M/s. DMA Investment Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 5688/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8311 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 22-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL CHANDER SHARMA
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Business income; Search and seizure
• Section: 143(3); 142(1); 153A; 14A; 148; 132

Judgement Text

ITA NOS. 5688-5691 & 6326-6329/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NOS. 5688-5691/DEL/2013 A.YRS. : 2006-07 2009-10 M/S DMA INVESTMENT PVT. LTD. 910, ANSAL BHAWAN, K.G. MARG, NEW DELHI 110 001 (PAN: AABCD5111H) VS. DCIT, CENTRAL CIRCLE-14, NEW DELHI (APPELLANT) (RESPONDENT) AND I.T.A. NOS. 6326-6329/DEL/2013 A.YRS. : 2006-07 2009-10 ACIT, CENTRAL CIRCLE-14, ROOM NO. 320, 3 RD FLOOR, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI VS. DMA INVESTMENT PVT. LTD. 910, ANSAL BHAWAN, K.G. MARG, NEW DELHI 110 001 (PAN: AABCD5111H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. DR. RAKESH GUPTA, ADV. DEPARTMENT BY : SH. SUNIL CHANDER SHARMA, CIT(DR) DATE OF HEARING : 21-03-2016 DATE OF ORDER : 05-04-2016 ORDER PER H.S. SIDHU : JM THESE ARE THE CROSS APPEALS BY THE ASSESSEE AND RE VENUE EMANATING FROM THE COMMON ORDER OF THE LD. CIT(A) DATED 05.7. 2013 RELEVANT TO ITA NOS. 5688-5691 & 6326-6329/DEL/2013 2 ASSESSMENT YEAR 2006-07 TO 2009-10. SINCE THE ISSU ES INVOLVED IN THESE CROSS APPEALS ARE COMMON AND IDENTICAL, HENCE, THESE APPE ALS WERE HEARD TOGETHER AND ARE BEING DISPOSED BY THIS COMMON ORDER FOR THE SA KE OF CONVENIENCE, BY DEALING WITH ASSESSEES APPEAL NO. 5688/DEL/2013 (A Y 2006-07) AND REVENUES APPEAL NO. 6326/DEL/2013 (AY 2006-07). 2. THE COMMON GROUNDS RAISED IN ALL THE 4 ASSESSEE S APPEALS READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) ERRED IN UPHOLDING THE VALIDITY OF THE ORDER PASSED BY THE AO U/S. 153A ON 29.10.2002. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN HOLDING THAT GAIN/ LOSS ON ACCOUNT OF SHAR E TRANSACTION WHERE THE HOLDING PERIOD IS LESS THAN 30 DAYS CONST ITUTES BUSINESS INCOME / LOSS, AS AGAINST THE CAPITAL GAIN / LOSS C LAIMED BY THE APPELLANT. 3. THE LD. CIT(A) FURTHER ERRED IN NOT FOLLOWING TH E ORDER OF HIS PREDECESSOR FOR ASSESSMENT YEAR 2008-09, DATED 1.6. 2012, WHEREIN THE ISSUE HAD BEEN DECIDED IN FAVOR OF THE APPELLAN T. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF (RS. 20,530/ - AY 2006-07; ITA NOS. 5688-5691 & 6326-6329/DEL/2013 3 RS. 83,609/- AY 2007-08; 43,312/- AY 2008-09 & RS.5 2.814/- AY 2009-10), U/S. 14A IN ASSESSMENT OF THE I.T. ACT, 1 961. 5. THE APPELLANT MAY KINDLY BE ALLOWED TO RAISE ANY ADDITIONAL GROUND IN THE COURSE OF HEARING OF THE APPEAL. 3. THE COMMON GROUNDS RAISED IN ALL THE 4 REVENUES APPEALS READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO TREAT THE GAIN ON SHARES AS SHORT TERM CAPITAL GAIN, IF THE PERIOD OF HOLDING THE SHA RES BY THE ASSESSEE COMPANY WAS MORE THAN 30 DAYS AND GAIN ON SHARES AS BUSINESS INCOME, IF THE HOLDING PERIOD IS UPTO 30 D AYS. 2. THE ORDER OF CIT(A) IS ERRONEOUS AND IS NOT TENA BLE ON FACTS IN THE LAW. