ATUL M. RAMAIYA, MUMBAI v. ACIT 24(1), MUMBAI

CO 92/MUM/2013 | 2008-2009
Pronouncement Date: 30-11-2017 | Result: Allowed

Appeal Details

RSA Number 9219923 RSA 2013
Assessee PAN AAAPR8012P
Bench Mumbai
Appeal Number CO 92/MUM/2013
Duration Of Justice 4 year(s) 6 month(s) 22 day(s)
Appellant ATUL M. RAMAIYA, MUMBAI
Respondent ACIT 24(1), MUMBAI
Appeal Type Cross Objection
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-11-2017
Last Hearing Date 27-11-2017
First Hearing Date 27-11-2017
Assessment Year 2008-2009
Appeal Filed On 08-05-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER CO NO. 92/MUM/2013 (IN ITA NO. 3053/MUM/2012) : A.Y : 2008 - 09 ATUL M. RAMAIYA 403 SANJAR ENCLAVE OPP. MILAP CINEMA S.V. ROAD KANDIVALI (W) MUMBAI 400 067 PAN : AAAPR8012P (CROSS OBJECTOR/ORIG. RESPONDENT) VS. ACIT 24(1) MUMBAI (RESPONDENT/ORIG. APPELLANT) ASSESSEE BY : SHRI B.V. JHAVERI REVENUE BY : SHRI RAJESH KUMAR YADAV DATE OF HEARING : 27/11/2017 DATE OF PRONOUNCEMENT : 30 /11/2017 O R D E R PER G.S. PANNU AM : THE CAPTIONED CROSS - OBJECTION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 34 MUMBAI DATED 17 .0 2 .201 2 PERTAINING TO THE ASSESSMENT Y EAR 200 8 - 0 9 WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER MUMBAI DATED 1 3 .0 9 .201 0 U/S 143(3) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). 2 CO NO. 92/MUM/2013 ATUL M. RAMAIYA 2. INITIALLY THIS CROSS - OBJECTION WAS DISPOSED OFF BY THE TRIBUNAL ALONGWITH THE CORRESPONDING APPEAL OF THE REVENUE VIDE ORDER DATED 28.10.2015 BUT SUBSEQUENTLY ON A MISCELLANEOUS APPLICATION MOVED BY THE ASSESSEE U/S 254(2) OF THE ACT THE TRIBUNAL VIDE ITS ORDER IN MA NO. 20/MUM/2016 DATED 13.10.2017 RECALLED ITS ORDER PASSED IN THE CROSS - OBJECTION AND ACCORDINGLY THE CAPTIONED PROCEEDINGS HAVE BEEN LISTED FOR HEARING. IN THIS BACKGROUND THE RIVAL PARTIES HAVE BEEN HEARD. 3. IN BRIEF THE RELEVANT FA CTS ARE THAT THE ASSESSEE IS INTER - ALIA ENGAGED IN THE BUSINESS OF TRADING IN SHARES AND SECURITIES AND IS ALSO CARRYING OUT THE ACTIVITY OF MAKING INVESTMENTS IN SHARES AND SECURITIES. IN ITS RETURN OF INCOME FILED FOR THE INSTANT ASSESSMENT YEAR ASSE SSEE DECLARED INCOME FROM TRADING IN SHARES AND SECURITIES AS BUSINESS INCOME ; AND I NSOFAR AS THE ACTIVITY OF INVESTMENT IN SHARES/SECURITIES WAS CONCERNED ASSESSEE DECLARED LONG TERM CAPITAL LOSS OF RS.13 87 244/ - AS WELL AS SHORT TERM CAPITAL GAIN ON SALE OF SHARES OF RS.17 10 229/ - . IN AN ASSESSMENT COMPLETED U/S 143(3) OF THE ACT DATED 13.09.2010 THE ASSESSING OFFICER TREATED THE LONG TERM CAPITAL LOSS AND THE SHORT TERM CAPITAL GAIN ARISING FROM THE SALE OF SHARES AS FORMING PART OF THE BUSINESS INCOME. WHEN THE MATTER TRAVELLED TO THE CIT(A) HE NOTED THAT ASSESSEE HAD DEALT WITH TWELVE DIFFERENT SCRIPS ; AND SO FAR AS THE ACTIVITY OF PURCHASE AND SALE OF TEN SCRIPS WAS CONCERNED CIT(A) HAD ACCEPTED THAT THE SAME WAS ON INVESTMENT ACCOUNT AND T HEREBY ACCEPTED THE STAND OF THE ASSESSEE OF RETURNING THE SHORT TERM CAPITAL GAIN OR LOSS ON SUCH TRANSACTIONS. IN RELATION TO THE OTHER TWO SCRIPS NAMELY M/S. INFOSYS TECHNOLOGIES LTD. AND M/S. L ARSEN & T OUBRO LTD. THE CIT(A) AFFIRMED THE STAND OF THE ASSESSING OFFICER THAT SUCH TRANSACTIONS WERE TO BE 3 CO NO. 92/MUM/2013 ATUL M. RAMAIYA ASSESSED UNDER THE HEAD BUSINESS. THE REVENUE HAD CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL ASSAILING THE DECISION OF THE CIT(A) WITH RESPECT TO THE TRANSACTIONS IN TEN SCRIPS WHEREAS IN ITS CROSS - OBJECTION ASSESSEE HAS ASSAILED THE STAND OF THE CIT(A) WITH RESPECT TO THE OTHER TWO SCRIPS . NOTABLY THE APPEAL OF THE REVENUE ALREADY LIES DISPOSED OFF VIDE ORDER OF THE TRIBUNAL DATED 28.10.2015 WHEREIN THE DECISIO N OF THE CIT(A) HAS BEEN AFFIRMED. 