TMI Blog2014 (7) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... STCG and not business income – Held that:- CIT(A) has reversed the decision of the assessing officer by following his order passed for the immediately preceding year - the contention of the assessee is that the facts that prevailed in the immediately preceding year are materially different from the facts available in the instant year – there was not be any dispute that the question whether the income arising on sale of shares is assessable as Capital Gains or Business Income may be required to be examined every year by following various criterion illustrated by the Courts - assessee has filed additional evidences, they are required to be examined at the end of the AO – thus, the matter is remitted back to the AO for fresh adjudication – De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d income arising on sale of shares amounting to ₹ 7.73 crores as Business Income of the assessee as against the claim of the assessee that it was Short Term Capital Gain. The Ld CIT(A) confirmed the disallowance made u/s 14A, but reversed the decision of the AO in respect of profit arising on sale of shares, i.e., he held that the same is assessable under the head Short Term Capital Gains. Aggrieved by the decision of Ld CIT(A), both the parties are in appeal before us on the issue decided against each of them. 5. In the appeal filed by the assessee, the only issue urged is about the disallowance made u/s 14A of the Act. The Ld A.R submitted that the Hon ble jurisdictional Bombay High Court has rendered its decision in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istent with the view taken by the Tribunal in the immediately preceding year, we set aside this issue to the file of the AO with the direction to compute the disallowance to be made u/s 14A of the Act on a reasonable basis by following the decision rendered by Hon ble jurisdictional High Court in the case of Godrej Boyce Manufacturing Company Ltd (supra). 7. In the appeal filed by the revenue, the only issue contested relates to the head of income under which the gain arising on sale of shares is assessable. The Ld A.R submitted that the identical issue was also considered by the Tribunal in the immediately preceding year and the same was decided against the assessee, i.e., the Tribunal has confirmed the view taken by the AO on this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention, the assessee has moved a petition before us seeking admission of additional evidences. 10. There should not be any dispute that the question whether the income arising on sale of shares is assessable as Capital Gains or Business Income may be required to be examined every year by following various criterion illustrated by the Courts. Hence, we find merit in the contentions of the assessee. Since the assessee has filed additional evidences, they are required to be examined at the end of the AO. Accordingly, we are of the view that this issue should be examined afresh at the end of the AO. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the AO with the direction to examine this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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