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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI
Before: SHRI H. S. SIDHU
ORDER This appeal is filed by the assessee against the Order dated 26.4.2018 passed by the Ld. CIT(A)-11, New Delhi relating to Assessment Year 2015-16 on the following grounds:-
1. On the facts and circumstances of the case the appellate order passed by Commissioner of Income Tax (Appeals)-11, New Delhi (here in after referred to as "CIT(A)") is bad both in law and on facts).
2. The CIT (A) has erred in assuming that the appellant is engaged in trading of shares and derivatives, without considering the fact that the appellant is actually working as a Whole time Director.
3. The CIT (A) has based his judgment and passed the order solely on the wrong observations and assumptions made by the Assessing Officer ('AO') without appreciating the documents submitted before the AO
and before himself during the assessment/appellate proceedings.
That both the CIT (A) and AO have passed the impugned orders ignoring the submissions and documents furnished by the assessee that he acted as a normal investor and held the shares as investment with the motive of earning dividend income and there was no motive of converting investing in shares into a fulfledged business.
5. That the AO erred in assuming that the appellant has himself claimed to be engaged in trading of shares, and the CIT (A) also agreed to this wrong fact of AO, even ignoring the submissions made by the assessee before the AO that the appellant is engaged in employment as a Whole Time Director.
That both the CIT (A) and AO erred in not appreciating the fact that a Whole time employee of the company cannot be engaged at the same time in any sort of business activity.
That the intention of the assessee had been only to invest its savings in shares and securities for wealth creation via portfolio managers. However both the CIT (A) and AO have passed the impugned orders based upon sole presumption that the frequency and volume of the transactions are such that it should be treated as "Income from business" ignoring the submissions of the appellant.
That the appellant craves your honor to add, delete, substitute any' during the course of appellate proceedings.
At the time of hearing, Ld. Counsel for the assessee stated that Ld. CIT(A) has based his judgment and passed the order solely on the wrong observations and assumptions made by the Assessing Officer without appreciating the documents submitted before the AO and before himself during the assessment/appellate proceedings. He further submitted that Ld. CIT(A) and AO have passed the impugned orders ignoring the submissions and documents furnished by the assessee that he acted as a normal investor and held the shares as investment with the motive of earning dividend income and there was no motive of converting investing in shares into a fullfledged business. He further submitted that AO erred in assuming that the assessee has himself claimed to be engaged in trading of shares, and the CIT(A) also agreed to this wrong fact of AO, even ignoring the submissions made by the assessee before the AO that the assesssee is engaged in employment as a Whole Time Director.
Therefore, he requested to set aside the issues in dispute to the file of the Ld. CIT(A) with the directions to decide the same after considering all the evidences/ documents and give full adequate opportunity of being heard to the assessee.
On the contrary, Ld. DR did not raise any serious objection on the request of the ld. Counsel for the assessee.
4. I have heard both the parties and perused the records available with me especially the impugned order passed by the Ld. CIT(A). I find considerable cogency in the contention of the ld. Counsel for the assessee that Ld. CIT(A) has passed the order without appreciating the documents submitted before the lower authorities. Keeping in view of the fact and circumstances of the case, the issues in dispute are set aside to the file of the Ld. CIT(A) with the directions to decide the same afresh, after considering all the evidences/documents and give adequate opportunity of being heard to the assessee. Assessee is also directed to fully cooperate with the Ld. CIT(A) and did not take any unnecessary adjournment and file all the necessary documentary evidences before him.
In the result, the appeal filed by the assessee stands allowed for statistical purposes.