ACIT (OSD2 ) CITY 2, MUMBAI V. JEET MACHINE TOLLS LTD, MUMBAI

ITA 5814/MUM/2009

• Counselvise Citation: 581419914 RSA 2009
• Duration Of Justice: 2 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 13-06-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 30-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARTHA SARATHI NAIK
• Assessee Lawyers: J P BAIRAGRA
• Keywords: Business income; Rule of consistency; Question of law

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI . . , ! ! ! ! '#$% '#$% '#$% '#$% , & & & & ' ' ' ' BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER . / ITA NO. 5814/MUM./2009 ( ( )( / ASSESSMENT YEAR : 2005-06 ) DY. COMMISSIONER OF INCOME TAX CIRCLE2(2), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBAI 400 020 .. *+ / APPELLANT V/S M/S. JEET MACHINE TOOLS LTD. 25, AMBALAL DOSHI MARG HAMAM STREET, FORT MUMBAI 400 023 .... ,-*+ / RESPONDENT * & ./ ./ ./ PAN/GIR NO.AAACJ0252A . 0 1 / REVENUE BY : MR. PARTHASARATHI NAIK (23 0 1 / ASSESSEE BY : MR. J.P. BAIRAGRA 0 3& / DATE OF HEARING 13.06.2012 4 56) 0 3& / DATE OF ORDER 04.07.2012 4 / ORDER PER B.R. MITTAL, J.M. THE PRESENT APPEAL PREFERRED BY THE REVENUE, IS DIR ECTED AGAINST THE IMPUGNED ORDER 17 TH AUGUST 2009, PASSED BY THE COMMISSIONER (APPEALS) II, MUMBAI, FOR ASSESSMENT YEAR 200506. THE ONLY G ROUND RAISED BY THE M/S. JEET MACHINE TOOLS LTD. 2 REVENUE IS, AS TO WHETHER THE COMMISSIONER (APPEALS ) HAS ERRED IN FACTS AND ON THE CIRCUMSTANCES OF THE CASE IN HOLDING THAT TH E SHORT TERM CAPITAL SHOWN BY THE ASSESSEE IS ASSESSABLE UNDER THE HEAD BUSINESS INCOME . 2. THE RELEVANT FACTS ARE THAT THE ASSESSEE IS A PUBLI C LIMITED COMPANY ENGAGED IN THE BUSINESS OF TRADING IN MACHINERY. FO R THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE FILED RETURN OF I NCOME DECLARING TOTAL INCOME OF ` 30,86,808. 3. IN THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASS ESSEE HAS DECLARED SHORT TERM CAPITAL GAIN OF ` 18,17,014, ON SALE OF SHARES. THE ASSESSING OFFICER HAS STATED THAT ON VERIFICATION OF THE DETA ILS FURNISHED, THE FREQUENCY OF SALE AND PURCHASE OF SHARES IS VERY HIGH AND ALS O THE QUANTUM OF SHARES PURCHASED IN SOME CASES ARE VERY HIGH. THE ASSESSIN G OFFICER HAS GIVEN THE DETAILS OF THE SHARES FOR WHICH THE ASSESSEE HAS AC COUNTED FOR SHORT TERM CAPITAL GAIN AT PAGE9 IN PARA3.25 OF THE ASSESSME NT ORDER, WHICH IS AS FOLLOWS: SCRIPS NAME DATE OF PURCHASE DATE OF SALE TCFC 100000 SHARES 3 LOTS 10.2.2004 / 3.3.2004 6.4.2004 ALLAHABAD BANK 2000 16.4.2004 27.6.2004 TCS 5 LOTS 26.8.2004 20.9.2004 / 21.9.2004 / 29.9.2004 BHARATI SHIPYARD 24.12.2004 10.1.2005 INDIAN SEAMLESS 2000 26.1.2005 27.1.2005 NTPC 9 LOTS 27.10.2004 2.12.2004 / 6.12.2004 / 14.12.2004 4. THE ASSESSING OFFICER HAS ALSO DISCUSSED THE PRINCI PLES OF THE DECIDED CASES AND HAS HELD THAT THE INCOME OF ` 18,17,014, FROM ITS ACTIVITY OF M/S. JEET MACHINE TOOLS LTD. 3 DEALING IN SHARES IS BUSINESS INCOME INSTEAD OF CAP ITAL GAINS AS CLAIMED BY THE ASSESSEE. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BE FORE THE FIRST APPELLATE AUTHORITY, WHEREIN, ON BEHALF OF THE ASSE SSEE, IT WAS CONTENDED THAT THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL GAIN ON SALE OF SHARES AND THE ASSESSING OFFICER AC CEPTED THE LONG TERM CAPITAL GAIN BUT TREATED THE SHORT TERM CAPITAL GAI N AS BUSINESS INCOME . IT WAS CONTENDED THAT THE SHARE TRANSACTIONS ENTERED I NTO BY THE ASSESSEE WERE SO FEW AND SMALL THAT IT CANNOT BE HELD THAT THERE WERE BUSINESS TRANSACTIONS IN THEMSELVES. IT WAS ALSO CONTENDED THAT THE MEMOR ANDUM OF ARTICLE AND ASSOCIATION OF THE ASSESSEE ALLOWS THE ASSESSEE TO MAKE INVESTMENT IN SHARES. THE INVESTMENT IN SECURITIES HAVE ALWAYS BE EN CHARACTERIZED AS INVESTMENT BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT AND IN THE BALANCE SHEET DRAWN UP BY IT YEAR AFTER YEAR. IT WAS ALSO CONTEND ED THAT IN THE ASSESSMENT OF EARLIER YEARS, BOTH THE SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAIN HAD BEEN ASSESSED AS CAPITAL GAINS. IT WAS ALSO CON TENDED THAT PURCHASE AND SALE OF SHARES ARE NEITHER ALLIED TO OR INCIDENTAL TO CARRYING ON ASSESSEES BUSINESS OF DEALING IN MACHINERY. 6. THE COMMISSIONER (APPEALS) CONSIDERED THE SUBMISSIO NS OF THE ASSESSEE AND VIDE PARA6 OF THE IMPUGNED ORDER, DIR ECTED THE ASSESSING OFFICER TO TREAT THE INCOME OF THE ASSESSEE UNDER T HE HEAD SHORT TERM CAPITAL GAIN, WHICH READS AS FOLLOWS: 6. I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE A. R. AND I FIND THAT THE A.O. HAS ACCEPTED THE LONG TERM CAPITAL GA IN BUT TREATED THE SHORT TERM CAPITAL GAIN AS BUSINESS INCOME OF THE A SSESSEE. THE APPELLANT HAS FILED THE DETAILS OF SHORT TERM CAPIT AL GAIN WHICH SHOWS THAT THE ASSESSEE HAS PURCHASED AND SOLD SHARES OF ONLY 10 COMPANIES DURING THE YEAR IN QUESTION WHICH CANNOT BE REGARDE D AS FREQUENT SALE AND PURCHASE OF SHARES. BESIDES THE INTENTION OF TH E ASSESSEE IS EVIDENT FROM THE BALANCE SHEET IN WHICH THE ASSESSE E HAS SHOWN THE SHARES AS INVESTMENTS AND NOT AS STOCK IN TRADE. IN VIEW OF THESE FACTUAL FINDINGS, THE DECISION OF MUMBAI ITAT IN TH E CASE OF JANAK S. RAANGWALA V/S ACIT, 11 SOT 627, WILL HOLD GOOD WHER EIN IT WAS HELD THAT MERE MAGNITUDE OF TRANSACTION WOULD NOT CHANGE THE NATURE OF TRANSACTION. RESPECTFULLY FOLLOWING THE DECISION OF ITAT, MUMBAI, I DIRECT THE A.O. TO TREAT THE INCOME OF THE ASSESSEE AS SHORT TERM CAPITAL GAIN. THIS GROUND OF APPEAL IS ALLOWED. M/S. JEET MACHINE TOOLS LTD. 4 HENCE, THE DEPARTMENT IS IN APPEAL BEFORE THE TRIB UNAL. 7. AT THE TIME OF HEARING, BEFORE US, THE LEARNED DEPA RTMENTAL REPRESENTATIVE RELIED ON THE ORDER PASSED BY THE AS SESSING OFFICER. HE SUBMITTED THAT THE ASSESSEES ACTIVITY OF DEALING I N SHARES CONTINUED REGULARLY THROUGHOUT THE YEAR. HENCE, THE ASSESSEE IS A DEALER IN SHARES. 8. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSE SSEE SUPPORTED THE ORDER PASSED BY THE COMMISSIONER (APPEALS). HE SUBM ITTED THAT THE ASSESSING OFFICER HIMSELF TREATED THE ASSESSEE AS INVESTOR IN SHARES. THE LEARNED COUNSEL SUBMITTED THAT THERE WAS A SHORT TE RM CAPITAL LOSS CLAIMED FOR THE TRANSACTION ENTERED INTO BEFORE 1 ST OCTOBER 2004 AND LOSS OF ` 53,467, HAS BEEN ACCEPTED BY THE ASSESSING OFFICER. HE REFE RRED TO PAGE25 OF THE PAPER BOOK AND SUBMITTED THAT THERE WERE ONLY FIVE SCRIPS WHICH WERE DEALT WITH BY THE ASSESSEE BEFORE 1 ST OCTOBER 2004, AND THE ASSESSING OFFICER ACCEPTED THE TRANSACTIONS AS INVESTMENT . THE LEARNED COUNSEL SUBMITTED THAT THERE WAS LONG TERM CAPITAL GAIN AMOUNTING TO ` 7,46,715 BEFORE 1 ST OCTOBER 2004 AND THE ASSESSING OFFICER ACCEPTED THE SAME AS LONG TERM CAPITAL GAIN. HE FURTHER SUBMITTED THAT THERE WAS A LONG TERM CAPITAL LOSS AFTER 1 ST OCTOBER 2004, AMOUNTING TO ` 4,12,208, AND THE SAME HAS ALSO BEEN ACCEPTED BY THE ASSESSING OFFICER. THE LEARNED COUNSEL REFERRED TO PAGES22 TO 24 OF THE PAPER BOOK WHICH CONTAIN THE DETAILS OF LONG TERM CAPITAL GAIN / LONG TERM CAPITAL LOSS CLAIMED BY TH E ASSESSEE. THE LEARNED COUNSEL FURTHER REFERRED TO PAGE26 OF THE PAPER BO OK AND SUBMITTED THAT THERE IS A SHORT TERM CAPITAL GAIN OF ` 18,17,014, IN RESPECT OF SHARES SOLD AFTER 1 ST OCTOBER 2004 AND THERE ARE ONLY FIVE TRANSACTIONS. HE SUBMITTED THAT THE MAJOR SHORT TERM CAPITAL GAIN IS IN RESPEC T OF SHARES OF INFOSYS TECHNOLOGY OF ` 13,94,737, OUT OF TOTAL SHORT TERM CAPITAL GAIN OF ` 18,17,014. HE SUBMITTED THAT THE SAID SHARES WERE P URCHASED ON 6 TH JULY 2004, AND WERE SOLD ON 24 TH MARCH 2005 I.E., AFTER A PERIOD OF MORE THAN EIGHT MONTHS. HE FURTHER SUBMITTED THAT THE ASSESSE E ALSO PURCHASED SHARES OF NTPC ON 27 TH OCTOBER 2004, AND SOLD SAID SHARES ON 2 ND DECEMBER 2005, 6 TH DECEMBER 2004, 7 TH DECEMBER 2004, AND 14 TH DECEMBER 2004 AND THERE WAS SHORT TERM CAPITAL GAIN OF ` 3,46,461. THEREFORE, 96% OF THE CAPITAL GAIN M/S. JEET MACHINE TOOLS LTD. 5 IS ONLY IN RESPECT OF THESE TWO SCRIPS. THE LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE ALSO PURCHASED AND SOLD SHARES OF TCS WHIC H WERE ALSO PURCHASED ON 26 TH AUGUST 2004, AND SOLD ON 1 ST /7 TH OCTOBER 2004. THE LEARNED COUNSEL SUBMITTED THAT IN RESPECT OF SHARES OF INDIAN SEMLE SS, THE ASSESSEE HAS INCURRED SHORT TERM CAPITAL LOSS OF ` 19,865, BUT IN RESPECT OF SAID SHARES, THERE WAS A MISTAKE AS THE ASSESSEE PURCHASED THE S AID SHARES IN THE YEAR 1994 AND SOLD ON 24 TH JANUARY 2005. HE SUBMITTED THAT, BY MISTAKE, ONCE AGAIN THE SHARES OF INDIAN SEMLESS SOLD ON 27 TH JANUARY 2005 AND THEREAFTER THE SAID SHARES WERE PURCHASED IN AUCTION AT THE ST OCK EXCHANGE ON 28 TH JANUARY 2005. THE LEARNED COUNSEL SUBMITTED THAT TH E ASSESSEE HAS ALSO PURCHASED SHARES OF BHARTI SHIPYARD ON 24 TH DECEMBER 2004, AND SOLD ON 10 TH JANUARY 2005, SHOWING SHORT TERM CAPITAL GAIN OF ` 20,050. HE SUBMITTED THAT THE OBSERVATION OF THE ASSESSING OFF ICER THAT THERE WERE REPEATED PURCHASES AND SALES OF SHARES OR THERE IS HIGH FREQUENCY OF SHARE TRANSACTIONS IS NOT FACTUALLY CORRECT, AS THERE WER E ONLY FIVE SCRIPS IN WHICH THE SHARES WERE PURCHASED AND SOLD. THE LEARNED COU NSEL FURTHER SUBMITTED THAT THE ASSESSING OFFICER, IN THE ASSESSMENT ORDER , HAS ONLY DISCUSSED THEORETICAL PART BUT NOWHERE HAS STATED, AS TO HOW THE INSTANCES MENTIONED BY HIM FIT TO THE CASE OF THE ASSESSEE. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAD BEEN DEALING IN MACHINERY AND MAKING INVESTMENT IN SHARES RIGHT FROM THE ASSESSMENT YEAR 199495 AND T HE SAME HAS BEEN ACCEPTED AS INVESTMENT IN THE PRECEDING ASSESSMENT YEARS AS WELL AS THE SUCCEEDING ASSESSMENT YEAR TO THE ASSESSEE YEAR UND ER CONSIDERATION. TO SUBSTANTIATE HIS SUBMISSIONS, THE LEARNED COUNSEL R EFERRED TO PAGE29 OF THE PAPER BOOK, WHICH CONTAINS THE DETAILS OF INVESTMEN T IN SHARES FROM THE ASSESSMENT YEAR 199596 TO 200506. THE LEARNED COU NSEL SUBMITTED THAT SCRUTINY ASSESSMENTS HAD ALSO TAKEN PLACE IN THE AS SESSMENT YEAR 199495, 199596, 199899, 200607 AND 200708, WHEREIN THE ASSESSEES CLAIM OF SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAIN IN RESPECT OF TRANSACTIONS IN SHARES WAS ACCEPTED. TO SUBSTANTIATE HIS SUBMISS IONS, THE LEARNED COUNSEL REFERRED TO PAGES67 TO 76 OF THE PAPER BOO K, WHICH IS A COPY OF ASSESSMENT ORDER FOR ASSESSMENT YEAR 199495, PAGES 154 TO 157, WHICH IS A COPY OF ASSESSMENT ORDER FOR ASSESSMENT YEAR 2006 07 AND PAGES167 TO 170, WHICH IS A COPY OF ASSESSMENT ORDER FOR ASSESS MENT YEAR 200708 OF M/S. JEET MACHINE TOOLS LTD. 6 THE PAPER BOOK. HE SUBMITTED THAT IN THE ASSESSMENT YEAR 200607, THE ASSESSING OFFICER TREATED THE SHORT TERM CAPITAL GA IN AS BUSINESS INCOME BUT THE COMMISSIONER (APPEALS) REVERSED THE ASSESSMENT ORDERS AND ACCEPTED ASSESSEES CLAIM OF SHORT TERM CAPITAL GAIN AND REFERRED TO PAGES158 T O 163 OF PAPER BOOK. THAT DEPARTMENT HAS NOT DISPUTED THE SAID ORDER OF THE COMMISSIONER (APPEALS) IN FURTHER APPEAL. THE LEARN ED COUNSEL SUBMITTED THAT THE COMMISSIONER (APPEALS), FOLLOWING THE RULE OF CONSISTENCY, HAS RIGHTLY ACCEPTED THE SHORT TERM CAPITAL GAIN IN THE ASSESSMENT YEAR UNDER CONSIDERATION. THE LEARNED COUNSEL REFERRED TO THE TABLE GIVEN BY THE ASSESSING OFFICER AT PAGE9 OF THE ASSESSMENT ORDER WHICH IS REPRODUCED HEREIN ABOVE IN PARA3 AND SUBMITTED THAT FIRST THR EE TRANSACTIONS OF SHARES MENTIONED BY THE ASSESSING OFFICER ARE PRIOR TO 1 ST OCTOBER 2004 AND SAME HAVE ALREADY BEEN ACCEPTED BY THE ASSESSING OFFICER AS SHORT TERM CAPITAL GAIN. THE LEARNED COUNSEL SUBMITTED THAT THE PRINCI PLE LAID BY VARIOUS JUDGMENTS OF THE HON'BLE SUPREME COURT AND HIGH COU RTS JUSTIFY THE CLAIM OF THE ASSESSEE AS SHORT TERM CAPITAL GAIN AND, THEREF ORE, THE ORDER OF THE COMMISSIONER (APPEALS) BE CONFIRMED. 9. WE HAVE CONSIDERED THE ORDERS OF THE AUTHORITIES BE LOW AND THE SUBMISSIONS OF LEARNED REPRESENTATIVES OF THE PARTI ES. WE HAVE ALSO CAREFULLY CONSIDERED THE RELEVANT PAGES OF THE PAPER BOOK. ON PERUSAL OF THE DETAILS OF SHARES PLACED AT PAGE26 OF THE PAPER BOOK, WE AGRE E WITH THE LEARNED COUNSEL FOR THE ASSESSEE THAT THERE ARE ONLY FIVE S CRIPS OF SHARES WHICH HAVE BEEN PURCHASED BY THE ASSESSEE AND SOLD IN THE ASSE SSMENT YEAR UNDER CONSIDERATION AFTER 1 ST OCTOBER 2004. THE DETAILS OF SHARES GIVEN BY THE ASSESSING OFFICER IN PARA3.25 OF THE ASSESSMENT OR DER AT PAGE9, IS NOT FACTUALLY CORRECT AS THE ASSESSING OFFICER HIMSELF HAS ACCEPTED FIRST THREE SHARE TRANSACTIONS WHICH WERE COMPLETED BEFORE 1 ST OCTOBER 2004, AS INVESTMENT AND THE SHORT TERM CAPITAL LOSS DECLARED BY THE ASSESSEE OF ` 53,467, HAS NOT BEEN DISPUTED BY THE ASSESSING OFFI CER. WE ALSO OBSERVE THAT OUT OF SHORT TERM CAPITAL GAIN OF ` 18,17,014, THE SHORT TERM CAPITAL GAIN OF ` 17,41,000 (APPROXIMATELY) RELATES TO ONLY TWO SCRIP S NAMELY INFOSYS TECHNOLOGY AND NTPC. WE OBSERVE THAT THE SHARES OF INFOSYS TECHNOLOGY, THERE ARE NO REPETITIVE TRANSACTIONS. ALL THE SHARE S WERE PURCHASED ON THE SAME DAY I.E., ON 6 TH JULY 2004, AND WERE ALSO SOLD ON 24 TH MARCH 2005. THE M/S. JEET MACHINE TOOLS LTD. 7 SAID SHARES WERE HELD BY THE ASSESSEE FOR A PERIOD OF MORE THAN EIGHT MONTHS. SIMILARLY, THE SHARES OF NTPC WERE ALSO PUR CHASED ON 27 TH OCTOBER 2004, AND WERE SOLD IN DECEMBER 2004. IN THAT SCRIP ALSO, IT CANNOT BE SAID THAT THE ASSESSEE HAS REPETITIVELY ENTERED INTO THE TRANSACTIONS OF PURCHASE AND SALE OF SHARES. WE OBSERVE THAT THERE ARE ALSO THREE OTHER SCRIPS AND IN RESPECT OF ONE OF THE SCRIPS NAMELY INDIAN SEMLESS, THERE IS SHORT TERM CAPITAL LOSS OF ` 19,865, AND THE ASSESSEE STATED T HAT THIS TRANSACTION TOOK PLACE BECAUSE OF SOME MISTAKE. WE OBSERVE THAT THE DEPARTMENT HAS NOT DISPUTED THE SAID FACT. IT IS ALSO OBSERVE THAT THE ASSESSEE HAS BEEN DEALING IN SHARES AS AN INVESTOR FROM ASSESSMENT YEAR 1995 96 AND THE DEPARTMENT HAS ACCEPTED THE SAME AS INVESTMENT EXCEPT IN THE A SSESSMENT YEAR UNDER CONSIDERATION. IT IS RELEVANT TO STATE THAT IN THE ASSESSMENT YEAR 200607, THE ASSESSING OFFICER DID NOT ACCEPT THE SHORT TERM CAP ITAL GAIN BUT THE FIRST APPELLATE AUTHORITY ACCEPTED THE CLAIM OF THE ASSES SEE AND THE DEPARTMENT DID NOT DISPUTE THE SAME. 10. CONSIDERING THE FACTS OF THE CASE, WE ARE OF THE CO NSIDERED VIEW THAT THE DISCUSSION MADE BY THE ASSESSING OFFICER DOES N OT FIT INTO THE FACTS OF THE CASE OF THE ASSESSEE BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT THE HON'BLE SUPREME COURT HAS HELD IN CIT V/S HOLCK LAR SEN (H.), [1986] 160 ITR 67 (SC) THAT QUESTION AS TO WHETHER THE TRANSACTION O F SALE AND PURCHASE OF SHARES IS A TRADING TRANSACTION OR WHETHER IT IS IN THE NATURE OF INVESTMENT, IS A MIXED QUESTION OF LAW AND FACT. THEREFORE, ALL TH E RELEVANT FACTORS HAVE TO BE TAKEN INTO CONSIDERATION TO DECIDE AS TO WHETHER THE PERSON IS A DEALER IN SHARES OR AN INVESTOR . IN THE CASE BEFORE US, WE OBSERVE THAT IT IS NOT A CASE WHERE THE ASSESSEE IS HOLDING LARGE NUMBER OF SHARES OR VOLUME OF TRANSACTION IS HIGH OR THE ASSESSEE IS CARRYING ON THE SALE AND PURCHASE OF SHARES ACTIVITY IN AN ORGANISED WAY TO CHARACTERISE IT AS A TRADING ACTIVITY. NOT ONLY THIS, OUT OF THE TOTAL CAPITAL GAIN OF ` 1 8,17,014, THE SHORT TERM CAPITAL GAIN OF ` 13,94,737, IS IN RESPECT OF ONLY ONE SCRIP WHERE THE HOLDING PERIOD IS MORE THAN EIGHT MONTHS. THEREFORE, ON THE FACTS OF THE CASE BEFORE US, WE HOLD THAT THE TRANSACTION IN THE YEAR OF SAL E AND PURCHASE OF SHARES AS IN THE PRECEDING YEARS AND/OR IN THE SUCCEEDING YEA R ARE ON THE SAME BASIS AND THE COMMISSIONER (APPEALS) HAS RIGHTLY TREATED THE SAME AS INVESTMENT . ACCORDINGLY, THE PROFIT THEREON HAS RIGHTLY BEEN CONSIDERED ON M/S. JEET MACHINE TOOLS LTD. 8 SHORT TERM CAPITAL GAIN. HENCE, WE UPHOLD THE ORDER OF THE COMMISSIONER (APPEALS) AND REJECT THE GROUND OF APPEAL TAKEN BY THE DEPARTMENT. 11. 2 37 . 0 &2. 0 .3 8$ 9 10. IN THE RESULT, REVENUES APPEAL IS DISMISSED. 4 0 6) & : ;7 4 TH JULY 2012 6 0 < 9 ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH JULY 2012 SD/- ! ! ! ! '#$% '#$% '#$% '#$% & & & & N.K. BILLAIYA ACCOUNTANT MEMBER SD/- . . B.R. MITTAL JUDICIAL MEMBER MUMBAI, DATED: 4 TH JULY 2012 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, I BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI