A.C.I.T.-17(2), MUMBAI V. JANAK PAREKH, MUMBAI

ITA 5096/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71784 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: J
• Next Hearing Date: 04-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI
• Assessee Lawyers: GOVIND JHAVERI
• Keywords: Business expenditure

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL J JJ J BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . , . , ! ! ! ! '# '# '# '# BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI D. KARUNAKARA RAO D. KARUNAKARA RAO D. KARUNAKARA RAO D. KARUNAKARA RAO, AM , AM , AM , AM ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.5096/MUM/2012 5096/MUM/2012 5096/MUM/2012 5096/MUM/2012 ( $% $% $% $% & & & & / ASSESSMENT YEAR :2008-09) ACIT-17(2), R. NO. 217, 2 ND FLOOR, PIRAMAL CHAMBERS, MUMBAI % % % % / VS. SHRI JANAK PAREKH FLAT NO. 5, K. V. KAPOL NIVAS, SETH B. N. ROAD, MATUNGA, MUMBAI-400019 #' ! ./ ( ./ PAN/GIR NO. :AABPP5689B ( ') / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+') / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) $% $%$% $% ,- ,- ,- ,- . / . / . / . / /ASSESSEE BY : SHRI GOVIND JHAVERI # # # # . / . / . / . / / REVENUE BY : SHRI ASHOK SURI % % % % . .. . -! -! -! -! / DATE OF HEARING : 27 TH NOVEMBER 2013 01 0101 01& & & & . .. .-! -! -! -! /DATE OF PRONOUNCEMENT: 27 TH NOVEMBER 2013 '2 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 29.5.2012 OF COMMISSIONER OF INCOME TAX(APPEA LS) FOR THE ASSESSMENT YEAR 2008-09. 2. THE SOLITARY GROUND RAISED BY THE REVENUE IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THE GAIN O F ` 1,46,118 ARISING OUT OF PURCHASE AND SALE OF SHARES WITH HOLDING PERIOD OF LESS THAN 30 DAYS AS BUSINESS AND GAIN OF ` 37,92,690/- FOR REST OF THE SCRIPS WITH HOLDIN G PERIOD MORE THAN 30 DAYS AS STCG WITHOUT CONSIDERING THE DETAILED REASONING OF THE ASSESSING OFFICER WHICH C LEARLY ESTABLISHED THAT THE ASSESSEE WAS WORKING AS A TRAD ER AND NOT AS AN INVESTOR. ITA NO. 5096/M/2012 SHRI JANAK PAREKH 2 3. WE HAVE HEARD THE LD. D.R AS WELL AS LD. A.R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. DURING THE COURSE OF HEARING THE LD. A.R OF THE ASSESSEE HAS SUBMITTED THAT THE ASSE SSEE DOES NOT WANT TO CONTEST THE REVENUES APPEAL AND READY TO A CCEPT THE ASSESSMENT ORDER PROVIDED THE CONSEQUENTIAL DEDUCTI ON IN RESPECT OF SECURITIES TRANSACTION TAX (STT) U/S 88E, VALUAT ION OF STOCK AS PER THE POLICY/ACCOUNTING STANDARDS FOR VALUATION O F STOCK IN TRADE AND OTHER ALLOWABLE BUSINESS EXPENSES IF ANY BE CON SIDERED BY THE A.O. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CONC ESSION OF THE LD. A.R WE SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND RESTORED THE ORDER OF THE ASSESSING OFFICER WHEREBY THE SALE OF SHARES MUST BE TREATED AS BUSINESS TRANSACTION AND PROFIT ARSING FROM SALE OF SHARES SHALL BE ASSESSED AS BUSINESS P ROFIT AND NOT AS SHORT TERM CAPITAL GAIN. HOWEVER, THE SECURITIES TR ANSACTION TAX PAID BY THE ASSESSEE IS AN ALLOWABLE DEDUCTION U/S 88E WHILE COMPUTING THE BUSINESS PROFIT. THE A.O IS ACCORDING LY DIRECTED ALLOW THE SAME AFTER ASCERTAINING THE DETAILS OF PA YMENT AS WELL AS TO CONSIDER THE VALUATION OF STOCK-IN-TRADE AS URGE D BY THE ASSESSEE. ITA NO. 5096/M/2012 SHRI JANAK PAREKH 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING I.E. ON THIS 27 TH DAY OF NOVEMBER 2013 SD/- SD/- ( . ) ! '# (D. KARUNAKARA RAO) ACCOUNTANT MEMBER ( ) $ '# (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 27 TH NOVEMBER 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI