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Income Tax Appellate Tribunal, “D”, BENCH MUMBAI
CORRIGENDUM O R D E R
This appeal was disposed off by this tribunal vide order dated 25.1.2019. Later the assessee had pointed out certain inadvertent errors that had crept in the order passed by this tribunal. The errors pointed out are of such a nature that it does not require any opportunity of being heard to the revenue. Hence we deem it fit to issue this Corrigendum.
In Page 7, Para 7 of the order dated 25.1.2019, though it was stated that pages 99 and 100 of the Paper Book are to be reproduced, but the same was not reproduced in the order. Hence we proceed to modify Para 7 as under:-
The assessee filed a rejoinder to this remand report before the ld CITA by way of a tabulation as under:-
Sr. Particulars Appellant's Case Appellant's Case AO observation in AY 2008-09 Remand Report No AY 2010-11 dated 29.3.2017
1 Short Term Treated as Treated as Business Department has not Capital Gains Business Income Income by AO filed any appeal by AO & CIT(A) before HC against however Hon ITAT Order for AY ITAT treated it as 2008-09 Capital Gains 2 Long Term Treated as Long Treated as Long Not commented, Capital Term Capital Term Capital Gains hence accepted Gains Gains by AO by AO 3 Trading in No No Not commented, Shares hence accepted 4 F&O Yes Yes Not commented, Business hence accepted 5 Jobbing in No No Not commented, Shares hence accepted 6 Types of i) Trading i) Trading Opening Not commented, Portfolio Opening Stock - Stock - Rs. Nil hence accepted Rs. Nil Closing Closing Stock - Rs. Stock - Rs. Nil Nil Purchases - Nil Purchases - Nil Sales -Nil Sales -Nil ii) Investment ii) Investment 7 Reflection in Shares - As Shares - As AO accepted that in Accounts & Investments Investments books in both the Balance Sheet years shares are treated as investment 8 No of Scripts Only 68 scripts Only 103 scripts & AO accepted the sale in Short Term Sales value - Rs. 10 Mutual funds & purchase pattern is Transactions 16,25,19,340 Sales value - Rs. similar to what is STG- 11,91,93,680 STG- observed in AY Rs. 1,13,09,512 Rs. 1,30,52,641 2008-09
Shri Dhairesh K Sanghvi 9 No of Scripts Only 4 Scripts & Only 22 Scripts and Not commented, in Long Term 1 5 Mutual Funds 17 Mutual funds hence accepted Transactions LTCG- LTCL of (-)Rs. 92.86 1.70Crores Lakhs 10 Use of Any Yes for Chemical Yes for Chemical AO accepted that the Borrowed Business No Business No investments in shares Funds Borrowings for Borrowings for and Mutual Funds are purchase of shares purchase of made out of own through NSE/BSE shares/Mutual funds funds - relying on through Hon'ble SC NSE/BSE/broker judgement in case of Reliance Industries Limited 11 Investing Yes Yes Not commented, since long hence accepted time 12 Sale of Yes Yes Not commented, Investments hence accepted are treated as Capital Gains in earlier Scrutiny Assessments 13 Valuation of At Cost At Cost AO accepted the Investments shares are valued at cost 14 Expenses No No Not commented, Claimed hence accepted against Share Income Note: The AO in the remand report has commented that the intention of the Assessee is to engage in the share trading as business activity and not as an investment. Appellants Comment: Inspite of the above acceptance of the facts, AO has given the said comment without giving any basis. The intention can be drawn for the appellant facts what are listed above and accepted by AO.
Shri Dhairesh K Sanghvi The Hon ITAT for AY 2008-09 has accepted the intention of the assessee was mainly to act as investor only & gain from sale of shares should be assessed under the head capital gains only. (para 8 of ITAT order dated 16.10.2015)”
The name of the authorized representative of the assessee was wrongly mentioned in the order as ‘Shri Paresh Shah’ instead of ‘Shri Paresh Shaparia’. The same is modified herein.
The PAN of the assessee was wrongly mentioned as ‘AAFPS24855B’ instead of ‘AAFPS2488B’. The same is modified herein.
Ordered accordingly.