ACIT 9(3), MUMBAI V. VIJAY BIYANI, MUMBAI

ITA 5769/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8811 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 17-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 12-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJARSHI DWIWEDY
• Assessee Lawyers: SANJIV M SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI I.P.BANSAL,JUDICIAL MEMBER & SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 5769/MUM/2011(A.Y. 2008-09) THE DCIT, CIR. 9(3), 2 ND FLOOR, ROOM NO.229, AAYKAR BHAVAN, MK ROAD, MUMBAI - 20. (APPELLANT) VS. SHRI VIJAY BIYANI, A-402, JUPITER, VASANT GALAXY, GOREGAON (WEST), MUMBAI - 400 090. PAN: AAHPB 4183 (RESPONDENT) APPELLANT BY : SHRI RAJARSHI DWIWEDY RESPONDENT BY : SHRI SANJIV M. SHAH DATE OF HEARING : 17/09/2012 DATE OF PRONOUNCEMENT : 26 /09/2012 ORDER PER I.P.BANSAL, J.M THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DI RECTED AGAINST THE ORDER DATED 17/6/2011 PASSED BY LD. CIT(A)-20, MUMBAI FOR ASSESSMENT YEAR 2008-09. THE GROUNDS OF APPEAL READ AS UNDER: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT THE ASSESSING OFFIC ER WAS NOT JUSTIFIED IN TREATING THE INCOME FROM SHORT TERM CAPITAL GAIN FR OM SALE OF SHARES AS INCOME FROM BUSINESS AND PROFESSION DESPITE THE F ACT THAT SALE OF SHARES BY THE ASSESSEE WAS MORE OF AN ADVENTURE IN THE NATURE OF TRADE RATHER THAN INVESTMENT. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 2. THE AO TREATED THE INCOME FROM TRANSACTION ON S ALE AND PURCHASE OF SHARES ENTERED INTO BY THE ASSESSEE AS INCOME FRO M BUSINESS AS AGAINST ITA NO. 5769/MUM/2011(A.Y. 2008-09) 2 CLAIM OF THE ASSESSEE THAT IT GIVE RISE TO INCOME A SSESSABLE UNDER THE HEAD CAPITAL GAIN. LD. CIT(A) HAS DELETED THE ADDITIO N FOLLOWING HIS ORDER FOR ASSESSMENT YEAR 2006-07 AND IT HAS BEEN POINTED OUT BY LD. CIT(A) THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE HAVE N OT UNDER GONE ANY CHANGE AS COMPARED TO THE FACTS OF A.Y. 2006-07 AN D, THEREFORE, LD. CIT(A) HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. 3. AFTER NARRATING THE FACTS, RELYING UPON THE ORDE R PASSED BY AO IT WAS SUBMITTED BY LD. D.R THAT AO WAS RIGHT IN TREATING THE INCOME ARISING FROM SALE AND PURCHASE OF SHARES AS INCOME ASSESSABLE F ROM BUSINESS AND LD. CIT(A) HAS ERRED IN HOLDING THAT THE SAME IS LIABLE TO BE ASSESSED UNDER THE HEAD CAPITAL GAIN. 4. IT WAS SUBMITTED BY LD. A.R THAT THE FACTS AND CIRCUMSTANCES OF THE CASE, AS POINTED OUT BY LD. CIT(A), ARE SAME AS COM PARED TO A.Y 2006-07 AND RELYING UPON THE SAID ORDER LD. CIT(A) HAS DECI DED THIS ISSUE IN FAVOUR OF THE ASSESSEE. IT WAS SUBMITTED THAT DEPARTMENT HAD PREFERRED AN APPEAL AGAINST THE AFOREMENTIONED ORDER PASSED BY LD. CIT( A) IN RESPECT OF A.Y. 2006-07 AND DEPARTMENTAL APPEAL WAS DISMISSED BY TH E TRIBUNAL VIDE ORDER DATED 11/7/2012 IN ITA NO.3889/M/2010(COPY OF THE A BOVE ORDER IS PLACED ON RECORD AND IS ALSO GIVEN TO LD. D.R) WITH THE FO LLOWING OBSERVATION: WE HAVE GONE THROUGH THE SUBMISSIONS MADE BOTH TH E SIDES AND HAVE ALSO PERUSED THE MATERIAL AND DETAILS PROVIDED IN THE P APER BOOK. WE FIND THAT THE ASSESSEE, CONSISTENTLY OVER THE YEARS HAD BEEN MAINTAINING TWO SEPARATE AND DISTINCT PORTFOLIOS WHICH HAVE BEEN ACCEPTED BY THE DEPARTMENT, AS WAS EVIDENT FROM PAGE NO.30 OF THE PAPER BOOK. IT IS AL SO SEEN THAT THERE HAS BEEN NO CHANGE EITHER IN THE HOLDING PATTERN OF THE SHA RES WHICH HAVE BEEN TAKEN AS INVESTMENT, NOR THERE HAS BEEN ANY CHANGE IN THE TRADING PATTERN, WHICH THE ASSESSEE HAD BEEN DOING FROM HIS SIT. WE ARE TH EREFORE, OF THE VIEW THAT THE CASE OF THE ASSESSEE FALLS SQUARELY WITHIN THE PARAMETERS OF THE RATIO DECIDED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE. CASE OF GOPAL PUROHIT (SUPRA) AND HOLD THAT THE DECISION ARRIVED AT BY TH E CIT(A) IS WELL IN LINE WITH THE DECISION OF THE HONBLE BOMBAY HIGH COURT. WE, THEREFORE, DO NOT INTEND TO DISTURB THE FINDINGS OF THE CIT(A), AS REPRODUCE D ABOVE, AND DISMISS THE APPEAL FILED BY THE DEPARTMENT. ITA NO. 5769/MUM/2011(A.Y. 2008-09) 3 THEREFORE, LD. A.R PLEADED THAT THE ISSUE IS COVERE D IN FAVOUR OF THE ASSESSEE BY THE AFOREMENTIONED DECISION OF THE TRIBUNAL AND DEPARTMENTAL APPEAL SHOULD BE DISMISSED. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. LD. CIT(A) HAS FOUND TH AT FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE SIMILAR TO TH OSE OF ASSESSMENT YEAR 2006-07. THESE FINDING OF FACTS ARRIVED AT BY LD. CIT(A) HAVE NOT BEEN CHALLENGED BEFORE US BY PLACING ANY MATERIAL ON RE CORD TO ASSAIL SUCH FINDINGS. FOR A.Y 2006-07 TRIBUNAL HAS UPHELD THE ORDER OF LD. CIT(A) AND RELEVANT OBSERVATION HAVE ALREADY BEEN REPRODUCED. THEREFORE, THE PRESENT ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE AND AGAI NST THE DEPARTMENT BY THE AFOREMENTIONED DECISION OF TRIBUNAL IN ASSESSEES O WN CASE. THEREFORE, WE DECLINE TO INTERFERE IN THE RELIEF GRANTED BY LD. C IT(A) AND THE DEPARTMENTAL APPEAL IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 26 TH DAY OF SEPT. 2012 SD/- SD/- (B.RAMAKOTAIAH ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 26 TH SEPT. 2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.R F BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.