ACIT CIR 13(3), MUMBAI v. SURENDRA S. BAJAJ, MUMBAI

ITA 2786/MUM/2012 | 2008-2009
Pronouncement Date: 05-10-2016

Appeal Details

RSA Number 278619914 RSA 2012
Assessee PAN AAEPB3670R
Bench Mumbai
Appeal Number ITA 2786/MUM/2012
Duration Of Justice 4 year(s) 5 month(s) 10 day(s)
Appellant ACIT CIR 13(3), MUMBAI
Respondent SURENDRA S. BAJAJ, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 05-10-2016
Appeal Filed By Department
Bench Allotted E
Tribunal Order Date 05-10-2016
Date Of Final Hearing 30-04-2014
Next Hearing Date 30-04-2014
Assessment Year 2008-2009
Appeal Filed On 25-04-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) I.T.A. NO. 2786 /MUM/20 12 (ASSESSMENT YEAR 20 08 - 09 ) ACIT 13(3) ROOM NO. 430 4 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. VS. SHRI SURENDRA S . BAJAJ 4/43 KAPADIA CHAMBER 51 DEVJI RATANSEY MARG MUMBAI - 400 009. ( APPELLANT ) ( RESPONDENT ) C.O. NO. 140/MUM/2015 (ASSESSMENT YEAR 2008 - 09) SHRI SURENDRA S. BAJAJ 4/43 KAPADIA CHAMBER 51 DEVJI RATANSEY MARG MUMBAI - 400 009. VS. ACIT 13(3) ROOM NO. 430 4 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAEPB3670R ASSESSEE BY SHRI REEPAL TRALSHAWALA DEPARTMENT BY S HRI J. SARAVANAN DATE OF HEARING 5.10 . 201 6 DATE OF PRONOUNCEMENT 5 . 10 . 201 6 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 2.12.2012 PASSED BY LEARNED CIT(A) - 24 MUMBAI AND THEY RELATE TO A.Y. 2008 - 09. 2. THE REVENUE IS AGGRIEVED BY T HE DECISION OF LEARNED CIT(A) IN CANCELLING THE ASSESSMENT OF SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAIN EARNED ON SALE OF SHARES AS INCOME FROM BUSINESS. SHRI SURENDRA S. BAJAJ 2 3. THE ASSESSEE HAS FILED CROSS OBJECTION CONTENDING THAT LOSS INCURRED ON F&O TRANSACTION S HOULD HAVE BEEN SET OFF BY THE ASSESSING OFFICER AGAINST BUSINESS INCOME ASSESSED BY HIM. 4. THE ASSESSEE HAS MADE PROFIT IN PURCHASE AND SALE OF SHARES AND DECLARED THE SAME AS SHORT TERM CAPITAL GAINS AND LONG TERM CAPITAL GAINS. THE ASSESSING OFFICER TREATED THE ASSESSEE AS TRADER IN SHARES AND ACCORDINGLY ASSESSED BOTH TYPES OF CAPITAL GAINS AS BUSINESS INCOME OF THE ASSESSEE. 5. LEARNED CIT(A) HOWEVER HELD THAT THE ASSESSEE SHOULD BE CONSIDERED AS INVESTOR AND ACCORDINGLY DIRECTED THE ASSESSING O FFICER TO ASSESS PROFIT FROM SALE OF SHARES AS CAPITAL GAINS. AGGRIEVED THE REVENUE HAS FILED THIS APPEAL BEFORE US. 6. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. NOW IT IS WELL SETTLED PROPOSITION THAT A PERSON CAN ACT AS BOTH TRADER AS WELL AS INVESTOR. WITH REGARD TO LONG TERM CAPITAL GAINS WE NOTICED THAT THE CBDT HAS CAME WITH THE CIRCULAR NO. 6/2016 WHEREIN IT IS STATED THAT LONG TERM CAPITAL GAINS DECLARED BY THE ASSESSEE ON SALE OF SHARES SHOULD NOT BE DISPUTED BY THE ASSESSING OFFICER. ACCORDINGLY WE ARE OF THE VIEW THAT THE LONG TERM CAPITAL GAINS DECLARED BY THE ASSESSEE SHOULD BE ACCEPTED BY TAKING A VIEW THAT THE ASSESSEE HAS HELD THOSE SHARES AS INVESTOR. WE ALSO NOTICED THAT LEARNED CIT(A) HAS TAKEN AN IDENTICAL VIEW IN THIS MAT TER AND HENCE WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY HIM IN RESPECT OF LONG TERM CAPITAL GAINS. 7. IN RESPECT OF SHORT TERM CAPITAL GAINS WE NOTICED THAT THE COORDINATE BENCH OF THE TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE IN ASSESSEES OWN CASE IN ITA NO. 6234/MUM/2009 RELATING TO A.Y. 2006 - 07 AND THE TRIBUNAL VIDE ITS ORDER DATED 28.10.2011 HAS TAKEN THE VIEW THAT THE ASSESSEE SHOULD BE CONSIDERED AS TRADER AND ACCORDINGLY HE LD THE SHORT TERM CAPITAL GAIN W AS RIGHTLY ASSESSED AS BUSINE SS INCOME OF THE ASSESSEE. THOUGH THE LEARNED AR SUBMITTED THAT THE FACTS RELATING TO THE ISSUE WERE DIFFERENT DURING THE YEAR SHRI SURENDRA S. BAJAJ 3 UNDER CONSI D ERATION YET WE ARE OF THE VIEW THAT WE SHOULD FOLLOW THE VIEW TAKEN BY THE TRIBUNAL IN ASSESSEES OWN CASE. ACCORDIN GLY WE SET ASIDE THE ORDER PASSED BY LEARNED CIT(A) IN RESPECT OF SHORT TERM CAPITAL GAIN AND UPHOLD THE ORDER PASSED BY THE ASSESSING OFFICER IN ASSESSING THE SHORT TERM CAPITAL GAIN AS BUSINESS INCOME OF THE ASSESSEE. 8. IN THE CROSS OBJECTION THE AS SESSEE HAS SUBMITTED THAT THE LOSS INCURRED ON F&O TRANSACTION S SHOULD HAVE BE EN SET OFF AGAINST BUSINESS INCOME OF THE ASSESSEE. THOUGH THE CO FILED BY THE ASSESSEE IS BARRED BY LIMITATION YET WE NOTICE THAT THE CLAIM MADE BY THE ASSESSEE IS A LEGAL CLAI M AND HENCE WE ADMIT THE CO BY CONDONING THE DELAY. WE NOTICED THAT TH E ABOVE SAID CLAIM OF THE ASSESSEE HAS NOT BEEN CONSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMIN E THE SAID CLAIM AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 9. IN THE RESULT APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED AND CROSS OBJECTION FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 5 . 10 .2016 SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 5 / 10 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. T HE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE. BY ORDER //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT MUMBAI