CARMONA INVESTMENT & FINANCE P.LTD,MUMBAI vs. DCIT CIR 2(1), MUMBAI

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ITA 272/MUM/2014Status: DisposedITAT Mumbai21 December 2016AY 2010-114 pages
AI SummaryRemanded

What did the Tribunal hold?

The tribunal directed the Assessing Officer to re-examine the classification of short-term capital gains as business income, considering various factors and relevant case laws. The AO was also instructed to grant consequential benefits if applicable.

What were the facts?

The assessee is aggrieved by an order of the First Appellate Authority. One ground related to disallowance under Section 14A was not pressed. The main issue concerns the classification of short-term capital gains as business income.

What were the issues?

Whether short-term capital gains should be treated as business income, and if so, what consequential benefits should be granted to the assessee.

Which sections of the Income-tax Act were involved?

Section 14A

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Income Tax Appellate Tribunal, MUMBAI BENCHES, ‘C’ MUMBAI

Before: Shri Joginder Singh, & Shri Rajesh Kumar

For Appellant: Shri Satish Mody
For Respondent: Shri Rajat Mittal-DR
Hearing: 07/12/2016

आदेश / O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 21/10/2013 of the Ld. First Appellate Authority, Mumbai. The assessee has filed concise grounds, wherein, broadly two grounds have been raised.

2.

During hearing, the ld. counsel for the assessee, Shri Satish Mody, did not press ground no.2 with respect to disallowing a sum of Rs.1,67,79,848/- as per section 14A of the Income Tax Act, 1961 (hereinafter the Act) r.w.r. 8D of the Rules. The ld. DR, Shri Rajat Mittal, had no objection to the request of the ld. counsel for the assessee. Considering the request of the assessee, ground no.2 is dismissed as not pressed.

3.

So far as, confirming the stand of the Assessing Officer assessing the short term capital gain of Rs.2,59,27,004/- as business income is concerned, it was contended that while assessing the said income under head business income, the ld. Assessing Officer could not provide the consequent benefit valuing the stock in trade at market value at the end of the year and also the benefit of security transaction tax. It was pleaded that the ld. Assessing Officer may be directed to grant consequential benefit to the assessee. The ld. DR though defended the addition made by the ld. Assessing Officer but had no objection if the matter may be relooked on merit.

3 M/s Carmona Investment & Finance Pvt. Ltd.

1.

3.1. We have considered the rival submissions and perused the material available on record. Considering the submissions from both sides and CBDT Circular No.4/2007 dated 15/06/2007, we direct the ld. Assessing Officer to examine the factual matrix with respect to volume, frequency, nature of funds used, purpose of investment in capital gains and decide in the light of the decision from Hon'ble Apex Court/Hon'ble Bombay High Court in Gopal Purohit 336 ITR 287(SC) and Suresh R. Shah 76 DTR 32 (Bom.) along with other relevant case laws. Needless to mention here that the assessee be provided due opportunity of being heard. The assessee is at liberty to furnish necessary evidence, if any, in support of its claim. Thus, this ground is remanded back to the file of the Ld. Assessing Officer to make necessary enquiry and decide in accordance with law, thus, this ground is allowed for statistical purposes only.

Finally, the appeal of the assessee is partly allowed for statistical purposes only.

This order was pronounced in the open court in the presence of the ld. representative from both sides at the conclusion of the hearing on 07/12/2016.

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