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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH, JM
Assessee by: Shri Vijay R. Ashar Department by: Shri Pradeep Kumar Singh सुनवाई क� तार�ख / Date of Hearing: 17.08.2016 घोषणा क� तार�ख /Date of Pronouncement:21.09.2016 आदेश / O R D E R PER AMARJIT SINGH, JM:
The revenue has filed the present appeal against the order dated 27.10.2014 passed by the Commissioner of Income Tax (Appeals) 27,
ITA No.142/M/2015 A.Y. 2011-12 Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2011-12.
The revenue has raised the following grounds:-
“1. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in treating sale of shares as Short Term and Long Term Capital Gain as against “Income from Business” assessed by the Assessing Officer? 2. Whether on the facts and circumstances of the case, the Ld. CIT(A) has erred in not taking cognizance of Hon. Bombay High Court in the case of CIT V/s. Gopal Purohit; 336 ITR 287 (Bom) which clarifies that, “A finding of fact has been arrived at by Tribunal as regards the existence of two distinct types of transactions namely, those by way of investment on one hand and those for the purposes of business on the other hand.” Unlike in the present case wherein assessee has not maintained separate books of accounts? 3. Whether on the facts and circumstances of the case, the Ld. CIT(A) erred in relaying on the decision in the case of Radha Birju Patel as the facts in those cases are different from the case of assessee.
Whether on the facts and circumstances of the case, the Ld. CIT(A) erred in not following the decision of the Hon’ble ITAT, Delhi in the case of M/s. Radial International (ITA No.1368/Del/2010) which is squarely applicable to this case.”
The brief facts of the case are that the assessee filed his return of income on 18.08.2010 declaring total income to the tune of Rs.23,02,893/-. The return of income was processed u/s.143(1) of the ITA No.142/M/2015 A.Y. 2011-12 Income Tax Act, 1961 ( in short “the Act”). The case was selected manually for scrutiny and statutory notice u/s.143(2) dated 25.09.2012 was issued and served upon the assessee. Further, notice u/s.142(1) dated 18.07.2013 and 23.09.2013 along with questionnaire was issued and served upon the assessee. During the year, the assessee declared the income from house property, income from business, income from capital gains and income from other sources. Assessee claimed Short Term Capital Gains to the tune of Rs.91,01,353/-. Assessing Officer was not satisfied being the assessee earned the Short Term Capital Gain to the tune of Rs.91,01,353/- by utilizing the borrowed funds. Therefore the said income was treated as income from business. The claim of set off brought forward Short Term Capital Loss to the tune of Rs.81,96,338/- has also been declined. Since the assessee was not satisfied with the said assessment, therefore, the assessee filed an appeal before the CIT(A) and the CIT(A) treated the income from share as Short Term Capital Gain and also set off the Long Term Capital Loss, therefore feeling aggrieved the revenue has filed the present appeal before us.
ISSUE NO.1 TO 4:-
4. We have heard the arguments advanced by the learned representative of the parties and perused the record. In all these issued the only point which has been raised by the revenue is that the CIT(A) has wrongly treated the income from the shares of the ITA No.142/M/2015 A.Y. 2011-12 assessee as Short Term Capital Gain and also wrongly set off the claim of Short Term Capital Loss / Long Term Capital Loss. Assessing Officer decided this issue in favour of the revenue in view of the fact that the assessment for the year of 2008-09 to 2010-11 were completed u/s.143(3) of the Act holding the income from Short Term Capital Gain as business income. After filing an appeal before the CIT(A), the CIT(A) has decided this issue in favour of the assessee by holding the income from shares as income from Short Term Capital Gain and also set off the claim of the assessee in connection with the Short Term Capital Loss / Long Term Capital Loss. In the instant case also, the CIT(A) has relied upon the assessee’s own case for the A.Y.2008-09 to 2010-11 in appeals nos. CIT(A)27/DCIT/16(3)/68/10-11 and CIT(A)/27/ACIT 16(3)/7/13-14 vide orders dated 29.11.2011 and 07.02.2014 and decided this issue in favour of the assessee by holding the income from shares as Short Term Capital Gain by relaying upon the said order passed by the CIT(A). The Assessing Officer accepted the claim of the appellant of capital gain on sale of share in the assessee’s own case for the A.Y.2007-08, 2008-09 and 2009-10. No distinguishable facts have been placed on record by the revenue to which it can be assumed that the CIT(A) has passed the order wrongly and illegally. Even in the own case of assessee for the A.Y.2008-09 and 2010-11, the Hon’ble Income Tax Appellate Tribunal, Mumbai has uphold the finding of the CIT(A) by virtue of order dated 31.03.2015 in ITA No.1138/M/12
ITA No.142/M/2015 A.Y. 2011-12 and by virtue of order dated 04.12.2015 in and held that the income of the assessee is the income from Long Term Capital Gain. Honoring the decision of the co-ordinate bench and in view of the specific facts and circumstances of the case which speaks no change we are of the view that the CIT(A) has passed the order judiciously and correctly which does not require to be interfere with at this appellate stage. Therefore these issues are decided in favour of the assessee against the revenue.
In the result, the appeal filed by the revenue is hereby Dismissed.
Order pronounced in the open court on 21st September, 2016.