CIT v. Gopal Purohit

Anand Jain, Mumbai vs. CIT Cen-III, Mumbai

In the result, appeal filed by the assessee in ITA No

Bench: Shri C.N. Prasad & Shri Ramit Kocharआयकर अपील सं./I.T.A. No.3895/Mum/2013 ("नधा"रण वष" / Assessment Year : 2005-06) Anand Jain, The Commissioner Of बनाम/ A-13, Sterling Apartments, Income Tax , Central – Iii, V. 38, Peddar Road, Room No. 109, Mumbai – 400 026. Aayakar Bhavan, Mumbai 400 020. "थायी लेखा सं./Pan : Aabpj1890J (अपीलाथ" /Appellant) .. (""यथ" / Respondent)

…ssee has also received dividend for all the years under consideration and as already stated above, no amount has been borrowed. 11. For the aforesaid propositions, the assessee relies on the decision of Bombay High Court in the case of Gopal Purohit v JCIT - 228 CTR 582. The Special Leave Petition filed by the Department has been dismissed by the Hon'ble Supreme Court vide its order dated 15th November, 2010. 12. The Mumbai ITAT in the case of DCIT v SMK Shares & Stock Broking held that the AO's conclusion that since the sale and purchase had been determined in the volatility in the market, the same is against t…

Bhupati Investments & Finance Pvt. Ltd., Mumbai vs. DCIT - 5(1), Mumbai

Appeal stands allowed

Bench: Shri D.T. Garasia, Jm & Shri Manoj Kumar Aggarwal, Am आयकर अपील सं./I.T.A. No. 5167/Mum/2016 (िनधा"रण वष" / Assessment Year: 2005-06) Bhupati Investments & Deputy Commissioner Of Finance Private Limited Income Tax-5(1) B-34/35, 3Rd Floor Aayakar Bhavan बनाम/ Paragon Condominium M.K.Road Vs. P.B.Marg Mumbai – 400 020 Worli Mumbai – 400 018 "थायी लेखा सं./जीआइआर सं./Pan/Gir No. Aaacb-0441-P (अपीलाथ" /Appellant) (""थ" / Respondent) : अपीलाथ" की ओर से / Appellant By : Ms. Arati Vissanji, Ld. Ar ""थ" की ओर से/Respondent By : Shri M.C.Omi Ninghsen, Ld. Dr सुनवाई की तारीख / : 10/04/2017 Date Of Hearing घोषणा की तारीख / : 24 /04/2017 Date Of Pronouncement

…ds that similar view is taken in similar circumstances as upheld by Apex court in CIT Vs. Excel Industries Ltd. / Mafatlal Industries Pvt. Ltd. 358 ITR 295 judgment dated 08/10/2013 and also by jurisdictional Hon’ble Bombay High Court in CIT Vs. Gopal Purohit 336 ITR 287 judgment dated 06/01/2010. Further, advancing of money to sister concern per se does not alter the character of income in the hands of the assessee particularly when the assessee was subjected to terms and conditions imposed by the RBI for NBFC companies. All these observations / factors lead us to conclude that the income earned by the assessee…

ITO (E) 2(3), Mumbai vs. Sathya Sai Trust, Mumbai

In the result, both the appeals of the Revenue are dismissed

Bench: Shri R.C.Sharma, Am

…ussed and distinguished in the judicial pronouncement mentioned at serial no. iv to vi above. She further submitted that rule of consistency should also be applied especially in view of judgment of Hon'ble Bombay High Court in the case of CIT v. Gopal Purohit 336 ITR 287 (Bom) and Aroni Commercial Ltd. vs. DCIT & others (2014) 362 ITR 403 (Bom). She further submitted that the amendment made to section 11 is prospective and is not to be applied retrospectively in the assessment Sadguru Seva Trust year under consideration in this appeal. She requested for confirming the order of CIT(A) and dismissing the appeal fil…

Asst CIT 24(1), Mumbai vs. Dipak Kanayalal Shah, Mumbai

In the result, CO filed by the assessee is partly allowed

Bench: Shri D. Karunakara Rao & Shri Pawan Singhacit-24(1), फनाभ/ Shri Dipak Kanayalal Shah, 31-B, 1St Floor, Laxmi Estate, Mumbai. Vs. Azad Road, Andheri (E), Mumbai – 400 012. स्थामी रेखा सं./ Pan : Aveps4654B (अऩीराथी /Appellant) .. (प्रत्मथी / Respondent) C.O. No.12/M/2017 (Ay 2010-11) Shri Dipak Kanayalal Shah, फनाभ/ Acit-24(1), 31-B, 1St Floor, Laxmi Estate, Mumbai. Vs. Azad Road, Andheri (E), Mumbai – 400 012. स्थामी रेखा सं./ Pan : Aveps4654B (अऩीराथी /Appellant) .. (प्रत्मथी / Respondent) अऩीराथी की ओय से / Assessee By : Shri Rajan Vora / Mr. Hemen Chandariya प्रत्मथी की ओय से/ Revenue By : Ms. Beena Santosh, Dr

…of the AO in this regard are reversed. The grounds of appeal are allowed.” 17. After examining the said paras 6.21 to 6.29 of the CIT (A)‟s order, we find the CIT (A) has applied the judgment of the Hon‟ble Supreme Court in the case of CIT vs. Gopal Purohit [336 ITR 287] (Mum) before coming to the conclusion that the STCG should be treated as business income of the assessee. 18. To sum up, we find the view of the AO in treating the LTCG and STCG as business income of the assessee, is not proper. Considering statutory provisions regarding the definition of LTCG, we are convinced that the views of CIT (A) are sus…

Sanjay Kumar Poddar, Mumbai vs. JCIT (OSD) 15(1), Mumbai

Appeal is allowed in favour of the assessee, in part

Bench: S/Shri Rajendra & Ram Lal Negiआयकर अपील अपील संसंसंसं./I.T.A./3150/Mum/2014, िनधा"रण िनधा"रण वष" वष" /Assessment Year: 2009-10 आयकर आयकर आयकर अपील अपील िनधा"रण िनधा"रण वष" वष" Sanjay Kumar J. Poddar, C/O Shankarlal Jt. Commissioner Of Income Tax(Osd), Jain & Associates, Circle 15(1),Matru Mandir, Vs. 12 Engineer Building, 265, Princess Mumbai-400 006. Street, Mumbai – 400 002. Pan:Aabpp 2018 E (अपीलाथ" /Appellant) (""यथ" / Respondent) आयकर अपील अपील संसंसंसं./I.T.A./3961/Mum/2014, िनधा"रण िनधा"रण वष" वष" /Assessment Year: 2009-10 आयकर आयकर आयकर अपील अपील िनधा"रण िनधा"रण वष" वष" Jt. Commissioner Of Income Tax(Osd), Sanjay Kumar J. Poddar, C/O Shankarlal Vs. Jain & Associates, Mumbai – 400 002. Mumbai-400 006. (अपीलाथ" /Appellant) (""यथ" / Respondent) Revenue By: Shri A.K. Nayak- Dr Assessee By: Shri S.L. Jain

…he AY. 2008 -09,that the then FAA had decided the issue in favour of the assessee, that the AO himself had, in the AY.s 2006-07 and 2007-08 had taxed the profit from the share transaction under the head capital gains. He referred to the case of Gopal Purohit (228 CTR 582) and submitted that no borrowed funds were utilised for investment, that shares were purchased from the sale proceeds of the shares held by him, that the capital owned by him far exceeded the investment in shares, that he had sold unlisted shares held by him to the tune of Rs.4.21 crores, that sufficient funds were available with him for making i…

Naryanswami Jayakumar, Mumbai vs. Asst CIT Cir 7(3)(1), Mumbai

In the result, appeal of the assessee is allowed

Bench: Shri D.Karunakara Rao & Shri Pawan Singh

…indulging in the trade transaction in such circumstances and going by frequency of transaction and applying the relevant test and allowed the claim of STCG. We may further referred the decision of jurisdictional High Court in case of Gopal Purohit vs. JCIT [336 ITR 287(Bom)] held that though the principle of 7 Mr. Narayanswami Jayakumar res-judicata is not applicable to the assessment proceeding, yet there should be uniformity in treatment and consistency with facts and circumstances are identical. Now turning to the facts of the present case during the year under consideration, the shares of 12 companies wer…

Jeet Prkash Chugani, Mumbai vs. ACIT (OSD) 2(3), Mumbai

In the result, appeal filed by the assessee in ITA No

Bench: Shri C.N. Prasad & Shri Ramit Kocharआयकर अपील सं./I.T.A. No.4495/Mum/2016 ("नधा"रण वष" / Assessment Year : 2004-05) Jeet Prakash Chugani, Assistant Commissioner Of बनाम/ 7/72, Sona Apartments, Income Tax (Osd)-2(3), V. Mhb Complex, Aayakar Bhavan, Bandra Reclamation, M.K. Marg, Bandra (West), Mumbai – 400 020. Mumbai – 400 050. "थायी लेखा सं./Pan : Aabpc7359M .. (अपीलाथ" /Appellant) (""यथ" / Respondent)

…आयकर अपील"य अ"धकरण “H” "यायपीठ मुंबई म"। IN THE INCOME TAX APPELLATE TRIBUNAL “H” BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER आयकर अपील सं./I.T.A. No.4495/Mum/2016 ("नधा"रण वष" / Assessment Year : 2004-05) Jeet Prakash Chugani, Assistant Commissioner of बनाम/ 7/72, Sona Apartments, Income Tax (OSD)-2(3), v. MHB Complex, Aayakar Bhavan, Bandra Reclamation, M.K. Marg, Bandra (West), Mumbai – 400 020. Mumbai – 400 050. "थायी लेखा सं./PAN : AABPC7359M .. (अपीलाथ" /Appellant) (""यथ" / Respondent) Assessee by : Shri S.K. Mutsaddi Revenue by : Ms. Pooja Swaroop, DR…

ACIT 25(1), Mumbai vs. Sunil G Raheja, Mumbai

…would pay additional tax, that the shares in question had all along been valued at cost and treated as investment, that he had incurred losses on similar transactions and had not claimed such losses as business loss. He relied upon the cases of Gopal Purohit (228 CTR 582), Ketha Kumar A.Shah (242 ITR 83) and S. Ramaathirtham (306 ITR 239) and argued that entire amount of Rs.1.87 crores was to be treated as STCG. After considering the submission of the assessee and the assessment order, the FAA held that the reasons given by the AO to treat the STCG as business income were generic in nature, that STCG income had…

JCIT 16(3), Mumbai vs. Nirmaladevi Poongalia, Mumbai

In the result appeal filed by the revenue is hereby Dismissed

Bench: Shri G.S.Pannu, Am & Shri Amarjit Singh, Jm आयकरअपीलसं/I.T.A. No.2474/Mum/2012 (िनधा"रणवष" / Assessment Year: 2008-09) Asstt. Commissioner Of Smt. Nirmaladevi Poongalia बनाम/ Income Tax 16(3) C/O. Karnavat & Co., Vs. Matru Mandir, Tardeo Road, 2A, Kitab Mahal, 1St Floor, Mumbai – 400007 192, Dr. D.N.Road, Mumbai - 400001 "थायीलेखासं./जीआइआरसं./Pan/Gir No. : Abapp8868N (अपीलाथ"/Appellant) .. (""थ" /Respondent)

…ar facts, and for the sake of brevity, even if they are taken into consideration for arriving at the conclusion that the appellant is an investor the same are not reproduced. However to name a few Janak S. Rangwalla vs ACIT (11 SOT 627), CIT Vs. Gopal Purohit 228 CTR 582 (Bom.)(2010), CIT Vs. Rohit Anand (2010) 327 ITR 445 (Del), DCIT Vs. SMK Shares & Stock Broking Pvt. Ltd. ITA No. 799/Mum/2009, Vinod K. Nevatia ITA No.6556/Mum/2009 and 181/Mum/2010 and Naishadh V. Vachharajani ITA No.6429/Mum/2009. 9. In view of the detailed discussion of the facts and the legal position and the back ground of the amended provi…

ACIT 25(2), Mumbai vs. Meenal D Shah, Mumbai

In the result, appeal filed by the Revenue is dismissed

Bench: Shri D.T. Garasia & Shri Ashwanitanejaassessment Year: 2008-09 Acit 25(2) Smt. Meenal D. Shah बनाम/ Bldg. No. C-11, 1St B-201, Victory Park, Floor, R.No. 108, Chandarvarkar Lane, Vs. Pratyakashkarbhavan, Borivali(W), Mumbai-400092. Bandra-Kurla Pan: Anqps7458F Complex, Bandra(E), Mumbai 400051 Appellant (Respondent ) P.A. No.Aaatn0093Q Appellant By Shri Mc Omi Ningshen, Dr Respondent By Shri Rahul K. Hakani, Ar सुनवाई की तारीख/Date Of Hearing: 07/02/2017 आदेश की तारीख /Date Of Order: 15/02/2017

…eld in the above case that all the delivery based transactions should be treated as short term capital gain or long term capital gain depending upon the period of holding. The above decision of the Hon’ble Tribunal was upheld by the Hon’ble Bombay High Court (228 CTR 582). Further, there is no dispute that the appellant took delivery of all the rate applicable to the investment. In view of the above, I hold that the profit on sale of shares is liable to be assessed under the head short term capital gain or long term capital gain depending upon the period of holding. It is true that in many cases the appellant hel…

Nirav J. Vakharia, Mumbai vs. DCIT 24(2)/30(2), Mumbai

In the result, both the appeals are allowed

Bench: Shri R P Tolaniassessment Year : 2010-11 Nirav J Vakharia Dcit 24(2)/30(2) 101 Indraprastha-Iii Jitendra Mumbai Vs. Road, Malad (E) Mumbai 400 097

…IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES “SMC, MUMBAI Before Shri R P Tolani, Judicial Member Assessment Year : 2010-11 Nirav J Vakharia DCIT 24(2)/30(2) 101 Indraprastha-III Jitendra Mumbai Vs. Road, Malad (E) Mumbai 400 097 PAN AABPV7627B (Appellant) Respondent) Assessment Year : 2010-11 Jeshma S Vakharia DCIT 24(2)/30(2), 101 Indraprastha-III Jitendra Mumbai Vs. Road, Malad (E) Mumbai 400 097 PAN ADUPV9528K (Appellant) Respondent) Appellants By : Shri R C Jain Respondent By : Ms. Beena Santosh Date of Hearing :30.01.2017 Date of Pronouncement : 03.02.2017 O R D E R Per R P Tolani, Judicial M…

Bhagirath Chandulal Arya, Mumbai vs. Pr CIT 18, Mumbai

In the result, appeal of the assessee is partly allowed

Bench: Shri D. Karunakara Rao & Shri Ravish Sood

…h earned long term capital loss of Rs. 32.28 lakhs. Referring to various decisions ie CIT vs. Naishadh Vaccharajani (ITA No.1042/2011) (Bom. HC), dated 22.9.2011; Nagindas P Sheth HUF vs. ACIT (ITA No.961/M/2010, dated 5.4.2011); CIT vs. Gopal Purohit [2011] 336 ITR 287 (Bom.) - SLP rejected – 334 ITR (St.) 308, Ld Counsel for the assessee demonstrated that the present claim of the assessee constitutes long term capital gains and the same should be accepted without any disturbance. Referring to the order of the CIT in principle and para 11 of his order in particular, which constitutes a reason for treating the o…

Carmona Investment & Finance P.Ltd, Mumbai vs. DCIT Cir 2(1), Mumbai

The appeal of the assessee is partly allowed for statistical purposes only

Bench: Shri Joginder Singh & Shri Rajesh Kumarassessment Year: 2010-11 M/S Carmona Investment & Dcit, Finance Pvt. Ltd. Circle-2(1), बनाम/ K.K. Chambers, 2Nd Floor, Mumbai Vs. Sir P.T. Road, Fort, Mumbai-400001 ("नधा"रती /Assessee) (राज"व /Revenue) Pan. No.Aaacc4391B "नधा"रती क" ओर से / Assessee By Shri Satish Mody राज"व क" ओर से / Revenue By Shri Rajat Mittal-Dr

…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…

DCIT 4(2)(2), Mumbai vs. Vimla S. Jajoo, Mumbai

In the result, Revenue’s appeal is dismissed

Bench: Shri C.N. Prasad & Shri N. K. Pradhanassessment Year: 2011-12 Dcit 4(2)(2), Smt. Vimal S. Jajoo, R.No.642, 6Th Floor, 7/10, Botawala Bldg., Vs. 1St Floor, Horniman Circle, Aayakar Bhavan, M.K. Road, Mumbai-400 001 Mumbai – 400 020 Pan: Adapj 8747J (Appellant) (Respondent) Present For: Assessee By : Shri Rajesh Ojha, A.R. Revenue By : Shri Indra C. Anand, D.R. Date Of Hearing : 17.10.2016 Date Of Pronouncement : 16.12.2016 O R D E R

…years unless the facts or the legal position justify departure there from; reliance can be placed in this respect on the authorities of the Hon’ble Bombay High Court in ‘CIT vs. Darius Pandole’ [(2011 330 ITR 485 (Bom.)] and in ‘CIT vs. Gopal Purohit [(2011) 336 ITR 287 (Bom.). 9. In view of our above discussion of the matter, we are of the view that the assessee is to be treated as an investor for the A.Y. 2005-06 to A.Y. 2008-09 also. We hold accordingly. The AO, therefore, is directed to treat the income from sale and purchase of shares as short term capital gains and long term capital gains according to the…

S.K. Kankal HUF, Mumbai vs. ITO 25(3)(4), Mumbai

In the result, appeal of the assessee is allowed

Bench: Shri Mahavir Singh () & Shri Ashwani Taneja ()

…ar to take a divergent view. The shares have always been shown as part of investment and accepted as such. Ld. Counsel relied upon the following judgements in support of his claim: 1) Gopal Purohit v. JCIT [2009] 29 SOT 117 (MUM) 2) CIT v.Gopal Purohit [2011] 336 ITR 287 (Bom) 3) ACIT v. Chetan K. Mehta - (ITA No.6529/Murn/2011) 4) ACIT v. Shri Ronnie Hosi Mehta (ITA No. 640/M/2012) 5) M/s. Mindset Technologies Pvt.Ltd. (ITA No.7071/M/2013) 6) Shri Dhairesh K. Sangvi v. DCIT (ITA No. 2933/M/2013) 7) DCIT v. M/s. E-Cap Partners (ITA No.4785/M/2009) 8) Shri Rajesh S. Sanghvi v. ACIT (ITA No, 1609/M/2011) 9) CIT V.…