ASHOK JIAN,MUMBAI vs. ACIT CEN CIR 38, MUMBAI

In this appeal the only grievance of the assessee is against the action of the AO in treating the short term capital gain of `44,26,537/- as business income.

Before proceeding further it may be noted that the appeal has been filed belatedly by 20 days. The assessee has sought condonation of delay and it has been averred in the affidavit dated 02.02.2017, a copy of which is on record, that the delay was on account of unintended reasons beyond the control of the assessee. It is averred that the concerned professional

Notably, the captioned appeal is arising from the assessment finalised by the AO under Section 143(3) r.w.s. 153A of the Income Tax Act (hereinafter “the Act”) consequent to a search action on the assessee on 12.10.2011. In the impugned assessment the AO referred to the original assessment made by the AO under Section 143(3) of the Act dated 10.11.2008 and treating the short term capital gain of `44,26,537/- as business income. Assessee carried the matter in appeal before the CIT(A) who endorsed the action of the AO by noticing that in the assessment proceedings under Section 143(3) of the Act dated 10.11.2008, similar action of the AO has since been confirmed by the Tribunal in the appeal.

Before us the learned A.R. fairly conceded that the position brought out by the learned CIT(A) continues to hold the field in as much as the order of the Tribunal affirming the assessment of short term capital gain as business income continues to prevail. In view of the above we hereby confirm the order of the CIT(A) and the assessee fails in this appeal.