ACIT 2(1), MUMBAI V. MOHAN VALLABHDAS BHATIA, MUMBAI

ITA 5407/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79468 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 01-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH SANGHAVI
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 5407/MUM/2010 ASSESSMENT YEAR: 2007-08 DCIT-2(1) AAYAKAR BHAVAN R.NO. 575, 5 TH FLOOR, M.K. ROAD MUMBAI 400 020 VS. SHRI MOHAN VALLABHDAS BHATIA 13, PAPER BOX HOUSE, MAHAKALI CAVES. ROAD, ANDHERI (E), MUMBAI- 400 093 (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :- AAAPB 7932 Q ASSESSEE BY : SHRI MANISH SANGHAVI REVENUE BY : SMT. AMRITA SINGH DATE OF HEARING : 14.07.2014 DATE OF PRONOUNCEMENT : 18.07.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD.CIT(A)-4, MUMBAI DATED 16.04.2010 FOR THE ASSESS MENT YEAR 2007-08. 2. IN THIS APPEAL, THE REVENUE HAS AGITATED THE DEC ISION OF THE LD.CIT(A) IN HOLDING THAT THE TRANSACTION INVOLVING PURCHASE AND SALE OF SHARES DO NOT CONSTITUTE TRADING ON REVENUE ACCOUNT BUT ARE TRANSACTIONS ON CAPITAL ACCOUNT AND THEREBY DETERMINING THE INCOME OF RS.59,27,883/- FROM PURCH ASE AND SALE OF SHARES AS CAPITAL GAIN AGAINST THE SAME ASSESSED BY THE AO AS BUSINESS INCOME. 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD, IT IS PERTINENT TO MENTION THAT THE ASSESSEE HAS CLAIMED THAT HE HAS EARNED A SHORT TERM CAPITAL GAIN ON MUTUAL FUNDS OF RS.22,40,479/-, AND SHORT TERM CAPITAL GAIN ON PMS OF RS.90,06,411/- AND A SHORT TERM CAPITAL LOSS ON OWN PORTFOLIO OF RS.8,38,049/- TOTALLY AMOUNTING TO A NET SHORT TERM CAPITAL GAIN OF RS.59,27,883/-. THE AO HAS ASSESSED THE SAID INCOME AS BUSINESS INCOME AGAINST THE ASSESSEE CLAIMING THE ITA NO. 5407/MUM/2010 SHRI MOHAN VALLABHDAS BHATIA ASSESSMENT YEAR: 2007-08 2 SAME AS CAPITAL GAIN. ON APPEAL, THE LD.CIT(A) BY F OLLOWING HIS OWN ORDER FOR THE ASSESSMENT YEAR 2005-06 DIRECTED THE AO TO ALLOW TH E CLAIM BY THE ASSESSEE. IT IS NOTED THAT THE SAID ORDER OF THE LD.CIT(A) FOR THE AY 2005-06 IS UPHELD BY THE TRIBUNAL IN ITA NO. 3604/MUM/2009 AGAINST WHICH THE REVENUE HAS NOT PREFERRED ANY FURTHER APPEAL TO THE HIGH COURT. THEREFORE, WE DO NOT FIND ANY JUSTIFIABLE REASON TO INTERFERE WITH THE IMPUGNED DECISION OF T HE LD.CIT(A) AND THUS THE SAME IS UPHELD. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF JULY 2014. SD/- SD/- (SANJAY ARORA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 18.07.2014. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.