DCIT CIR 15(1), MUMBAI V. E-CAP PARTNERS, MUMBAI

ITA 5837/MUM/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83480 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 04-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 03-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURALI
• Assessee Lawyers: R R VORA
• Keywords: Business income

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI , ! '# $ $ $ $ , % && , , '# ' BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUICIAL MEMBER ./ I.T.A. NO.5837/MUM/2009 ( ( ( ( ( / ASSESSMENT YEAR :2006-07 THE DCIT, CIRCLE-15(1), MATRU MANDIR, 1 ST FLOOR, TARDEO ROAD, MUMBAI-400 007 / VS. M/S. E-CAP PARTNERS, 14 TH FLOOR, EXPRESS TOWERS, NARIMAN POINT, MUMBAI-400 021 #) ! ./ %* ./ PAN/GIR NO. : AABFE 3734E ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . / APPELLANT BY: SHRI M. MURALI ,-)+ / . / RESPONDENT BY: SHRI R.R. VORA / 01! / DATE OF HEARING :04.08.2014 23( / 01! / DATE OF PRONOUNCEMENT :04.08.2014 '4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-XV, MUMBAI DT.28.8.2009 PERTAINING TO A.Y.20 06-07. 2. THE SHORT GRIEVANCE OF THE REVENUE IS THAT THE L D. CIT(A) ERRED IN DELETING THE ADDITION REGARDING THE TREATMENT OF BU SINESS INCOME AT RS. 4,10,24,327/- SHOWN AS LONG TERM AND SHORT TERM CAP ITAL GAINS. ITA NO. 5837/M/09 2 3. THE ASSESSEE IS IN THE BUSINESS OF DEALING IN SE CURITIES, STOCKS, SHARES AND OTHER PERMISSIBLE MARKETABLE INSTRUMENTS . FOR THE YEAR UNDER CONSIDERATION, THE RETURN WAS FILED ON 18.9.2006 DE CLARING TOTAL INCOME AT RS. 3,70,66,370/-. THE RETURN WAS SELECTED FOR SCR UTINY ASSESSMENT AND ACCORDINGLY STATUTORY NOTICES WERE ISSUED AND SERVE D UPON THE ASSESSEE. 3.1. DURING THE COURSE OF THE SCRUTINY ASSESSMENT P ROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS SHO WN SHORT TERM CAPITAL GAIN (STCG) AT RS. 2,20,40,352/- AND LONG TERM CAPI TAL GAIN (LTCG) AT RS. 1,89,63,975/-. THE ASSESSEE WAS ASKED TO SH OW-CAUSE WHY THE SHARE TRANSACTION CONDUCTED BY IT DURING THE YEAR B E NOT TREATED AS BUSINESS INCOME. THE ASSESSEE FILED A DETAILED REP LY DT. 26.12.2008, WHICH IS INCORPORATED BY THE AO AT PAGE- 2 TO 11 OF HIS ASSESSMENT ORDER. THE SUBMISSION OF THE ASSESSEE DID NOT FIND ANY FAV OUR WITH THE AO WHO WAS OF THE OPINION THAT CONSIDERING THE VOLUME AND FREQUENCY OF TRANSACTIONS AND EARLIER RECORDS, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF DEALING IN SHARES. DRAWING SUPPORT FROM THE CIR CULAR OF THE CBDT, THE AO WENT ON TO TREAT STCG AND LTCG AS BUSINESS I NCOME OF THE ASSESSEE. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A). AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, THE LD. CIT(A) AT PARA-4.3 ON PAGE-5 OF HIS ORDER FOLLOWED THE ORDER OF HIS PREDE CESSOR IN APPEAL NO. 66/ADDL.15(1)/07-08 DT. 18.6.2009 AND DIRECTED THE AO TO TREAT THE INCOME AS CAPITAL GAINS. 6. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 7. THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED TH E FINDINGS OF THE AO. ITA NO. 5837/M/09 3 8. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. THE LD. C OUNSEL ALSO DREW OUR ATTENTION TO THE DECISION OF THE TRIBUNAL IN ASSESS EES OWN CASE FOR A.Y. 2005-06 IN ITA NO. 4785/M/09. IT IS THE SAY OF THE LD. COUNSEL THAT FACTS AND ISSUES BEING IDENTICAL AND THE LD. CIT(A) HIMSE LF HAS FOLLOWED THE DECISION OF HIS PREDECESSOR, THE SAME VIEW DESERVES TO BE TAKEN. 9. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. A N IDENTICAL GRIEVANCE WAS THERE BEFORE THE TRIBUNAL IN A.Y. 2005-06 IN IT A NO. 4785/M/09 AND ON IDENTICAL FACTS, THE TRIBUNAL AT PARA-7 ONWARDS OF ITS ORDER HAS CONSIDERED VARIOUS JUDICIAL DECISIONS AND IN THE LI GHT OF THOSE DECISIONS, THE TRIBUNAL FINALLY CAME TO THE CONCLUSION THAT FI NDINGS OF THE LD. CIT(A) WAS CORRECT. AS NO NEW FACTS HAVE BEEN BROU GHT BEFORE US, RESPECTFULLY FOLLOWING THE FINDINGS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2005-06, WE DO NOT FIND ANY REASON TO INTE RFERE WITH THE FINDINGS OF THE LD. CIT(A). 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH AUGUST, 2014 . '4 / 3( ! 5 6'7 04.08.2014 3 / & SD/- SD/- (SANJAY GARG) (N.K. BILLAIYA) '# / JUDICIAL MEMBER ! '# / ACCOUNTANT MEMBER MUMBAI; 6' DATED : 4 TH AUGUST, 2014 . . ./ RJ , SR. PS ITA NO. 5837/M/09 4 '4 '4 '4 '4 / // / ,0 ,0 ,0 ,0 8(0 8(0 8(0 8(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 9 ( ) / THE CIT(A)- 4. 9 / CIT 5. :& ,0 , , / DR, ITAT, MUMBAI 6. &; < / GUARD FILE. '4 '4 '4 '4 / BY ORDER, -0 ,0 //TRUE COPY// = == = / > > > > % % % % (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI