MEENA PANKAJ TANNA, MUMBAI V. DCIT 17(1), MUMBAI

ITA 6589/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2349 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 25-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-10-2012
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: NIKITA AGARWAL
• Keywords: Business income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENCH MUMBAI BEFORE: SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN, JM ITA NO. 6589 /MUM/2012 ( ASSESSMENT YEAR : 200 8 - 200 9 ) MEENA PANKAJ TANNA 804 - C (204 - C), RATTY LODGE, GROUND FLOOR, DR.B.A.ROAD DADAR T.T. MUMBAI 400 014 VS. DY. CIT, 17 ( 1 ), MUMBAI PAN/GIR NO. : AACPT4113F ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : MS. NIKITA AGARWAL REVENUE BY : SHRI NEIL PHILIP DATE OF HEARING : 21 /07/2016 DATE OF PRONOUNCEMENT 19/10/ 2016 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 2008 - 2009 IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) OF THE IT ACT. 2. THE ONLY GRIEVANCE OF TH E ASSESSEE RELATE TO TREATMENT OF PROFIT ON SALE OF SHARES OFFERED AS CAPITAL GAIN WHICH WAS TREATED BY THE AO AS BUSINESS INCOME. 3. AT THE OUTSET, LEARNED AR PLACED ON RECORD THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005 - 2 006 WHEREIN ASSESSEES CLAIM FOR 2 ITA NO. 6589 - 2012 MEENA PANKAJ TANNA, MUMBAI TREATMENT OF CAPITAL GAINS WAS ACCEPTED BY THE TRIBUNAL IN ITA NO.1604/MUM/2015 VIDE ITS ORDER DATED 11/02/2015 AFTER HAVING THE FOLLOWING OBSERVATION. 5.2 WE HAVE HEARD THE RIVAL CONTENTIONS. WE FIND FROM THE ORDER OF THE CIT(A), THAT THE LD. CIT(A) AFTER DISCUSSION OF THE OVER ALL FACTS AND CIRCUMSTANCES OF THE CASE HAS GIVEN A CATEGORICAL FINDING THAT IT HAS BEEN ESTABLISHED WITH SUFFICIENT EVIDENCE, THAT THE ASSESSEE'S INTENTION WAS OF INVESTMENT AND NOT IN TRADING IN S HARES. HE, HOWEVER, TREATED THE INCOME FROM SALE OF SHARES WHICH WERE HELD BY THE ASSESSEE FOR LESS THAN 45 DAYS AS BUSINESS INCOME. IN OUR VIEW, ONCE THE LD. CIT(A) HAS HELD THAT THE ASSESSEE WAS AN INVESTOR THEN UNDER SUCH CIRCUMSTANCES A DIFFERENT TREAT MENT GIVEN TO THE TRANSACTION OF SHARES HELD UP TO 45 DAYS CANNOT BE SAID TO BE JUSTIFIED. IT IS THE INTENTION OF THE ASSESSEE WHICH MATTERS AND ONCE SUCH AN INTENTION IS ESTABLISHED, THEN THE ASSESSEE IS TO BE TREATED AS AN INVESTOR. HENCE, WE SET ASIDE T HE ORDER OF CIT(A) ON THIS ISSUE AND DIRECT THE AO TO COMPUTE THE INCOME OF THE ASSESSEE UNDER THE HEAD CAPITAL GAINS AS CLAIMED BY THE ASSESSEE. 4. DURING THE YEAR UNDER CONSIDERATION ALSO, WE FOUND THAT ASSESSEES INTENTION WAS OF INVESTMENT AND NOT TR ADING IN SHARES. ACCORDINGLY, THE PROFITS ARISING OUT OF SALE OF SHARES ARE TO BE TREATED AS CAPITAL GAIN AND NOT AS BUSINESS INCOME. AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION ARE SAME, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBU NAL IN ASSESSEES OWN CASE, WE DIRECT THE AO TO TREAT THE PROFIT OFFERED ON SALE OF SHARES AS CAPITAL GAIN RATHER THAN BUSINESS INCOME. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN TERMS INDICATED HEREIN ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19/10 / 2016. S D/ - ( SANDEEP GOSAIN ) S D/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 19/10/2016 3 ITA NO. 6589 - 2012 MEENA PANKAJ TANNA, MUMBAI KARUNA , SR. PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY //