DCIT 17(2), MUMBAI V. PANKAJ MULJI TANNA, MUMBAI

ITA 7911/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78857 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 16-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARMINDER
• Keywords: Business income
• Section: 12; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C , MUMBAI BEFORE SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 7911/M/2010 ASSESSMENT YEAR: 2007 - 08 DY. CIT - 17(1), 1 ST FLOOR, PIRAMAL CHAMBERS, MUMBAI - 1 2 V S. SHRI PANKAJ MULJI TANNA 207 - C, DR. BABA SAHEB AMBEDKAR ROAD, RATTY LODGE, GROUND FLOOR, DADAR, T.T. MUMBAI - 14 PAN: AACPT 4116A (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMT. PARMINDER, D.R. DATE OF HEARING : 08.05 .201 4 DATE OF PRONOUNCEMENT : 08.05.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTE R REFERRED TO AS CIT(A)] DATED 13.08.10. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL. 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE A.O. TO TREAT THE TRANSACTIONS UNDER SCRUTINY AS SHOR T TERM CAPITAL GAINS ONLY AS AGAINST BUSINESS INCOME. 2) THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3) THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A N EW GROUND WHICH MAY BE NECESSARY. 2. THE POINT OF DISPUTE INVOLVED IN THIS CASE IS REGARDING THE INCOME FROM SHARES EARNED BY THE ASSESSEE WHETHER IS TO BE TREATED AS SHORT TERM CAPITAL GAINS OR BUSINESS INCOME. THE ASSESSEE HAD CLAIMED THE SAME AS SHOR T TERM CAPITAL GAINS WHERE THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) ITA NO. 7911/M/2010 SHRI PANKAJ MULJI TANNA 2 ASSESSED THE SAME AS BUSINESS INCOME. THE LD. CIT(A) DIRECTED THAT THE TRANSACTIONS INVOLVING LESS THAN 45 DAYS BE TREATED AS BUSINESS TRANSACTIONS AND REST OF THE TRAN SACTIONS BE TREATED AS SHORT TERM INVESTMENTS. AGGRIEVED AGAINST THE ORDER OF THE LD. CIT(A) THE REVENUE PREFERRED THE PRESENT APPEAL. 3. AT THE OUTSET, LD. D.R. SUBMITTED THAT IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004 - 05, 2005 - 06 AND 2006 - 07 THE ITAT C BENCH, MUMBAI VIDE ORDER DATED 25.03.11 PASSED IN ITA NOS.1602/M/09, 1603/M/09 & 3863/M/09 RESPECTIVELY HAS SET ASIDE THE CIT(A)S ORDER AND RESTORED THE MATTER BACK TO THE FILE OF THE AO DIRECTING THE AO TO PASS A FRESH ORDER AFTER MAKING A DETAILED ANALYSIS AND NECESSARY EXAMINATIONS RELATING TO THE TRANSACTIONS IN QUESTION AS PER THE OBSERVATIONS OF THE TRIBUNAL MADE VIDE THE ORDER DATED 25.03.11. HE HAS FURTHER SUBMITTED THAT T HE FACTS AND ISSUES INVOLVED IN THE PRESENT CASE ARE BEING IDE NTICAL IN NATURE, THE MATTER BE RESTORED TO THE AO FOR FRESH ANALYSIS IN TERMS OF THE ORDER DATED 25.03.11 RELATING TO EARLIER ASSESSMENT YEARS AS ABOVE. IN VIEW OF THE ABOVE FACTS, THE ISSUE IS RESTORED TO THE FILE OF THE AO TO DECIDE IT AFRESH AFTER MAK ING FRESH ANALYSIS IN TERMS OF THE ORDER DATED 25.03.11 PASSED BY THE ITAT IN THE OWN CASE OF THE ASSESSEE FOR ASSESSMENT YEARS 2004 - 05 TO 2006 - 07. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNC ED IN THE OPEN COURT ON 08.05. 201 4 . SD/ - SD/ - ( N. K. BILLAIYA ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 13.05.2014 . * KISHORE COPY TO: THE APPEL LANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI ITA NO. 7911/M/2010 SHRI PANKAJ MULJI TANNA 3 THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.