARES FOR MORE THAN ONE YEAR AND HAS DECLARED LONG TERM CAPITAL GAINS. WE NOTICE THAT THE ASSESSING OFFICER HAS IGNORED ALL OTHER FACTORS, WHICH ARE IN FAVOUR OF THE ASSESSEE AND HAS DECIDED THE ISSUE AGAINST THE ASSESSEE BY CONSIDERING ONLY TWO FACTORS. WE HAVE SEEN THAT EVEN THE ITA NO. 797/M/2011 AND 6 APPEALS 9 TWO FACTORS THAT WERE C ONSIDERED BY THE ASSESSING OFFICER WORKS OUT IN FAVOUR OF THE ASSESSEE ONLY . HENCE, IN OUR VIEW, THE DECISION TAKEN BY THE ASSESSING OFFICER IN AY 2006 - 07 IS NOT CORRECT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND HENCE THE ASSESSMENT ORDERS PASSED I N OTHER YEARS BY FOLLOWING THE DECISION RENDERED IN AY 2006 - 07 WOULD CONSEQUENTLY RENDERED INCORRECT. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE CONTENTIONS OF LD A.R THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ASSESSING T HE GAINS ARISING ON SALE OF SHARES AS BUSINESS INCOME OF THE ASSESSEE. 19. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN DIRECTING TO ASSESS THE LONG TERM CAPITAL GAINS UNDER THE HEAD CAPITAL GAINS ONLY. IN RESPECT OF SHORT TERM CAPITAL GAINS, WE SET ASIDE HIS ORDER FOR THE REASONS DISCUSSED IN THE PREVIOUS PARAGRAPHS AND DIRECT THE ASSESSING OFFICER TO ASSESS THE SAME UNDER THE HEAD CAPITAL GAINS ONLY FOR ALL THE YEARS UNDER CONSIDERATION. 20. IN VIEW OF O UR DECISION STATED ABOVE FOR ASSESSMENT YEAR 2007 - 08, THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER WILL NOT SURVIVE. ACCORDINGLY THE APPEAL FILED BY THE REVENUE IS DISMISSED. 21. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED AND ALL THE APPEALS OF THE REVENUE ARE DISMISSED. P RONOUNCED ACCORDINGLY IN THE OPEN COURT ON 4TH NOV., 2015 . 4 TH NOV 2015 SD SD ( / SANJAY GARG ) ( . . / B.R. BASKARAN) / JUDICIAL M EMBER / ACCOUNTANT MEMBER MUMBAI: 4TH NOV , 2015 . . ./ SRL , SR. PS ITA NO. 797/M/2011 AND 6 APPEALS 10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / T HE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI