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Income Tax Appellate Tribunal, AHMEDABAD “SMC” BENCH AHMEDABAD
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH AHMEDABAD
BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA No. 780/Ahd/2015 (Assessment Year: 2010-11) Babubhai Ramanlal Patel ‘Darshak’, 14A Swastik Society, Punjabi Hall Gali, Navrangpura Appellant Vs. Dy. Commissioner of Income-tax, Circle -1, Ahmedabad Respondent PAN: ABYPP8048A
आवेदक क� ओर से/By Assessee : Shri Himanshu Shah, A.R. राज�व क� ओर से/By Revenue : Shri Mahesh Jiwade, Sr. D.R. सुनवाई क� तार�ख/Date of Hearing : 04.09.2017 घोषणा क� तार�ख/Date of Pronouncement : 22.09.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER This assessee’s appeal for assessment year 2010-11 arises against the CIT(A)-1, Ahmedabad’s order dated 18th February, 2015, in case no. CIT(A)- VI/DCIT, Cir-1/14/2013-14, upholding Assessing Officer’s action treating short term capital gains derived from sale of shares amounting to Rs.17,18,613/- as business income as well as in declining set off of losses of Rs.21,576/- pertaining to preceding assessment years; respectively, in proceedings u/s. 143(3) of the Income Tax Act, 1961; in short “the Act”. Heard both sides. Case file perused.
ITA No. 780/Ahd/15 (Babubhai R. Patel vs. DCIT) A.Y. 2010-11 - 2 -
We come to the former issue of assessee’s profits derived from share transactions in question involving a figure of Rs.17,18,613/-. Bothe the lower authorities are of the opinion that the assessee has entered into adventure in the nature of trade and business in the stock transactions in question. The relevant short and long term capital gains involve the corresponding figures of Rs.17,18,613/- and Rs.89,661/-; respectively. Both the lower authorities take into account assessee’s opening capital, secured/unsecured loan opening and closing balance, interest payment, net interest after adjustment of interest expenditure, interest paid to share brokers and opening investment in shares and securities to hold assessee’s profits in the nature of business income. They further rely upon their respective findings in preceding assessment years 2005- 06 to 2009-10 in treating assessee’s profits in question as business income instead of short term capital gains. This leaves assessee aggrieved.
We have given our thoughtful consideration to rival submissions. It has come on record that both the lower authorities adopt consistency in arriving at the impugned conclusion holding the assessee to have carried out adventure in the nature of trade in share transactions in question. No distinction on facts in said earlier or the impugned assessment year is pointed out. The assessee at this stage file before us this tribunal’s separate orders dated 29.08.2006 holding its share profits as capital gains thereby reversing both the lower authorities’ identical findings. Another co-ordinate bench in assessment year 2009-10 has also adopted the very reasoning in assessee’s favour. Learned Departmental Representative fails to dispute these clinching developments during pendency of the extent appeal. We therefore adopt judicial consistency herein as well to accept assessee’s former substantive ground.
This leaves us with latter issue of set off of losses amounting to Rs.21,576/-. Both the learned representatives fairly state at the outset that the same is in the nature of a consequential amount requiring factual verification in
ITA No. 780/Ahd/15 (Babubhai R. Patel vs. DCIT) A.Y. 2010-11 - 3 -
view of this tribunal’s earlier orders (supra). We appreciate this fair stand. The Assessing Officer is directed to finalize consequential computation as per law.
This assessee’s appeal is partly allowed.
[Pronounced in the open Court on this the 22nd day of September, 2017.]
Sd/- Sd/- (MANISH BORAD) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad: Dated 22/09/2017