4. IN THIS BACKGROUND THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE TRANSACTIONS IN THE TWO SCRIPS NAMELY M/S. INFOSYS TECHNOLOGIES LTD. AND M/S. LARSEN & TOUBRO LTD. WERE ON THE SAME FOOTING AS THE TRANSACTION IN OTHER TEN SCRIPS AND THEREFORE THE CIT(A) WAS WRONG IN MAKING A DISTINCTION AND TREATING THE TRANSACTIONS IN THE TWO SCRIPS TO BE IN THE NATURE OF BUSINESS. IN THIS CONTEXT OUR ATTENTION WAS DRAWN TO THE RELEVANT DISCUSSION MADE BY THE CIT(A) IN PARAGRAPHS 11 AND 12 OF HIS ORDER. A PERUSAL OF THE RELEVANT DISCUSSION BY THE CIT(A) REVEALS THAT THE PRIMARY REASON WEIGHING WITH HIM TO TREAT THE TRANSACTIONS IN THE TWO SCRIPS AS OF BUSINESS NATURE WAS THE SHORT PERIOD OF HOLDING OF SHARES P RIOR TO THEIR SALE. THE RELEVANT TABULATION HAS BEEN ENUMERATED BY THE CIT(A) IN PARA GRAPH 12 OF HIS ORDER WHOSE PERUSAL SHOWS THE PERIOD OF HOLDING OF THE SHARES IN SOME OF THE TRANSACTIONS IS LESS THAN THREE MONTHS OR JUST ABOUT THREE MONTHS PLUS. IN THIS CONTEXT WE HAVE ALSO PERUSED THE TABULATION ENUMERATED BY CIT(A) IN PARAGRAPH 3 OF HIS ORDER WHICH CONTAINS THE DETAILS OF THE TRANSACTIONS MADE BY THE ASSESSEE IN ALL THE TWELVE SCRIPS DURING THE YEAR. INSOFAR AS THE PERIOD OF HOLDING OF THE OTHER TEN SCRIPS IS CONCERNED THE SAME IS PARI MATERIA TO THE PERIOD OF HOLDING REFLECTED IN THE TRANSACTIONS OF THE TWO SCRIPS NAMELY M/S. INFOSYS TECHNOLOGIES LTD. AND 4 CO NO. 92/MUM/2013 ATUL M. RAMAIYA M/S. LARSEN & TOUBRO LTD. RATHER IN THE CASE OF SOME OF THE OTHER SCRIPS THE PERIOD O F HOLDING IS EVEN LESS THAN THREE MONTHS AND YET CIT(A) HAS TREATED SUCH TRANSACTIONS AS INVESTMENT TRANSACTION S AN ASPECT WHICH HAS BEEN APPROVED BY THE TRIBUNAL IN ITS ORDER DATED 28.10.2015 (SUPRA). AT THE TIME OF HEARING IT WAS PUT ACROSS TO THE LD. DR AS TO WHAT IS THE DISTINCTIVE FEATURE S RELATABLE TO THE TRANSACTIONS IN THE TWO SCRIPS OF M/S. INFOSYS TECHNOLOGIES LTD. AND M/S. LARSEN & TOUBRO LTD. WHICH JUSTIF Y PUTTING THEM ON A DIFFERENT FOOTING THAN THE OTHER TEN SCRIPS . APART FROM REITERATING THAT NO SPECIFIC REASONS HAVE BEEN ASSIGNED AS TO WHY THE SCRIPS WERE DISPOSED - OFF WITHIN A SHORT PERIOD OF HOLDING THE LD. DR HAS MERELY REITERATED THE STAND OF THE CIT(A). HOWEVER WE FIND THAT THE PERIOD OF HOLDING EVEN WITH REG ARD TO THE OTHER TEN SCRIPS IS OF THE SAME PATTERN AS IN THE CASE OF THE INSTANT TWO SCRIPS NAMELY M/S. INFOSYS TECHNOLOGIES LTD. AND M/S. LARSEN & TOUBRO LTD. AND THEREFORE IN OUR VIEW IT WOULD BE INAPPROPRIATE TO TREAT THE TRANSACTIONS IN THE TWO SC RIPS ON A DIFFERENT PEDESTAL THAN THE TRANSACTIONS IN THE OTHER TEN SCRIPS . THEREFORE ON THIS POINT AND CONSIDERING THAT THE TRIBUNAL IN ITS ORDER DATED 28.10.2015 (SUPRA) HAS ALREADY APPROVED THE DECISION OF THE CIT(A) QUA THE TRANSACTIONS IN THE OTHER TEN SCRIPS WE FIND NO JUSTIFIABLE REASONS FOR THE CIT(A) TO HAVE TREATED THE TRANSACTIONS IN THE TWO SCRIPS NAMELY M/S. INFOSYS TECHNOLOGIES LTD. AND M/S. LARSEN & TOUBRO LTD. DIFFERENTLY. THUS WE SET - ASIDE THE ORDER OF CIT(A) ON THIS POINT AND DIREC T THE ASSESSING OFFICER TO TREAT THE TRANSACTIONS OF THE ASSESSEE IN THE OTHER TWO SCRIPS NAMELY M/S. INFOSYS TECHNOLOGIES LTD. AND M/S. LARSEN & TOUBRO LTD. ALSO AS THAT OF A INVESTOR AND NOT AS A TRADER. THUS ASSESSEE SUCCEEDS ON THIS ASPECT. 5 CO NO. 92/MUM/2013 ATUL M. RAMAIYA 5. RES ULTANTLY THE CROSS - OBJECTION FILED BY THE ASSESSEE IS ALLOWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 T H NOVEMBER 2017 SD/ - SD/ - ( PAWAN SINGH ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI DATE : 3 0 T H NOVEMBER 201 7 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R A BENCH MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T MUMBAI