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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI N.K. PRADHAN
ORDER
PER N.K. PRADHAN, AM
This is an appeal filed by the Revenue. The relevant assessment year is 2014-15. The appeal is directed against the order of the Commissioner of Income Tax-44, Mumbai [in short ‘CIT(A)’] and arises out of the assessment completed u/s 143(3) of the Income Tax Act 1961, (the ‘Act’).
The ground of appeal
raised by the revenue reads as under: “On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that income of the assessee from share transactions is income taxable under the head Capital Gain and not Business Income without appreciating the fact that assessee has done share transaction high value during the course of the year.”
3. Briefly stated, the facts are that the assessee filed its return of income for the assessment year (AY) 2014-15 on 19.09.2014 declaring total income at Rs.1,81,71,349/-. It had claimed short term capital loss of Rs.2,50,347/- and long term capital gains of Rs.5,32,31,393/-. In response to a query raised by the AO during the course of the assessment proceedings, the assessee filed the details. However, the AO assessed the income from share trading as business income on the ground that in the previous assessment years, the income shown under the head capital gain was assessed under the head business income.
4. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A). We find that the Ld. CIT(A), referring to the order of the Tribunal in assessee’s own case for AY 2010-11 allowed the appeal filed by the assessee.
5. Before us, the Ld. DR relies on the order of the AO. On the other hand the Ld. counsel of the assessee refers to the order of the ITAT ‘D’ Bench, Mumbai in assessee’s own case for AY 2012-13 and submits that the order passed by the Ld. CIT(A) be confirmed.
6. We have heard the rival submissions and perused the relevant materials on record. We find that the same issue arose before the ITAT ‘D’ Bench, Mumbai in assessee’s own case for AY 2012-13 in ITA No. 5561/Mum/2017. The Tribunal vide order dated 12.03.2019 held as under: “4. The CIT (A) relying on the Tribunal’s decision for assessment year 2010- 11 In order dated 2.3.2016, wherein, orders for earlier years of ITAT decisions were followed, allowed the claim of the assessee. The CIT(A) also considered the CBDT Circular No.6 dated 29.2.2016 on this issue. The CIT(A) allowed the claim of the assessee by observing in paras 23.3. to 3.5 as under: “3.3 I have carefully gone through the assessment order and the written submission of the appellant. I have also studied the order of IT AT in appellant's own case. In the assessment order the only reason given by the AO for treating the income arising from the sale of shares as business income instead of income from capital gain is the fact that in previous assessment years also on similar issue the same thing was done by assessing officers. Apart from this no .enquiry or investigation seems to have been done by the Assessing Officer But on similar issues and facts the Hon'ble IT AT has already decided the appeal of the appellant for AY 2010-11 in his favour,( The Hon'ble IT AT D Bench vide its order dated 02,03.2016 has observed ......... We have heard the counsels for both the parties and we have also perused the material placed on record as well as the orders passed by the lower authorities and after considering the same, we found that since the Id. CIT(A) has based his entire findings bypassing a reasoned and speaking order and also by taking into consideration the principles of consistency as similar situation was found in the case of Rajesh D Nandu, an individual in which similar issue was decided in favour of the assessee vide order dated 12,02.2010 and 11.07.2013. Subsequently those orders were also upheld by the IT AT (Mum) Bench in (AY 2006- 07) and in ITA No. 3384/Mum/2010(AY 2007-08). And since the facts of present case are identical therefore, CIT(A), has rightly held that there is no reason to take different decision in the case of HUF and CIT(A) has also followed the case of 'Gopal Purohit'. In view of the above, we are of the view that the order passed by the Id CIT(A) do not require any interference from us therefore, we uphold the same. In the result, the revenue's appeal is dismissed. 3.4 It is seen from the facts, of-the case that the appellant has consistently shown shares as investment in his balance sheet. The question of treatment of income arising out of sale of scares has been conclusively decided by the CBDT in its circular no. 6 dated 29.02.2016. The relevant portion of the said circular is reproduced as below: