ACIT, New Delhi V. Sh. Ashok Wadia, New Delhi

ITA 873/DEL/2012

• Counselvise Citation: 87320114 RSA 2012
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIRTHI LAL
• Assessee Lawyers: H P SINGH ADV APPEAL HEARD ON
• Keywords: Capital asset; Business income; Transactions in derivatives
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI A.N.PAHUJA, ACCOUNTANT MEMBER I.T.A .NO.-873/DEL/2012 ASSESSMENT YEAR-2008-09 ACIT, VS. ASHOK WADIA, CIRCLE-34(1), B-36, MOHAN PARK, NEW DELHI NAVEEN SHAHDARA, NEW DELHI PAN-AAAPK8914F (APPELLANT) (RESPONDENT) APPELLANT BY: SH. PIRTHI LAL, SR. DR RESPONDENT BY: SH. H.P.SINGH, ADV. APPEAL HEARD ON-29.08.2012 ORDER PRONOUNCED ON-31.08.2012 ORDER PER HARI OM MARATHA, JM THIS APPEAL OF THE REVENUE FOR AY 2007-08 IS DIREC TED AGAINST THE ORDER OF LD. CIT(A), NEW DELHI, DATED 04.11.2011. 2. BRIEFLY STATED, THE FACTS OF THE SALE ISSUE RAIS ED IN THIS APPEAL ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING T OTAL INCOME OF RS. 5,38,73,464/-, FROM SALE OF SHARES, FROM PROPERTY A ND FROM INTEREST. IT WAS NOTICED FROM THE P&L A/CIT(A) THAT THE ASSESSEE HAS CLAIMED SHORT TERM CAPITAL GAIN (STCG) AMOUNTING TO RS. 3,10,62,544/- ON SALE OF SHARES. THE EXHAUSTIVE AND NON-DISPUTED LIST OF THE TRANSACTION S IN RESPECT OF WHICH STCG ON SALE OF SHARES OF DIFFERENT COMPANIES HAS B EEN CLAIMED, HAS BEEN I.T.A .NO.-873/DEL/2012 2 INCORPORATED BY LD. CIT(A) IN PARA 6 AT PAGE 14 OF HIS ORDER. THE LIST IS AS UNDER :- PARTIC ULARS OPENING BALANCE AS ON 01.04.2007 NO. OF SHARE S (PUR.) DATE OF PURCHA SE AMOUNT (IN RS.) NO. OF SHARE S (SOLD ) DATE OF SALE AMOUNT (IN RS.) GAIN/(LO SS) SHARE S AMOUN T IDBI LTD. - - 6,000 27.04.2 007 5,06,934 .44 6,000 29.06.20 07 7,03,320 .00 1,96,380 .00 DECC AN AVIAT ION 45,00 0 63,51,1 30.93 - - - 45,00 0 30.05.20 07 59,98,75 9.10 (3,52,37 1.83) IFCI 10,00 0 1,08,30 0.00 - - - 10,00 0 30.05.20 07 4,77,714 .27 3,69,414 .27 REL. CAPIT AL - - 2,000 06.06.2 007 19,61,04 0.22 2,000 08.06.20 07 19,74,65 9.19 13,618.9 7 - - 2,000 08.06.2 007 19,60,74 0.20 2,000 15.06.20 07 20,33,44 3.87 72,703.6 7 SUB TOTAL 86,322.6 4 UNITE D BREW 16,1 80 BONUS ISSUE - - - 3,820 08.06.20 07 23,32,22 4.60 23,32,22 4.60 - - - - - 9,360 14.06.20 07 56,45,39 0.40 56,45,39 0.40 - - - - - 3,000 28.06.20 07 17,80,60 6.25 17,80,60 6.25 SUB TOTAL 97,64,58 3.62 BHAG YA NAGA R NDT. 1,62 ,312 33,06,29 5.44 - - - 12,66 3 06.06.20 07 5,24,474 .75 2,66,556 ,15 - - - - - 52,00 08.06.20 20,73,44 10,14,00 I.T.A .NO.-873/DEL/2012 3 0 07 3.11 0.00 - - - - - 1,500 29.06.20 07 60,177.0 5 29,625.0 0 - - - - - 6,149 02.07.20 07 2,45,894 .68 1,20,643 .38 - - - - - 5,000 02.07.20 07 2,02,390 .06 1,01,100 .00 - - - - - 40,00 0 04.07.20 07 15,90,57 6.29 7,75,600 .00 - - - - - 10,00 0 10.07.20 07 4,09,114 .99 2,05,400 .00 - - - - - 10,00 0 10.07.20 07 4,22,590 .52 2,18,900 .00 - - - - - 5,000 12.07.20 07 2,08,612 .83 1,06,750 .00 - - - - - 20,00 0 16.07.20 07 9,32,265 .96 5,24,800 .00 SUB TOTAL 33,63,54 7.30 GTL INFRAS TRUCTU RE 30,0 00 BONUS ISSUE - - - 30,00 0 29.06.20 07 14,83,89 5.52 14,83,89 5.52 NIIT 125 BONUS ISSUE - - - 125 13.02.20 08 13,105.0 0 13,105.0 0 NIIT TECH NOLOG IES 37 BONUS ISSUE - - - 37 13.02.20 08 4,331.22 2 4,331.22 ALL CARG O - - 20,00 0 07.02.2 008 1,44,16, 714.40 - - - - - - 30,00 0 13.02.2 008 1,97,46, 747.41 50,00 0 15.02.20 08 3,74,12, 500.00 32,49,03 8.19 SUB TOTAL 32,49,03 8.19 DHAN USTEC H - - 10,00 0 13.02.2 008 14,64,00 0.00 10,00 0 10.03.20 08 18,42,20 0.00 3,78,200 .00 UNITY INFRA - - 50,00 0 11.02.2 008 3,61,40, 323.50 50,00 0 12.02.20 08 4,08,26, 291.84 46,85,96 8.34 SHARY AN - - 2,500 24.01.2 008 6,97,770 .00 - - - - I.T.A .NO.-873/DEL/2012 4 RESO URCES - - 2,500 25.01.2 008 7,66,400 .00 5,000 19.02.20 08 13,69,05 0.00 (95,120. 00) - - 10,00 0 01.02.2 008 29,93,95 3.39 - - - - - - 56,00 0 07.03.2 008 1,29,15, 175.98 66,00 0 10.03.20 08 1,67,47, 500.00 8,38,370 .63 SUB TOTAL 7,43,250 .63 TOTAL 2,39,85, 664.90 3. GIVEN THE NATURE OF 26 TRANSACTIONS ABOUT WHICH IT WAS THOUGHT WERE STOCK IN TRADE, , THE ASSESSING OFFICER SOUGHT EXPE NDITURE AS TO WHY THESE SHOULD NOT BE TREATED AS HIS BUSINESS TRANSACTIONS. THE REASONS FOR HIS ABOVE CONCLUSION ARE THAT THESE TRANSACTIONS ARE VERY FRE QUENT AND THAT VARIOUS SCRIPTS HAVE BEEN TRADED ON REGULAR AND RE-CURRENT BASIS WHICH IS DONE ONLY IN CASE OF A BUSINESS. THE ASSESSEE DENIED THIS ALLEG ATION AND TO JUSTIFY HIS CLAIM OF STCG, HE REPLIED AS UNDER:- 'ASSESSEE DECLARED SHORT TERM CAPITAL GAIN (STCG) O F RS.2,39,85,664/- IN HIS ITR. IN RESPECT TO YOUR QUE RY WHY STCG SHOULD NOT BE TREATED AS BUSINESS INCOME. I DRAW YO UR KIND ATTENTION ON RECENT CIRCULAR NO. 4/2007 DATED 15.06.2007 (COP Y ENCLOSED) WHICH CLEARLY MAKES DISTINCTION BETWEEN SHARES HELD AS STOCK IN TRADE AND SHARES HELD AS INVESTMENT. PROFIT IN RESPECT ~F SALE OF SHARES HELD AS STOCK IN TRADE IS A BUSINESS INCOME WHEREAS PROF IT ON SALE OF SHARES HELD AS INVESTMENT IS CAPITAL GAIN. A PERSON CAN BE BOTH 'INVESTOR' AS WELL AS 'TRADER' IN SHARES. THE ASSESSEE HAS TO MAI NTAIN THE DISTINCTION BETWEEN SHARES HELD AS STOCK (TRADING A SSET) AND THOSE HELD I.T.A .NO.-873/DEL/2012 5 AS INVESTMENT (CAPITAL ASSET) IN ITS BOOKS OF ACCOU NTS. ASSESSEE HAS ALWAYS SHOWN ALL INVESTMENT (CAPITAL ASSET) IN SHAR ES UNDER THE HEAD 'INVESTMENT IN SHARES' IN HIS BALANCE SHEET. THEREF ORE ANY INCOME IN RESPECT OF SALE OF SHARES WILL BE CAPITAL GAIN ONLY . THIS CLAIM OF THE ASSESSEE HAD ALSO BEEN ACCEPTED UNDER SCRUTINY ASSE SSMENT IN EARLIER YEARS AND WAS TREATED AS INVESTOR. IT IS WELL SETTL ED LAW THAT PRINCIPLES OF CONSISTENCY SHOULD NOT BE IGNORED. THERE IS A RE CENT JUDGEMENT DATED 26 TH NOVEMBER 2010 OF ITA T MUMBAI IN THE CASE OF DCIT VS. SMK SHARES & STOCK BROKING THAT LARGE VOLUME OF PURCHASE AND SAL E OF SHARES DOES NOT PER SE MEAN ACTIVITY IS BUSINESS . IT AT MUMBAI FOLLOWED THE ABOVE CIRCULAR NOA12007 DATED 15.06.20 07 WHILE DECIDING THE ABOVE CASE. CBDT HAS ADVISED IN THE ABOVE CIRCULAR TO ALL ASSES SING OFFICERS THAT THE ABOVE PRINCIPLE SHOULD BE FOLLOWED IN DETERMINI NG WHETHER, IN A GIVEN CASE, THE SHARES ARE HELD BY THE ASSESSEE AS INVESTMENT (AND THEREFORE GIVING RISE TO CAPITAL GAINS) OR AS STOCK IN TRADE (AND THEREFORE GIVING RISE TO BUSINESS PROFITS). THE ASS ESSING OFFICER ARE FURTHER ADVISED THAT NO SINGLE PRINCIPLE WOULD BE D ECISIVE AND THE TOTAL EFFECT OF ALL THE PRINCIPLES SHOULD BE CONSIDERED T O DETERMINE WHETHER, IN A GIVEN CASE, THE SHARES ARE HELD BY THE ASSESSE E AS INVESTMENT OR STOCK IN TRADE. IN THE CASE OF COMMISSIONER OF INCOME TAX (CENTRAL) , CALCUTTA VS. ASSOCIATED INDUSTRIAL DEVELOPMENT COMPANY (P) LTD. (82 ITR 586), THE SUPREME COURT OBSERVED THAT:- 'WHETHER A PARTICULAR HOLDING OF SHARES IS BY WAY O F INVESTMENT OR FORMS PART OF THE STOCK IN TRADE IS A MATTER WHICH IS WITHIN THE KNOWLEDGE OF THE ASSESSEE WHO HOLDS THE SHARES AND IT SHOULD, IN NORMAL CIRCUMSTANCES, BE IN A POSITION TO PRODUCE E VIDENCE FROM ITS RECORDS AS TO WHETHER IT HAS MAINTAINED ANY DISTINC TION BETWEEN THOSE I.T.A .NO.-873/DEL/2012 6 SHARES WHICH ARE ITS STOCK IN TRADE AND THOSE WHICH ARE HELD BY WAY OF INVESTMENT. RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL PRON OUNCEMENTS:- A) CIT VS. PNB FINANCE & INDUSTRIES (DELHI HIGH COURT) DATED DECEMBER 14, 2010 'THOUGH MAIN OBJECT IS TO DO BUSINESS IN SHARES, SH ARES CAN BE HELD AS CAPITAL ASSET AND NOT STOCK IN TRADE.' B) MADAN GOPAL RADHEY LAL 73 ITR 652 (SC) & VIJAYA BANK 187 ITR 541 (SC) 'THERE IS NO PRESUMPTION THAT EVERY ACQUISITION BY A DEALER IN A PARTICULAR COMMODITY IS ACQUISITION FOR THE PURPOSE OF HIS BUSINESS. A DEALER MAY ACQUIRE A COMMODITY AS A CAP ITAL ASSET.' C) GULMOHAR FINANCE LIMITED 170 TAXMAN 483 (DEL) 'IF SHARES ARE SHOWN AS A CAPITAL ASSET IN THE BALA NCE SHEET FROM THE DATE OF PURCHASE AND NO OBJECTION WAS TAKEN BY THE A.O. IN THE EARLIER YEARS, HE CANNOT HOLD IT TO BE STOCK-IN -TRADE WITHOUT THERE BEING ANY CHANGE IN FACTS' D). ACIT VS. VINOD K. NEVATIA (ITA T MUMBAI) DATED DECEMBER 12TH, 2010 'SHORT PERIOD OF HOLDING SHARES DOES NOT PER SE SUG GEST BUSINESS ACTIVITY.' 'WHETHER THE ASSESSEE'S CONDUCT IS THAT OF AN INVES TOR OR A TRADER DEPENDS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. NO SING LE FACT IS DECISIVE NOR HAS ANY ACID TEST BEEN LAID DOWN IN ANY JUDGEMENT. ' 'PRIMARILY, THE INTENTION WITH WHICH AN ASSESSEE ST ARTS HIS ACTIVITY IS THE MOST IMPORTANT FACTOR. IF SHARES ARE PURCHASED FROM OWN FUNDS, WITH A VIEW TO KEEP THE FUNDS IN EQUITY SHAR ES TO EARN CONSIDERABLE RETURN ON ACCOUNT OF ENHANCEMENT IN TH E VALUE OF I.T.A .NO.-873/DEL/2012 7 SHARE OVER A PERIOD THEN MERELY BECAUSE THE ASSESSE E LIQUIDATES ITS INVESTMENT WITHIN SIX MONTHS OR EIGHT MONTHS WOULD NOT LEAD TO THE CONCLUSION THAT THE ASSESSEE HAD NO INTENTION T O KEEP THE FUNDS AS INVESTED IN EQUITY SHARES BUT WAS ACTUALLY INTEN DED TO TRADE IN SHARES. MERE INTENTION TO LIQUIDATE THE INVESTMENT AT HIGHER VALUE DOES NOT IMPLY THAT THE INTENTION WAS ONLY TO TRADE IN SECURITY.' 'THE ACCEPTANCE OF ASSESSEE'S CLAIM OF L TCG ON SHA RES ALSO IMPLIES THAT A.O. HAS ACCEPTED THE ASSESSEE'S CLAIM REGARDING) HOLDING INVESTMENT PORTFOLIO.' E)RAJA BAHADUR VISHESHWAR SINGH VS. CIT 41 ITR 685 (SC) 'THE MANNER IN WHICH BOOKS ARE KEPT IS AN IMPORTANT PIECE OF EVIDENCE.' F) CIT VS. ESS JAY ENTERPRISES (P) LTD. (2007) 165 TAX MAN 465 (DELHI) 'THE TREATMENT GIVEN TO A TRANSACTION IN THE BOOKS OF ACCOUNT IS OF IMPORTANCE SO THAT ASSESSEE'S INCOME FROM SALE OF S HARES IS FOUND TO BE ASSESSABLE AS CAPITAL GAINS INSTEAD OF BUSINE SS INCOME. IN THIS CASE, THE ASSESSEE HAD SHOWN SHARES AS INVESTM ENTS IN ITS BOOKS OF ACCOUNT.' G) CIT VS. GOPAL PUROHIT (2010)(BOM) 'HELD THAT, THE TRIBUNAL HAD CORRECTLY APPLIED THE PRINCIPAL OF LAW IN ACCEPTING THE POSITION THAT IT WAS OPEN TO AN AS SESSEE TO MAINTAIN TWO SEPARATE PORTFOLIOS, ONE RELATING TO I NVESTMENT IN SHARES AND ANOTHER RELATING TO BUSINESS ACTIVITIES INVOLVING DEALING IN SHARES. THE TRIBUNAL HELD THAT THE DELIV ERY BASED TRANSACTIONS AND THE PROFIT RECEIVED THERE FROM SHO ULD TO TREATED EITHER AS SHORT TERM OR AS THE CASE MAY BE, LONG TE RM CAPITAL GAIN, DEPENDING UPON THE PERIOD OF THE HOLDING. H) DCIT VS. SMK SHARES AND STOCK BROKING (IT AT MU MBAI) DATED 24TH NOVEMBER 10 'LARGE VOLUME OF PURCHASE & SALE OF SHARES DOES NOT PER SE IMPLY I.T.A .NO.-873/DEL/2012 8 BUSINESS.' 7. THE ASSESSEE, A BROKER IN THE BSE, DISCLOSED SHO RT-TERM CAPITAL GAINS AND LONG-TERM CAPITAL GAINS ON SALE OF SHARES . THE AO HAS ACCEPTED THE LTCG AS SUCH THOUGH HE HAS HELD THAT THE STCG W AS ASSESSABLE AS HIS 'BUSINESS PROFITS' ON THE GROUND THAT THE ASSES SEE WAS A STOCK BROKER & THERE WAS LARGE VOLUME AND FREQUENCY (MORE THAN 3 00) TRANSACTIONS. ON APPEAL, THE CIT (A) REVERSED THE FINDING OF AO. ON APPEAL BY THE DEPARTMENT TO THE TRIBUNAL, DISMISSING THE APPEAL, IT WAS HELD: (I) IT IS NO MORE RES INTEGRA THAT A PERSON CAN BE BOTH 'INVESTOR' AS WELL AS 'TRADER' IN SHARES. (DRAFT INSTRUCTION N O. 2005, INSTRUCTION NO. 1827 DATED 31.8.1989 & CIRCULAR NO. 4/2007 DATED 15.6.2007 REFERRED). THE ASSESSEE HAS TO MAIN TAIN THE DISTINCTION BETWEEN SHARES HELD AS STOCK AND THOSE HELD AS INVESTMENTS IN ITS RECORDS; (II) WHILE VOLUME OF TRANSACTIONS IS AN IMPORTANT I NDICATOR OF THE INTENTION OF THE ASSESSEE WHETHER TO DEAL IN SHARES AS TRADING ASSET OR TO HOLD THE SHARES AS INVESTOR, IT IS CERTAINLY NOT THE SOLE CRITERION. THE AO'S CONCLUSION THAT SINCE SALE AND PURCHASE HAD BEEN DETERMINED BY THE VOLATILITY IN THE MARKET, TH E SAME IS AGAINST THE BASIC FEATURE OF INVESTOR IS NOT BASED ON SOUND RATIONAL REASONING. A PRUDENT INVESTOR ALWAYS KEEPS A WATCH ON THE MARKET TRENDS AND, THEREFORE, IS NOT BARRED UND ER LAW FROM LIQUIDATING HIS INVESTMENTS IN SHARES. THE LAW ITSE LF HAS RECOGNIZED THIS FACT BY TAXING THESE TRANSACTIONS U NDER THE HEAD 'SHORT TERM CAPITAL GAINS'. IF THE AO'S REASONING I S ACCEPTED, THEN IT WOULD BE AGAINST THE LEGISLATIVE INTENT ITS ELF; (III) THE FACT THAT THE ASSESSEE DID NOT BORROW FUN DS FOR INVESTMENT IN SHARES IS AN IMPORTANT ASPECT WHICH C ANNOT BE LOST SIGHT OFF WHILE DECIDING THE TRUE INTENTION OF THE ASSESSEE; (IV) THE FACT THAT THE AO ACCEPTED THE ASSESSEE'S C LAIM IN EARLIER YEARS THAT IT WAS AN INVESTOR IS MATERIAL BECAUSE T HOUGH THE PRINCIPLES OF RES JUDICATA DO NOT STRICTLY APPLY TO INCOME TAX I.T.A .NO.-873/DEL/2012 9 PROCEEDINGS IT IS WELL SETTLED LAW THAT THE PRINCIP LES OF CONSISTENCY SHOULD NOT BE IGNORED. UNIFORMITY IN TR EATMENT AND CONSISTENCY UNDER THE SAME FACTS AND CIRCUMSTANCES IS ONE OF THE FUNDAMENTALS OF THE JUDICIAL PRINCIPLES WHICH CANNO T BE BRUSHED ASIDE WITHOUT PROPER REASON; (V) THE FACT THAT THE AO ACCEPTED THE OFFERING OF L TCG ALSO SHOWED THAT THE ASSESSEE'S STATUS AS INVESTOR WAS A CCEPTED BY HIM. (VI) SOME PART OF THE STCG HAD ARISEN OUT THE EARLI ER INVESTMENT WHICH HAD BEEN ACCEPTED AS BEING ON INVESTMENT ACCOUNT. AS THE MODUS OPERANDI OF THE ASSESSEE REMAINED THE SAME IN REGAR D TO OTHER SHARES PURCHASED DURING THE YEAR, THE ASSESSE E'S CLAIM COULD NOT BE NEGATED ONLY ON THE BASIS OF FREQUENCY OF THE, TRANSACTION (GOPAL PUROHIT 228 CTR 582 (BORN), SADH ANA NABERA 41 DTR 393 & JAYSHREE PRADIP SHAH CONSIDERED). I) IN CIRCULAR DATED IS' JUNE 2007, THE CBDT HAS EMPHASIZED THAT IT IS POSSIBLE FOR A TAX PAYER TO HAVE TWO PORTFOLI OS I.E. AN INVESTMENT PORTFOLIO AND A TRADING PORTFOLIO AND INCOME UNDER THE HEAD CAPITAL GAINS AS WELL AS BUSINESS INCOME. 4. BUT THE ASSESSING OFFICER WAS NOT AGREEABLE WITH THE ASSESSEE AND WITH REFERENCE TO VARIOUS DECISIONS AND CONSIDERING THE RELEVANT REPLY OF THE ASSESSEE, HE HAS FINALLY CONCLUDED AS UNDER :- A)'THE ASSESSEE HAS CHOSEN TO TAKE UNDUE BENEFIT OF THE AMENDED PROVISIONS OF THE ACT VIS-A-VIS THE QUANTUM OF ACTI VITY TO THE PERIOD PRIOR TO AMENDMENT' IN THIS RESPECT APPELLANT SUBMITS THAT THERE IS NO AMENDMENT IN THE PROVISIONS OF THE ACT IN RESPECT TO TREATMENT O F CAPITAL GAINS I.T.A .NO.-873/DEL/2012 10 ON SHARES. HOWEVER, APPELLANT HAS RELIED UPON RECEN T CIRCULAR NO. 4/2007 DATED 15.06.2007. IT SEEMS THAT THE LD. A.O. IS CONFUSED AND CONSIDERING THIS RECENT CIRCULAR AS AMENDMENT IN TH E PROVISIONS OF THE ACT WHICH IS INCORRECT. B)'THE TREATMENT GIVEN TO THE SHARES TRANSACTION BY THE ASSESSEE COMPANY IS QUIET ARBITRARY AND IS JUST TO SUIT ITS CONVENIENCE WITH AN EYE TO REDUCE TAX LIABILITY. THE ASSESSEE H AS PARKED SHARES ACCORDINGLY AND THERE IS NO PLAUSIBLE LOGIC FOR SUCH ACTION. IN THIS RESPECT APPELLANT SUBMITS THAT HE HAS A LWAYS SHOWN SHARES AS INVESTMENT IN THE BALANCE SHEET/BOOKS OF ACCOUNT. HE HAS NEVER SHOWN ANY SHARES IN THE BALANCE SHEET/BOO KS OF ACCOUNT AS STOCK-IN-TRADE AND THE TREATMENT GIVEN T O A TRANSACTION IN THE BOOKS OF ACCOUNT IS IMPORTANT FR OM THE VIEW THAT ANY INCOME FROM SALES OF SHARES WOULD ALWAYS B E ASSESSABLE AS CAPITAL GAINS INSTEAD OF BUSINESS INC OME. C)'MAJORITY OF THE SHARES HAVE BEEN ACQUIRED, HAVE DISPOSED OFF IN A VERY SHORT PERIOD OF TIME AND BY ANY YARD-STIC K THEY CANNOT BE CONSIDERED AS INVESTMENT. THE FREQUENCY AND VOLU ME OF TRANSACTION IN THE INSTANT CASE GIVE AN IMPRESSION AND IS A STRAIGHT POINTER TO THE FACT THAT THE ASSESSEE DID NOT INTEND TO ACQUIRE THE SHARES WITH INVESTMENT MOTIVE. IN THE C ASE OF AN INVESTMENT A PERSON USUALLY WATCHES THE MARKET OVER A LONGER PERIOD OF TIME BEFORE THE SELLING OF THE SHARES.' IN THIS RESPECT APPELLANT SUBMITS THAT AS PER RECE NT CIRCULAR NO4/2007 DATED 15.06.2007 AND VARIOUS ABOVE JUDICIA L PRONOUNCEMENTS, SHORT PERIOD OF HOLDING AND LARGE VOLUME OF PURCHAS E & SALE OF SHARES DOES NOT PER SE SUGGEST BUSINESS ACTIVITY. WHILE VOLUME OF TRANSACTIONS IS AN IMPORTANT INDICA TOR OF THE INTENTION OF THE ASSESSEE WHETHER TO DEAL IN SHARES AS TRADING ASSET OR TO I.T.A .NO.-873/DEL/2012 11 HOLD THE SHARES AS INVESTOR, IT IS CERTAINLY NOT TH E SOLE CRITERION. THE AO'S CONCLUSION THAT SINCE SALE AND PURCHASE HAD BEEN DETERMINED BY THE VOLATILITY IN THE MARKET, TH E SAME IS AGAINST THE BASIC FEATURE OF INVESTOR IS NOT BASED ON SOUND RATIONAL REASONING. A PRUDENT INVESTOR ALWAYS KEEPS A WATCH ON THE MARKET TRENDS AND, THEREFORE, IS NOT BARRED UND ER LAW FROM LIQUIDATING HIS INVESTMENTS IN SHARES. THE LAW ITSE LF HAS RECOGNIZED THIS FACT BY TAXING THESE TRANSACTIONS UNDER THE HEAD 'SHORT TERM CAPITAL GAINS'. IF THE AO'S REASONING I S ACCEPTED, THEN IT WOULD BE AGAINST THE LEGISLATIVE INTENT ITS ELF. HOWEVER IN THIS CASE VOLUME OF TRANSACTION IS VERY NEGLIGIBLE. IN MORE THAN 90% CASES THERE IS ONLY ONE TRANSACTIO N OF SALE AND PURCHASE OF SHARES. D)'CERTAIN TRANSACTION INVOLVING MAJORITY OF SALES AND PURCHASES WERE COMPLETED ON THE VERY SAME DAY.' IN THIS RESPECT APPELLANT SUBMITS THAT THERE IS NOT EVEN SINGLE TRANSACTION OF PURCHASE AND SALE OF SHARES ON THE V ERY SAME DAY . THE SAME IS ALSO EVIDENT FROM THE COPY OF LEDGER A/CS OF SHARES SCRIPTS OF ALL SALE AND PURCHASE WHICH WERE SUBMITTED DURING ASSESSMENT PROCEEDING AND IS AGAIN SUBMITTED . 5. ULTIMATELY, HE HAS TREATED THE ENTIRE CLAIM OF S TCG ARISING ON SALE OF SHARES AT RS. 2,39,85,664/- AS ASSESSEES BUSINESS INCOME. THIS FINDING OF LD. ASSESSING OFFICER WAS CHALLENGED BEFORE LD. CIT (A), INTER ALIA, WHO HAS ALLOWED THIS CLAIM OF THE ASSESSEE AND HAS ACCEPTED THE CONTENTION OF THE ASSESSEE BY TREATING THE ENTIRE SUM OF RS. 2,39,85, 664/- AS STCG. NOW THE REVENUE IS AGGRIEVED AND HAS FILED THIS APPEAL. WE HAVE HEARD RIVAL I.T.A .NO.-873/DEL/2012 12 SUBMISSIONS AND HAVE CAREFULLY CIRCUMSPECTED THE EN TIRE RECORD AND HAVE ALSO TREADED THROUGH THE DECISIONS RELIED ON BY THE PART IES. 6. THE MAIN CONTENTION OF LD. DR SH. PIRTHI LAL, IS THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACTS OF THE CASE CORRECTL Y AND SO ALSO HAS FAILED TO APPLY THE CASE LAW PROPERLY ON THE DISPUTED. ACCO RDING TO HIM, THE INTENTION OF THE ASSESSEE, THE STOCK SUMMARY OF SCRIPTS PURC HASED AND SOLD DURING THE YEAR COUPLED WITH THE PATTERNED SEQUENCE OF BEHAVIO UR IN INTRANSACTING THE SHARES HAS CLEARLY ESTABLISHED THAT THE ASSESSEE WA S TRADING IN SHARES AND WAS NOT SIMPLICITOR AN INVESTOR IN SHARES. ON THE OTHE R HAND, LD. AR, SH. H.P.SINGH HAS SUPPORTED THE FINDINGS AND REASONING GIVEN BY LD. CIT(A). HE HAS SPECIFICALLY RELIED ON DECISION OF DELHI E BE NCH RENEDERED IN THE CASE OF NARENDRA GEHLAUT VS ACIT IN ITA NO. 1648/DEL/20 10 AY 2006-07, ORDER DATED 30.04.2012. 7. AFTER COGITATING RIVAL SUBMISSIONS IN THE LIGHT OF THE AVAILABLE EVIDENCE ON RECORD, WE SAFELY ARRIVE AT A CONCLUSION THAT TH ERE CAN BE NO SINGLE FACTOR TO DETERMINE THE NATURE OF SUCH TRANSACTIONS, IPSO FACTO. IT BE DETERMINED QUANTUM OF TRANSACTIONS, FREQUENCY OF TRANSACTIONS, INTENTION OF THE ASSESSEE HAVE TO BE TAKEN INTO CONSIDERATION. THERE CAN BE OTHER CASE SPECIFIC CIRCUMSTANCES WHICH CAN CONTRIBUTE TO DETERMINE THE EXACT NATURE OF SUCH TRANSACTIONS. 8. WE HAVE NOTICED THAT THE ASSESSEE CONDUCTED 26 S UCH TRANSACTIONS DURING THE RELEVANT PERIOD AND IN SOME MONTHS, THER E WAS NO ANY TRANSACTIONS I.T.A .NO.-873/DEL/2012 13 WAS CONDUCTED. WE HAVE SEEN THE DETAIL OF TRANSACT IONS, HEREIN ABOVE CHART. IT WAS NOTICED THAT THE ASSESSEE HAS EARNED DIVIDEN D INCOME OF RS. 2,88,801/- DURING THE YEAR WHICH IS BASED ON HOLDING OF ALL SH ARES ON THE RECORD DATE . THERE CAN NOT BE ANY DIVIDEND INCOME ON SHARES SOLD BEFORE THE RECORD DATE OR PURCHASED AFTER THE RECORD DATE DURING THE RELEV ANT YEAR. THE AMOUNT OF DIVIDEND INCOME CAN NOT BE COMPARED WITH THE AMOUNT OF CAPITAL GAINS BECAUSE EARNING OF BOTH DEPEND ON ALTOGETHER DIFFER ENT FACTORS. IT IS FOUND THAT IN MORE THAN 90% CASES, THERE HAS BEEN ONLY ON E TRANSACTION OF SALE AND PURCHASE. THE ASSESSEE HAS ALWAYS SHOWN THE INVEST MENT (CAPITAL ASSET) IN SHARES UNDER THE HEAD INVESTMENT IN SHARES IN HIS BALANCE SHEET. THE FACTUM THAT THE ASSESSING OFFICER HAS ACCEPTED LONG TERM CAPITAL GAIN (LTCG) IS ALSO SIGNIFICANT TO DETERMINE THE NATURE OF THIS INCOME, CONCOMITANTLY. AS WE HAVE MENTIONED ABOVE THE CUM ULATIVE GIST OF RATIO- DECIDENDI OF NUMEROUS CASE-LAWS IS THAT EVEN THE LA RGE VOLUME OF PURCHASE AND SALE OF SHARES MAY NOT, PER SE, RESULT IN BUSIN ESS ACTIVITY OF THE ASSESSEE. 9. THERE IS MAJOR DIFFERENCE BETWEEN THE SHARES HEL D AS STOCK IN TRADE AND SHARES HELD AS INVESTMENT. THE SALE OF SHARES HELD AS STOCK-IN-TRADE RESULTS INTO A BUSINESS INCOME, WHEREAS PROFIT ON SALE OF S HARES HELD AS INVESTMENT WILL GIVE RISE TO CAPITAL GAINS. IT IS TRUE THAT ONE CAN BE BOTH A INVESTOR AS WELL AS TRADER IN SHARES AT A GIVEN POINT OF TIME . BUT THE ASSESSEE HAS TO MAINTAIN SUCH A DISTINCTION BETWEEN SHARES SO HELD IN THE BOOKS OF ACCOUNTS. IN THIS REGARD, REFERENCE CAN BE MADE TO CBDT CIRCU LAR NO-4/2007 DATED I.T.A .NO.-873/DEL/2012 14 15.06.2007, WHICH CLEARLY SPEAKS ABOUT SUCH A DISTI NCTION. IN THIS CASE, THE ASSESSEE HAS ALWAYS SHOWN ALL INVESTMENT IN SHARES UNDER THE HEAD INVESTMENT IN SHARES IN HIS BALANCE SHEET, THE UN DISPUTED FACT WHICH WE HAVE ALREADY MENTIONED IN THE FORMER PART OF THIS O RDER. THUS, WE FAIL TO UNDERSTAND AS HOW THE INCOME IN RESPECT OF SALE OF SHARES IN QUESTION CAN BE TREATED AS BUSINESS INCOME. SIMILAR CLAIM MADE B Y THIS ASSESSEE IN THE EARLIER AYS HAVE BEEN ACCEPTED AS STCG, WHILE FRAMI NG ASSESSMENT U/S 143(3) OF THE ACT. MOREOVER, THE DISTINCTION BETWE EN THE TWO TYPES OF NOMENCLATURES WHETHER INVESTMENT OR BUSINESS CA N BE CLEARLY SPELT OUT BY THE ASSESSEE HIMSELF. BY IGNORING ALL THE RELEVANT PARAMETERS WHICH, WE HAVE MENTIONED ABOVE, THE ASSESSING OFFICER CANNOT BASE HIS DECISION ON FLIMSY GROUNDS TO ARRIVE AT HIS ABOVE CONCLUSION. THE INT ENTION OF THE ASSESSEE IS CLEARLY MANIFEST FROM THE TREATMENT GIVEN BY HIM TO SUCH INVESTMENT IN HIS BOOKS OF ACCOUNTS. 10. FURTHER, WE CAN TAKE SUPPORT OF THE DECISION IN THE CASE OF NARENDRA GEHLAUT (SUPRA) RELIED ON BY LD. AR WHOSE PARAGRAPH 5.4 TO 5.11 WHICH ARE DIRECTLY RELEVANT FOR THE PURPOSE AND FOR READY REF ERENCE, WE ARE EXTRACTING THE SAME HEREIN AS BELOW:- 5.4. ACCORDING TO ASSESSEE THE CIRCULAR EMPHASIZES AND A DVICES THE ASSESSING OFFICER THAT NO SINGLE SPECIFIC PRINC IPLE SHOULD BE APPLIED, IMPLYING THAT THE AO SHOULD APPRECIATE ALL THE FACTS IN SUCH MANNER. ASSESSEE HAS MAINTAINED ACCOUNTS BY TREATIN G DELIVERY BASED SHARES INCOME AS CAPITAL INVESTMENT AND CAPITAL INC OME. ASSESSEE HAS I.T.A .NO.-873/DEL/2012 15 ENTERED INTO THE TRANSACTION WITH LIMITED NUMBER OF THE COMPANIES I.E. 8 THROUGHOUT THE YEAR. BESIDES THE AVERAGE NUMBER O F TRANSACTIONS IN ONE MONTH ON ACCOUNT OF SUCH SHARE DEALINGS IS 8. T HIS HAS BEEN WRONGLY EXTRAPOLATED BY AO TO MORE NUMBER OF TRANSA CTIONS ADOPTING BROKER'S PURCHASES. 5.5. IN THE CASE OF 2 PORTFOLIOS, AN EVENTUALITY MAY ARI SE, LIKE AN ASSESSEE DEALS IN THE SHARES OF TELCO, SOME ARE CRE DITED TO TRADING ACTIVITY AND SOME MAY BE ACCOUNTED FOR ON CAPITAL I NVESTMENT. THE LAW AND CBDT CIRCULAR PERMITS THAT IN SUCH CASES AC COUNTING ENTRY WILL DETERMINE THE NATURE OF ASSESSEE'S INCOME. WHE N THE CBDT CIRCULAR AND VARIOUS CASE LAWS ALLOW SUCH TYPE OF E VENTUALITY, IN OUR VIEW THE ASSESSEE HAS A STRONGER CASE. LOOKING AT T HE ACCOUNTING TREATMENT, LIMITED NUMBER OF COMPANIES DEALT IN AND LIMITED NUMBER OF TRANSACTIONS PER MONTH, IN OUR CONSIDERED VIEW T HE ASSESSEE'S CLAIM OF CAPITAL INVESTMENT CANNOT BE DENIED. 5.6. COMING TO THE REVENUE'S OBJECTION THAT THE ASSESSEE BORROWED THE FUNDS FROM INDIA BULLS FINANCIAL SERVI CES LTD., IN OUR VIEW, THIS CANNOT CONSTITUTE A FACTOR AS IN NONE OF THE CASE LAWS OR CBDT CIRCULAR IT HAS BEEN HELD THAT BORROWINGS WILL NOT BE ALLOWED IN INVESTMENT TRANSACTIONS. IN OUR VIEW THE INVESTMENT IN CAPITAL ASSETS ALSO CAN BE CARRIED OUT BY WAY OF BORROWED FUNDS. T HERE BEING NO BAR NOTIFIED BY THE LAW, JUDICIAL PRONOUNCEMENT OR CBDT CIRCULAR, WE ARE UNABLE TO ACCEPT THIS VIEW. 5.7. HON'BLE DELHI HIGH COURT IN THE CASE OF ESS JAY ENT ERPRISES (P) LTD. (SUPRA), WAS SEIZED WITH SIMILAR CONTROVER SY AS IN THAT CASE THE SHARES WERE TREATED AS INVESTMENT AND WERE NOT CONSIDERED STOCK IN TRADE OR BUSINESS. THOUGH THE ASSESSEE WAS RUNNI NG A RESTAURANT AND ONE OF THE BUSINESS OBJECT OF THE ASSESSEE COMP ANY WAS PURCHASE I.T.A .NO.-873/DEL/2012 16 AND SALE OF SHARES. WHEN A COMPANY HAVING A RESTAUR ANT WITH AN OBJECT OF SELLING AND PURCHASING THE SHARES BY WAY OF BUSINESS CAN BE ELIGIBLE TO HOLD THE SHARES ON INVESTMENT ACCOUNT, WE SEE NO JUSTIFICATION IN HOLDING THE CAPITAL GAINS AS BUSIN ESS INCOME WHEN INVESTMENT ACCOUNT IS SEPARATELY MAINTAINED. OUR VI EW IS FURTHER SUPPORTED BY HON'BLE BOMBAY HIGH COURT JUDGMENT IN THE CASE OF GOPAL PUROHIT (SUPRA) AND ITAT CHANDIGARH BENCH JUDGMENT IN THE CASE OF VESTA INVESTMENTS & TRADING CO. (P) LTD. (S UPRA). 5.8. ITAT DELHI BENCH 'B' VIDE JUDGMENT DATED 30-9-2011 IN THE CASE OF M/S DYNAMIC CONSULTANTS PVT. LTD. VS. ACIT RENDERED IN ITA NO.2694/DEL/09, TO WHICH BOTH OF US (JM & AM)WERE P ARTY, HAS DECIDED SIMILAR ISSUE AND HELD AS UNDER: 9. WE HAVE HEARD BOTH THE PARTIES. THE ASSESSING OF FICER HAS TREATED THE PURCHASE AND SALE OF SHARES AS CONTINUO US ACTIVITY OF THE ASSESSEE. IN THE CASE BEFORE US, THERE IS NO DI SPUTE ABOUT THE FACT THAT THE SHARES PURCHASED WERE TRANSFERRED TO DE-MAT ACCOUNT. THE ID. CL'I' (A) HAS HELD THAT WHERE THE PERIOD OF HOLDING IS MORE THAN SIX MONTHS, THE TRANSACTION WI LL BE IN THE NATURE OF CAPITAL GAINS AND WHERE IT IS LESS THAN S IX MONTHS: IT WILL BE IN THE NATURE OF BUSINESS. LONG TERM CAPITA L GAIN HAS BEEN DEFINED UNDER SECTION 2(29B) OF THE ACT AND ME ANS CAPITAL GAIN ARISING FROM TRANSFER OF A LONG TIME ASSET. LO NG TERM CAPITAL ASSET HAS BEEN DEFINED UNDER SECTION 2(29A) AND MEANS A CAPITAL ASSET WHICH IS NOT A SHORT TERM CAPITAL A SSET. SECTION 2(42A) DEFINES SHORT TERM CAPITAL ASSET TO MEAN A C APITAL ASSET WHICH IS HELD BY AN ASSESSEE FOR NOT MORE THAN 36 M ONTHS IMMEDIATELY PRECEDING ITS DATE OF TRANSFER. HOWEVER , IN RESPECT OF SHARES THE SHORT TERM CAPITAL ASSET WOULD MEAN T HAT SUCH SHARES ARE HELD BY THE ASSESSEE FOR NOT MORE THAN 1 2 MONTHS. THE ID. CIT (A), HOWEVER, TREATED THE SHORT TERM CA PITAL GAINS IN RELATION TO SHARES, WHICH HAVE BEEN HELD BY THE ASS ESSEE MORE THAN SIX MONTHS AND THE SHARES HELD FOR LESS THAN S IX MONTHS HAVE BEEN TREATED AS BUSINESS INCOME. THIS, IN OUR OPINION, IS NOT IN ACCORDANCE WITH THE PROVISIONS OF LAW. THE A SSESSEE HAD TREATED THE SHARES IN ITS BOOKS OF ACCOUNTS AS INVE STMENTS AND NOT STOCK IN TRADE. THE ASSESSEE HAD RECEIVED DELIV ERY OF SHARES I.T.A .NO.-873/DEL/2012 17 AND HAVE BEEN DEPOSITED IN DE-MAT ACCOUNT. MERELY B ECAUSE THE SHARES ARE SOLD WITHIN THE SHORT SPAN OF ONE TO TWO MONTHS WOULD NOT CHANGE THE CHARACTER OF CAPITAL GAINS TO THE BUSINESS INCOME. THE ASSESSEE HAS ONLY 19 TRANSACTIONS DURIN G THE YEAR IN RESPECT OF SHARES OF 16 COMPANIES. THEREFORE, IN OUR CONSIDERED OPINION, THE ID. CIT (A) WAS NOT JUSTIFI ED IN TREATING THE SHARES HELD FOR LESS THAN SIX MONTHS AS BUSINES S ASSETS. HOWEVER, HE HAS TREATED THE SHARES HELD FOR MORE TH AN ONE YEAR AS LONG TERM CAPITAL ASSETS. IN VIEW OF THE ABOVE F ACTS. IN OUR CONSIDERED OPINION. THE ID. CIT (A) IS JUSTIFIED IN TREATING THE SHARES AS LONG TERM CAPITAL GAINS WHICH WERE HELD F OR MORE THAN ONE YEAR. AS REGARDS THE SHARES HELD FOR PERIOD LES S THAN SIX MONTHS, IN OUR CONSIDERED OPINION, THE VIEW TAKEN B Y THE ID. CIT (A) IS CONTRARY TO THE PROVISIONS OF LAW. THERE FORE. WE ARE NOT IN AGREEMENT WITH THE VIEWS OF THE ID. CIT (A). 10. IN THE CASE OF CIT VS. GULMOHAR FINANCE LTD. (S UPRA) WHERE THE ASSESSEE HAD SHOWN THE SHARES AS INVESTME NTS IN THE BALANCE SHEET IN THE EARLIER YEARS AND NO OBJECTION WAS TAKEN TO THIS POSITION. HON'BLE DELHI HIGH COURT HAS UPHELD THE ORDER OF THE TRIBUNAL HOLDING THAT SHARES WERE HELD AS INVES TMENT. IN THE CASE OF ESS JAY ENTERPRISES P. LTD. (SUPRA) HON'BLE DELHI HIGH COURT HAS ALSO HELD THAT THE ASSESSEE HAVING SHOWN THE SHARES AS INVESTMENT IN THE BOOKS OF ACCOUNT AND THERE WAS NO MATERIAL ON RECORD TO SHOW THAT THE SAME WERE CONVERTED INTO ST OCK IN TRADE, HON'BLE DELHI HIGH COURT UPHELD THE STAND TAKEN BY THE ITAT THAT THE PROFITS ARISING ON SALE OF SHARE WAS ASSES SABLE AS CAPITAL GAINS AND NOT AS BUSINESS INCOME. IN THE CASE BEFOR E US THE ID. AO HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW T HAT THE SHARES WERE NOT HELD BY THE ASSESSEE AS INVESTMENT. THEREFORE, IN OUR CONSIDERED OPINION, THE PROFITS ARISING ON S ALE OF SHARES HELD AS INVESTMENT WILL BE ASSESSABLE AS CAPITAL GA INS DEPENDING UPON THE PERIOD OF HOLDING AS LONG TERM OR SHORT TE RM CAPITAL GAIN. ACCORDINGLY, WE ALLOW THIS GROUND OF APPEAL I N FAVOUR OF ASSESSEE. 5.9. THIS ORDER HAS BEEN UPHELD BY HON'BLE DELHI HIGH CO URT IN APPEAL NOS. 200 & 201/2012 BY ORDER DATED 9-4-2012. FOLLOWING THE SAME ANALOGY IN PRESENT CASE, WE HOLD THAT PROF ITS ARISING ON SALE OF DELIVERY BASED SHARES AND COMMODITIES ARE T O BE HELD AS INVESTMENT AND ARE TO BE ASSESSED AS SHORT TERM CAP ITAL GAINS. 5.10. IN VIEW OF THE FOREGOINGS, WE ARE OF THE VIEW THAT GROUND IN RESPECT OF DELIVERY BASED SHARE TRANSACTIONS, IN VESTMENT AND CAPITAL LOSS IN RESPECT OF COMMODITY TRANSACTIONS O N DELIVERY BASIS BOTH ARE TO BE HELD ON ACCOUNT OF SHORT TERM CAPITAL GAIN INCOME AND SHORT TERM CAPITAL LOSS RESPECTIVELY. TH US, THE I.T.A .NO.-873/DEL/2012 18 GROUNDS OF THE ASSESSEE ARE ALLOWED. 5.11. SINCE, WE HAVE HELD THE INCOME TO BE CAPITAL IN NATURE, THE DIRECTION OF LD. CIT(APPEALS) ABOUT VERIFYING THE P AYMENT OF INTEREST TO INDIABULLS FINANCIAL SERVICES LTD. BECO MES INFRUCTUOUS. CONSEQUENTLY, REVENUE'S APPEAL IS DISM ISSED AS RENDERED INFRUCTUOUS. 11. ACCORDINGLY, THE ONLY IRRESTIBLE CONCLUSION WHI CH WE CAN DRAW FROM THE ENTIRE FACTS OF THE CASE AND IN VIEW OF OUR AFO REMENTIONED REASONS, IS THAT THE ASSESSEE HAS ONLY MADE INVESTMENT IN SHARES A ND HAS NOT DONE A BUSINESS BY TRADING IN THEM. 12. ACCORDINGLY, WE DO NOT FIND ANY FALLACY IN THE IMPUGNED FINDING AND THUS THE REVENUE FAILS ON THIS ISSUE. 13. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.08.2012. SD/- SD/- (A.N.PAHUJA) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31/08/2012 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI I.T.A .NO.-873/DEL/2012 19 I.T.A .NO.-873/DEL/2012 20