SANJEEV R. CHAWLA, V. DCIT CIR 21(2),

MA 275/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1141 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 22-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 25-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Assessee Lawyers: K SHIVARAM
• Keywords: Business income

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI . .. . . .. . , ,, , ! ! ! ! , ' ' ' ' # $ % # $ % # $ % # $ %, ,, , & ! & ! & ! & ! ' ' ' ' BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER M.A. NO.275/MUM/2013 ARISING OUT OF ITA NO.1622/MUM/2012 ASSESSMENT YEAR-2008-09 MR. SANJEEV R. CHAWLA 102, LEELA APARTMENT S.V. ROAD, VILE PARLE(W) MUMBAI-400049 .. () / APPELLANT * V/S DY. COMMISSIONER OF INCOME TAX RANGE21(2), MUMBAI .... +,() / RESPONDENT !( . / PERMANENT ACCOUNT NUMBER AABPC0945K ASSESSEE BY : MR. K.SHIVARAM REVENUE BY : MR. O.P.SINGH *' . / DATE OF HEARING 22.11.2013 $ /01 . / DATE OF ORDER 22.11.2013 2 M.A. NO.275/MUM/2013 $ $ $ $ / ORDER # $ % # $ % # $ % # $ %, ,, , & ! & ! & ! & ! 2 2 2 2 / PER AMIT SHUKLA, J.M. THIS MISCELLANEOUS APPLICATION U/S 254(2) HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 05.04.2013 PASSED IN ITA NO.166 2/MUM/2013. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT IN PA RA TWO OF THE ORDER, THE TRIBUNAL HAVE OBSERVED THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF SHARES AND SECURITIES, WHEREAS THE ENTIRE CONTROVE RSY IS ABOUT THIS FACT ONLY, WHETHER THE ASSESSEE IS ACTUALLY ENGAGED IN SUCH BU SINESS OR NOT. THE RELEVANT OBSERVATION OF THE TRIBUNAL IS AS UNDER:- BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF TRADING IN SHARES AND SECURITIES, M UTUAL FUNDS AND PORTFOLIO MANAGEMENT.. 3. IT HAS BEEN SUBMITTED BY THE LD. COUNSEL THAT TH E ENTIRE CONTROVERSY IN THE SAID APPEAL RELATES TO WHETHER THE INCOME DERIV ED FROM SALE OF SHARES, MUTUAL FUNDS AND PORTFOLIO MANAGEMENT, IS BUSINESS INCOME OR SHORT TERM CAPITAL GAIN. THE TRIBUNAL HAS OBSERVED THAT ASSES SEE IS ENGAGED IN THE BUSINESS OF TRADING OF SHARES AND SECURITIES WHICH FACT ITSELF IS DISPUTED ISSUE AND IS NOT FACTUAL FINDING OF FACT. THEREFORE, SUC H AN OBSERVATION SHOULD BE RECTIFIED. ON THE OTHER HAND LD. DR STRONGLY OPPOSE D TO SUCH RECTIFICATION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED THE RELEVANT MATERIAL ON RECORD. THE MAIN CONTROVERSY INVOLVED HEREIN THIS CASE WAS, WHETHER THE INCOME DERIVED FROM SALE OF SHARES IS T O BE TREATED AS INCOME FROM CAPITAL GAIN OR BUSINESS INCOME. THE ASSESSING OFF ICER HAS NOTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS TRADING OF SHAR ES AND SECURITIES, MUTUAL FUNDS AND PORTFOLIO MANAGEMENT. HOWEVER THIS OBSER VATION OF THE AO IS THE 3 M.A. NO.275/MUM/2013 SUBJECT MATTER OF DISPUTE. THE TRIBUNAL HAS TAKEN NOTE OF THIS FACT WHILE DEALING WITH THE ISSUES INVOLVED. 5. IN THE CONCLUSION, THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE TRIBUNAL GIVEN IN ASSESSEES OWN CASE IN THE A.Y.2006-07 AND HAS SET-ASIDE THE MATTER TO FILE OF THE AO TO FOLLOW THE ORDER OF THE TRIBUN AL. THE OBSERVATION OF THE TRIBUNAL IN PARA TWO AS POINTED OUT BY THE ASSESSEE IS BASED ON AO OBSERVATION, WHICH ITSELF HAS BEEN DISPUTED BY THE ASSESSEE. AS PER THE MATERIAL PLACED ON RECORD AND THE ASSESSEES CLAIM BEFORE THE AO AND THE CIT(A), IT HAS BEEN STATED THAT THE ASSESSEE HAS MA DE INVESTMENT IN SHARES WHICH HAVE BEEN PURCHASED THROUGH DEMAT ACCOUNT AND IT IS NOT CARRYING ON ANY BUSINESS OF SHARES. THUS, INSTEAD OF THE OBSER VATION GIVEN IN PARA TWO, THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF SHARES AND SECURITIES, MUTUAL FUNDS AND PORTFOLIO MANAGEMENT, THE SAID OBS ERVATION SHOULD NOW BE READ AS , THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM PURCHASE & SALE OF SHARES AND SECURITIES, MUTUAL FUNDS AND INC OME FROM PMS. THUS TO THIS EXTENT THE PARA TWO OF THE TRIBUNAL IS MODI FIED. 6. IN THE RESULT, ASSESSEES MISCELLANEOUS APPLICAT ION IS TREATED AS ALLOWED. $ . 01 3 4 *5 22.11.2013 . 6 ORDER PRONOUNCED IN THE OPEN COURT ON 22.11.2013 SD/- SD/- . . , # $ % , ! & ! P.M.JAGTAP AMIT SHUKLA ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, 4 * 4 * 4 * 4 * DATED: 22.11.2013 F{X~{T? P.S. 4 M.A. NO.275/MUM/2013 $ . + 871 / COPY OF THE ORDER FORWARDED TO : (1) &* 9: / THE ASSESSEE; (2) !' / THE REVENUE; (3) ;() / THE CIT(A); (4) ; / THE CIT, MUMBAI CITY CONCERNED; (5) 7'> +&&* , , / THE DR, ITAT, MUMBAI; (6) ?9 @ / GUARD FILE. ,7 +& / TRUE COPY $* / BY ORDER A / B / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI