ACIT CIR 16(1), MUMBAI V. VINOD M. SHAH, MUMBAI

ITA 934/MUM/2011

• Counselvise Citation: 93419914 RSA 2011
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 08-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 02-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI R.S.SYAL , A M TA NO. 934 / MU M / 20 1 1 ( ASSESSMENT YEAR S : 200 7 - 0 8 ) ACIT CIR 16(1) , MUMBAI - 7 VS. SHRI VINOD M. SHAH, 218/220, JAYWANT INTERNATIONAL ESTATE, 2 ND FLOOR, 63, TARDEO ROAD, MUMBAI - 34 PAN/GIR NO. : A AIPS 5669 R ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : MR. ANURAG SHRIVASTAVA /ASSESSEE BY : MR. PARESH SHAPARIA DATE OF HEARING : 8 TH AUGUST , 201 3 DATE OF PRONOUNCEMENT : 21 ST AUGUST , 2013 O R D E R P ER SHRI R.K.G UPTA, JM : THIS APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT AGAINST THE ORDER OF LEARNED CIT(A) - 27 , MUMBAI FOR ASSESSMENT YEAR 2 007 - 08 . 2 . THE DEPARTMENT IS OBJECTING IN DIRECTING TO TREAT RS. 52,42,014/ - AS INCOME UNDER THE HEAD SHORT TERM CAPITAL GAIN AND RS. 10,82,11,495/ - AS INCOME UNDER THE HEAD LONG TERM CAPITAL GAIN INSTEAD OF TREATING THE SAME AS BUSINESS INCOME. THE DEPARTMENT IS ALSO OBJECTING IN FOLLOWING THE DECISION OF THE TRIBUNA L FOR THE ASSESSMENT YEAR 2005 - 06 AS THE DEPARTMENT HAS NOT ACCEPTED THE DECISION AND THE SAME IS SUB - JUDICE. I TA NO. 934 /1 1 2 3 . THE AO TREATED THE SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAIN ON ACCOUNT OF SALE OF SHARES AS BUSINESS INCOME AS IN HIS VIEW THERE ARE FREQUENT PURCHASE AND SALE OF SHARES AND VOLUMINOUS ALSO. ACCORDINGLY, HE TREATED THE ENTIRE SALE CONSIDERATION ON ACCOUNT OF SALE OF SHARES AS BUSINESS INCOME. 4 . DETAILED SUBMISSIONS WERE FILED BEFORE THE CIT(A). CHART OF PURCHASE AND SALE OF SHARES WE RE FILED, PERIOD OF HOLDINGS WERE ALSO EXPLAINED. IT WAS FURTHER SUBMITTED THAT ON SIMILAR FACTS FOR ASSESSMENT YEAR 2005 - 06, THE TRIBUNAL HAS ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE. AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD , LEARNED CIT(A) FOUND THAT ON IDENTICAL FACTS THE TRIBUNAL HAS ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE FOR EARLIER YEAR I.E. FOR ASSESSMENT YEAR 2005 - 06. THE APPEAL FOR ASSESSMENT YEAR 2005 - 06 WAS DECIDED BY THE TRIBUNAL IN ITA NO. 2731/M/2009, VIDE OR DER DATED 26 - 2 - 2010. LEARNED CIT(A) ALSO CONSIDERED THE ISSUE ON MERIT AND FOUND THAT THE ASSESSEE SHOWN PURCHASE OF SHARES UNDER THE HEAD INVESTMENT PORTFOLIO. ACCORDINGLY, THE AO WAS DIRECTED TO ACCEPT THE LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL GA IN AS SHOWN BY THE ASSESSEE. NOW, THE DEPARTMENT IS IN APPEAL HERE BEFORE THE TRIBUNAL. 5 . LEARNED DR PLACED RELIANCE ON THE ORDER OF AO. ON THE OTHER HAND, LEARNED COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE ORDER OF CIT(A) . I TA NO. 934 /1 1 3 6 . AFTER CONSIDERING THE O RDER OF AO & CIT(A) , WE FIND NO INFIRMITY IN THE FINDINGS OF THE LEARNED CIT(A) . WE NOTED THAT LEARNED CIT(A) HAS FOUND THAT SIMILAR ISSUE WAS INVOLVED FOR ASSESSMENT YEAR 2005 - 06 AND THE SAME HAS BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. COP Y OF THE ORDER OF THE TRIBUNAL DECIDED FOR ASSESSMENT YEAR 2005 - 06 IS PLACED IN THE COMPILATION. SINCE THE ORDER OF CIT(A) IS IN CONSONANCE WITH THE ORDER OF THE TRIBUNAL FOR EARLIER YEAR I.E FOR ASSESSMENT YEAR 2005 - 06, THEREFORE, WE SEE NO REASON TO INTE RFERE IN THE FINDINGS OF THE LEARNED CIT(A) AS THE FACTS ARE SIMILAR. ACCORDINGLY, WE CONFIRM THE ORDER OF CIT(A) . 7 . RESULTANTLY , APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF AUG. 201 3 . SD/ - ( ) ( R.S.SYAL ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 21/08 / 2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELL ANT 2. / THE RESPONDENT. 3. / THE C I T(A) , MUMBAI . 4. / C I T 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( /ASSTT. REGISTRAR) / ITAT, MUMBA I