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HE ARING OF THE APPEAL. ASSESSEES APPEAL NO. 5688/DEL/2013 - ASSESSMENT Y EAR 2006-07 4. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AN D SEIZURE OPERATION WAS CARRIED OUT U/S. 132 OF THE INCOME TAX ACT, 1961 O N 22.03.2011 IN THE CASE OF ITA NOS. 5688-5691 & 6326-6329/DEL/2013 4 AMTEK GROUP OF CASES. THE ASSESSEE COMPANY I.E. M /S DMA INVESTMENTS PVT. LTD. WAS ALSO COVERED U/S. 132(1) OF THE INCOME TAX ACT, 1961 WHICH IS A GROUP COMPANY OF AMTEK GROUP. SUBSEQUENTLY, THE CASE WAS CENTRATLIZED WITH CENTRAL CIRCLE-14, NEW DELHI. ACCORDINGLY, NOTICE U /S. 153A OF THE INCOME TAX ACT WAS ISSUED TO THE ASSESSEE ON 26.9.2011. IN RES PONSE TO THE SAID NOTICE, RETURN DECLARING AN INCOME NIL WAS FILED ON 9.11.20 11. NOTICES U/S. 143(2) AND 142(1) OF INCOME TAX ACT, 1961 WERE ISSUED ALONGWIT H A QUESTIONNAIRE DATED 16.2.2012 AND CASE WAS FIXED FOR HEARING ON 29.2.20 12. IN RESPONSE TO VARIOUS STATUTORY NOTICES, NECESSARY DETAILS WERE FILED BY THE ASSESSEES AUTHORISED REPRESENTATIVE FROM TIME TO TIME. THEREAFTER, THE A O COMPLETED THE ASSESSMENT AT RS. 50,000/- FOR MAKING THE DISALLOWANCE U/S. 14 A OF THE I.T. ACT, 1961 VIDE ORDER DATED 29.10.2012 PASSED U/S. 153A/143(3) OF T HE I.T. ACT, 1961. 5. AGAINST THE AFORESAID ASSESSMENT ORDER DATED 29 .10.2012, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 05.7.2013 HAS PARTLY ALLOWED THE APPEAL OF THE ASSE SEEE. 6. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. AT THE THRESHOLD, LD. COUNSEL OF THE ASSESSEE ST ATED THAT THE ISSUE RAISED VIDE GROUND NO. 1 RELATING TO UPHOLDING THE VALIDI TY OF THE ORDER OF ASSESSMENT PASSED U/S. 153A ON 29.10.2012, IS SQUARELY COVERED IN FAVOR OF THE ASSESSEE BY THE DECISION DATED 28.8.2015 OF THE HONBLE DELHI H IGH COURT PASSED IN THE CASE ITA NOS. 5688-5691 & 6326-6329/DEL/2013 5 CIT(CENTRAL)-III VS. KABUL CHAWLA IN ITA NO. 707, 7 09, 713/DEL/2014 WHEREIN THE HONBLE HIGH COURT HAS HELD THAT IF THE ADDITIO NS ARE MADE, BUT NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING SEARCH O PERATION, THEN THESE ADDITIONS ARE NOT SUSTAINABLE IN THE EYES OF LAW. HE FURTHER STATED THAT THE ADDITIONS HAVE NO RELATION WITH ANY INCRIMINATING MATERIAL FOUND AND UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH AND AS SUCH ARE BAD IN LAW BEING BEYOND THE SCOPE OF JURISDICTI ON U/S. 153A OF THE I.T. ACT. IN ORDER TO SUPPORT HIS CASE, LD. COUNSEL OF THE ASSESSEE DRAW OUR ATTENTION TOWARDS THE ASSESSMENT ORDER PAGES 1, 2 & 7 AND THE IMPUGNED ORDER OF THE LD. CIT(A) PAGE NO. 1 & 2. HE STATED THAT DURING THE SEARCH AND SEIZURE OPERATION, NO DOCUMENTARY EVIDENCE HAS BEEN FOUND B Y THE INVESTIGATION WING OF THE DEPARTMENT ON THE ISSUE IN DISPUTE. THE SE ARCH AND SEIZURE OPERATION U/S. 132 OF THE I.T. ACT WAS CONDUCTED BY THE INVES TIGATION WING OF THE DEPARTMENT ON 22.3.2011 IN THE CASE OF AMTEK GROUP OF CASES AND THE ASSESSE WAS ALSO COVERED UNDER THE SEARCH WHICH IS A GROUP COMPANY OF AMTEK GROUP. HE FURTHER STATED THAT DURING THE YEAR UNDER CONSID ERATION THE COMPANY HAS NOT CONDUCTED ANY BUSINESS IN REAL ESTATE, BUT ENGAGED IN SALE / PURCHASE OF SHARES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO FOUND THAT ASSESSEE HAS MADE THE INVESTMENT OF RS. 3,23,05,820/- IN SHARES AND HAS EARNED DIVIDEND INCOME OF RS. 7,29,200/- ON ACCOUNT OF INVESTMENT A ND HE APPLIED THE PROVISIONS OF SECTION 14A OF THE ACT WHICH IS NOT BASED ON THE BASIS OF THE INCRIMINATING ITA NOS. 5688-5691 & 6326-6329/DEL/2013 6 MATERIAL FOUND DURING THE SEARCH OPERATION. HE FUR THER DRAW OUR ATTENTION TOWARDS THE IMPUGNED ORDER OF THE LD. CIT(A) VIDE P ARA NO. 4.1 WHICH CLEARLY STATES THAT AO HAD NOT FOUND ANY INCRIMINATING MATE RIAL IN THE COURSE OF SEARCH AND AS SUCH ERRED IN INITIATING THE ASSESSMENT PR OCEEDINGS U/S. 153A OF THE ACT. HE FINALLY STATED THAT THE ADDITIONS IN DISPU TE HAS BEEN MADE WITHOUT ANY INCRIMINATING MATERIAL, HENCE, THIS ISSUE IS SQUARE LY COVERED BY THE DECISION DATED 28.8.2015 OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) AND DRAW OUR ATTENTION TOWARDS THE P ARA 17 OF THE SAID JUDGMENT WHEREIN DECISION IN THE CASE OF CIT VS. ANIL KUMAR BHATIA HAS ALSO BEEN DISCUSSED. HE ALSO DRAW OUR ATTENTION TOWARDS THE ITAT, C BENCH DECISION IN THE CASE OF SMT. RASHMI WADHWA VS. DCIT IN ITA NO. 5184/DEL/2014 (AY 2005-06) WHEREIN THE DECISION IN THE CASE OF CIT VS . KABUL CHAWLA (SUPRA) WAS FOLLOWED. 7.1 AT THE TIME OF HEARING, LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW AND STATED THAT THE PROVISION OF SECTION 153A HAS RIGHTLY BEEN APPLIED IN THE CASE OF THE ASSESSEE ON THE MATERIAL AVAILABLE WITH THEM AND FURTHER STATED THAT THE CASE OF THE ASSESSEE IS COVERED AGAINST TH E ASSESSEE BY THE DECISION DATED 23.5.2007 OF THE HONBLE SUPREME COURT OF IN DIA IN THE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS PVT. LTD. IN APPEAL (CIVIL) NO. 2830 OF 2007 REPORTED IN 291 ITR 500 (SC). HE FURTHER STATED THA T IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE I.T. ACT ITA NOS. 5688-5691 & 6326-6329/DEL/2013 7 AND NOT UNDER SECTION 143(1) OF THE I.T. ACT, BECAU SE ON THE DATE OF SEARCH THE SAID ASSESSMENT HAS ALREADY BEEN STOOD COMPLETED. 8. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE REV ENUE AUTHORITIES. WE FIND THAT THE CASE LAW VIZ. ACIT VS. RAJESH JHAVERI (SUPRA) C ITED BY THE LD. DR IS DISTINGUISHED FROM THE FACTS OF THE CASE IN HAND, BECAUSE IN THE PRESENT CASE THE ADDITION WAS MADE, WITHOUT INCRIMINATING MATERIAL F OUND DURING THE SEARCH AND ASSESSMENT WAS COMPLETED U/S. 153/143(3) OF THE ACT . HOWEVER, IN THE CASE OF ACIT VS. RAJESH JHAVERI (SUPRA), CITED BY THE LD. D R, THE NOTICE WAS SERVED U/S. 148 OF THE INCOME TAX ACT AND ASSESSMENT WAS COMPLETED ACCORDINGLY. ADMITTEDLY IN THE PRESENT CASE, NO INCRIMINATING MA TERIAL WAS FOUND OR SEIZED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION U /S. 132 OF THE ACT IN THE CASE OF THE ASSESSEE. UNDER THE CIRCUMSTANCES, WE FIN D THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESEE AND AGAINST THE REVENUE BY TH E DECISION DATED 28.8.2015 OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA PASSED IN ITA NO. 707, 709 AND 713/2014 WHEREIN THE HONBL E HIGH COURT HAS HELD HAS UNDER:- 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLA INED IN THE AFOREMENTIONED ITA NOS. 707, 709 AND 713 OF 2014 OF DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF T HE ACT, NOTICE UNDER SECTION 153 A (1) WILL HAVE TO BE MANDATORILY ISSUE D TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. ITA NOS. 5688-5691 & 6326-6329/DEL/2013 8 II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DA TE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEAR CH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INC OME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORD ERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE AS SESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS IN WHICH BOTH THE D ISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT A DDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAIL ABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RE LEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ITA NOS. 707 , 709 AND 713 OF 2014 OF ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONL Y ON THE BASIS OF SEIZED MATERIAL. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REAS SESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATAB LE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEAR CH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERN ED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH ITA NOS. 5688-5691 & 6326-6329/DEL/2013 9 AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND A NY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WI TH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON T HE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL A SSESSMENT. 38. THE PRESENT APPEALS CONCERN AYS, 2002-03, 2005 -06 AND 2006-07.ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURIN G THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREAD Y ASSESSED. 9. RESPECTFULLY FOLLOWING THE PRECEDENT OF THE HON BLE JURISDICTIONAL HIGH COURT AS AFORESAID, WE ALLOW THE APPEAL OF THE ASSE SSEE, BECAUSE AO HAS COMPLETED THE ASSESSMENT AND MADE THE ADDITION IN D ISPUTE WITHOUT ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH AND SEIZURE OPERATION AND THE ADDITION IN THIS CASE WAS PURELY BASED ON THE MAT ERIAL ALREADY AVAILABLE ON RECORD. HENCE, THE ADDITION IN THE CASE IS DELETED AND THE GROUND RAISED BY THE ASSESSEE IN THE APPEAL IS ALLOWED. 10. FOLLOWING THE CONSISTENT VIEW IN ASSESSMENT YEA R 2006-07 IN APPEAL NO. 5688/DEL/2013, AS AFORESAID, THE OTHER APPEALS OF T HE ASSESSEE BEING ITA NO. 5689, 5690 & 5691/DEL/2013 (AYRS 2007-08, 2008-09 & 2009-10) STAND ALLOWED. 11. REVENUES APPEAL NO.6326/DEL/2013 - ASSESSMENT YE AR 2006-07 THE ONLY ISSUE RAISED IN THE APPEAL OF THE REVEN UE IS THAT LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO TREAT THE GAIN ON SHARES AS SHORT TERM CAPITAL ITA NOS. 5688-5691 & 6326-6329/DEL/2013 10 GAIN, IF THE PERIOD OF HOLDING THE SHARES BY THE A SSESSEE COMPANY WAS MORE THAN 30 DAYS AND GAIN ON SHARES AS BUSINESS INCOME, IF THE HOLDING PERIOD IS UPTO 30 DAYS. WE FIND THAT LD. CIT(A) HAS ADJUDI CATED THIS ISSUE AS UNDER:- I HAVE CONSIDERED THE ENTIRE FACTS OF THE CASE. IN FACT, I HAVE DECIDED THE APPEALS ON SIMILAR FACTS IN THE ASSOCIA TE CONCERN OF THE APPELLANT NAMELY M/S DREAMLAND BUILDTECH (P) LTD. FOR VARIOUS ASSESSMENT YEARS (NAMELY) RELYING ON THE DECISION OF CIT(A)-XIII, NEW DELHI, WHERE HE HAS HE LD THAT IF CAPITAL GAIN / LOSS ON ACCOUNT OF SHARE TRANSACTION SHOULD BE ASSESSED AS BUSINESS LOSS/INCOME, IF THE PERIOD OF HOLDING IS LESS THAN 30 DAYS. IN PRESENT CASE, ALSO THE FACTS ARE IDENTICAL WHERE THE SOURCE OF DEPLOYMENT OF FUND IS OWN AND H OLDING OF SHARES IS AS LESS THAN EVEN TWO DAYS. IN VIEW OF THE ABOVE FACTS, I RELY ON MY OWN DECISION IN THE CASE OF M/S DREAMLAND BUILDTECH (P) LTD. VIDE ORDER CITED SUPRA AND DIRECT THE AO TO TREAT THE CAPITAL GAIN/LOSS ARISIN G OUT OF SHARE TRANSACTION AS BUSINESS INCOME /LOSS ON ACCOU NT OF SHARE TRANSACTION WILL REMAIN SHORT / LOSS FOR VARI OUS ASSESSMENT YEARS WHERE THE HOLDING OF SHARES ARE L ESS THAN 30 DAYS. AS A RESULT, THIS GROUND OF APPEAL IS PAR TLY ALLOWED FOR VARIOUS ASSESSMENT YEARS. 12. AFTER GOING THROUGH THE AFORESAID FINDINGS OF THE LD. CIT(A), WE FIND THAT LD. CIT(A) HAS FOLLOWED HIS OWN ORDER PASSED IN THE CASE OF M/S DREAMLAND BUILDTECH (P) LTD. AND RIGHTLY DIRECTED T HE AO TO TREAT THE CAPITAL GAIN/LOSS ARISING OUT OF SHARE TRANSACTION AS BUSIN ESS INCOME /LOSS ON ACCOUNT OF SHARE TRANSACTION WILL REMAIN SHORT / LOSS FOR VARI OUS ASSESSMENT YEARS WHERE THE HOLDING OF SHARES ARE LESS THAN 30 DAYS AS A RESU LT, THIS GROUND OF APPEAL WAS PARTLY ALLOWED FOR VARIOUS ASSESSMENT YEARS. WE DO NOT FIND ANY FLAW OR ITA NOS. 5688-5691 & 6326-6329/DEL/2013 11 INFIRMITY TO TAKE A CONTRARY DECISION. ACCORDINGLY, LD. CIT(A)S ORDER IS UPHELD ON THIS ISSUE AND APPEAL FILED BY THE REVENUE STAN D DISMISSED. 13. FOLLOWING THE CONSISTENT VIEW IN ASSESSMENT YEA R 2006-07 IN REVENUES APPEAL NO. 6326/DEL/2013, AS AFORESAID, THE OTHER A PPEALS OF THE REVENUE BEING ITA NO. 6327, 6328 & 6329/DEL/2013 (AYRS 2007 -08, 2008-09 & 2009- 10) STAND DISMISSED. 14. IN THE RESULT, ALL THE 4 APPEALS FILED BY THE ASSESSEE STAND ALLOWED AND ALL THE 4 APPEALS FILED BY THE DEPARTMENT STAND DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/04/2016. SD/- SD/- [N.K. SAINI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 05/04/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES