ACIT CIR 3, MUMBAI V. SIDDHARTH UDAY TAMBE, MUMBAI

ITA 8614/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75358 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 13-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 10-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PT H
• Assessee Lawyers: AARTI VISSANJI SHRI R K SAHU
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND DR.S.T.M.PAVALAN, JUDICIAL MEMBER ITA NO. 8614/MUM/2010 ASSESSMENT YEAR: 2007-08 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE -3, 2 ND FLOOR, RANI MANSION, MURBAD ROAD, KALYAN (W)- 421 301 THANE. VS. SHRI SIDDHARTH UDAY THAMBE A-17/18, DEV MANGAL CHS LTD DR. SP MUKHERJEE ROAD, DOMBIVALI (E) PAN:- ABYPT 3867H APPELLANT RESPONDENT ASSESSEE BY : MS. AARTI VISSANJI REVENUE BY : SHRI R.K.SAHU DATE OF HEARING : 13.01.2014 DATE OF PRONOUNCEMENT : 22.01.2014 ORDER PER DR. S.T.M PAVALAN, JM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF LD. CIT(A)-1, MUMBAI, DATED 31.08.2010 FOR THE ASSESSMENT YEAR 20 07-08. 2. IN THIS APPEAL, THE REVENUE HAS AGITATED THE DEC ISION OF LD. CIT(A) IN HOLDING THE INCOME FROM SHARE TRANSACTIONS AS LONG TERM CA PITAL GAIN AND SHORT TERM CAPITAL GAIN OF RS. 1,92,31,726/- AND RS. 52,29,066/- RESP ECTIVELY AS AGAINST THE DECISION OF THE AO TREATING THE SAME AS BUSINESS INCOME. 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD, IT IS PERTINENT TO MENTION THAT THE ASSESSEE IS AN NRI, B ASICALLY ENGAGED IN EMPLOYMENT AS SOFTWARE ENGINEER IN USA. IT IS OBSERVED THAT TH E ASSESSEE HAS BEEN BUYING AND SELLING SHARES AS PART OF INVESTMENT ACTIVITY FOR T HE PAST FEW YEARS FROM OWN SURPLUS FUNDS AND THE INTENTION OF THE ASSESSEE IS TO HOLD THE SHARES AS INVESTMENT ACTIVITY. IT IS AN ADMITTED FACT THAT IN THE EARLIER YEARS, T HE INCOME FROM SHARE TRANSACTIONS ITA NO.8614/MUM/2010 SHRI SIDDHARTH UDAY THAMBE ASSESSMENT YEAR: 2007-08 2 HAS BEEN DECLARED AS CAPITAL GAINS BY THE ASSESSEE AND THE SAME HAS BEEN ACCEPTED BY THE DEPARTMENT. THE ASSESSEE HAS BEEN SELLING SH ARES FOR APPRECIATION AND THE INCOME HAS BEEN DECLARED AS LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN DEPENDING UPON THE PERIOD OF HOLDING. CONSIDERING T HE FACT OF THE CASE IN TOTO , MERE VOLUME AND THE MAGNITUDE OF THE TRANSACTION ALONE D OES NOT ESTABLISH THE NATURE OF TRANSACTION AS HELD BY THE TRIBUNAL IN THE CASE OF JANAK S. RANGWALIA V. ACIT (2007) (11 SOT 627), WHICH HAS BEEN RIGHTLY RELIED ON BY THE LD.CIT(A) FOR ARR IVING AT THE CONCLUSION THAT THE IMPUGNED INCOME IS CAPITAL GAINS. IN VIEW OF TH AT MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A ) AND THE SAME IS UPHELD. 4. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JANUARY, 2014. SD/- SD/- (R.C. SHARMA) (DR.S.T.M.PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 22.01.2014 *SKS SR. P.S, COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, E BENCH, ITAT, MUMBAI //BY ORDER// ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI