TMI Blog2013 (8) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... E Court] - Decided in favour of assessee. - I.T.A. No. 1140, 1216 / Kol . / 2009, & I .T.A. No. 1247,1282 Kol . / 2010 - - - Dated:- 21-5-2013 - Shri K.K. Gupta and Shri George Mathan, JJ. For the Appellant Shri R.N. Bajoria and Shri A.K. Gupta For the Respondent Shri K.K. Das, JCIT, Sr. D.R. ORDER I .T.A. 1216/Kol./2009 is an appeal filed by the revenue and I .T.A. 1140/Kol. /2009 is an appeal filed by the assessee against the order of ld. Commissioner of Income Tax (Appeals) -XIX, Kolkata in Appeal No. 325/CIT(A)-XIX/Addl. CIT, Range-31, Kol /08-09 dated 08.05.2009 for the assessment year 2006-07. I .T.A. 1282/Kol. /2010 is an appeal filed by the Revenue and I .T.A.1247/Kol. /2010 is an appeal filed by the assessee against the order of ld. Commissioner of Income Tax (Appeals)-XIX, Kolkata in Appeal No.114/CIT-XIX(A)/Addl.CIT,R-31/09-10 dated 30.04.2010 for the assessment year 2007-08. 2. Shri R.N. Bajoria, Sr. Advocate alongwith Shri A.K. Gupta, FCA represented on behalf of the assessee and Shri K.K. Das, ld. Dr. D.R. represented on behalf of the Revenue. 3. In ITA No. 1140/Kol/2009 (assessee s appeal), the assessee has raised the following grounds : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO in his order u/s. 143(3) treated as income from other source. It appears that the ld. CIT(A) has erred keeping the circumstances of the case in view as well as the materials available on record. 4. In the Revenue s appeal, the issue raised in Ground No. 1 is against the action of ld. CIT(Appeals) in treating the income from purchase and sale of shares, which was disclosed by the assessee as Short Term Capital Gains and had been treated by the Assessing Officer as business income in favour of the assessee as Short Term Capital Gains. It was the submission by the ld. D.R. that the assessee was in the business of purchase and sale of shares and in view of the Circular No. 4 dated 15t h June, 2007 issued by the C.B.D.T. as the assessee was regularly dealing in shares and was utilizing borrowed funds for the said business and as the frequency of the purchase and sale of shares was high as also the magnitude and volume of transaction, the Assessing Officer had treated the income generated from the said business of purchase and sale of shares as business income. It was the submission that the assessee had disclosed the profit from the said transact ions of the purchase and sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital gains and assessment had also been done under sect ion 143(3). It was the submission that even though there was short -term capital gains for the assessment 2010-11 as there was a carry forward short -term capital loss accepted for 2009-10 and the same had been set off against the short - term capital gains for 2010-11, the same had also been accepted. It was the further submission that the sole issue of whether the income from the purchase and sale of shares was liable to be assessed under the head short -term capital gains or under the head business income became an issue on account of the amendment which took place on 1s t June, 2004 whereby if STT is paid, the tax on the gains on the purchase and sale of shares was taxable at a lower rate. I t was the submission that as the assessee s income from the purchase and sale of shares was assessed as short -term capital gains for the earlier years and the subsequent years and there was no change in the facts for the year under appeal, the income of the assessee was liable to be assessed only under the head short -term capital gains . He placed reliance on the decision of the Hon ble Supreme Court in the case of Radhasoami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(Appeals) at pages 20-24 of his order. I t was the submission that the order of ld. CIT(Appeals) was liable to be upheld. 9. We have considered the rival submissions. A perusal of the order of ld. CIT(Appeals) clearly shows that the ld. CIT(Appeals) has decided this issue on the basis of the stand taken by the Revenue in the earlier years. No reason has been shown by the Revenue for changing its stand for the year under appeal. It is also not iced that ld. CIT(Appeals) has applied the ratio on the decision of the Hon ble Supreme Court in the case of Radhasoami Satsang referred to supra to hold that interest income is liable to be assessed only as business income for the relevant assessment year. In these circumstances, we are of the view that the finding of ld. CIT(Appeals) on this issue is on right footing and does not call for any interference. 10. In the result , the appeal of the Revenue stands dismissed. 11. In ITA No. 1140/Kol. /2009 (assessee s appeal), the only issue is against the act ion of ld. CIT(Appeals) in confirming the disallowance made under sect ion 14A of the Act. 12. At the time of hearing, it was fairly agreed by both the sides that the issue is now co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F SHARES TREATED AS BUSINESS INCOME 1. The assessee disclosed a prof i t of Rs.1,43,26,030/- derived by the assessee from sale and purchase of shares and credited the same in the prof i t loss a/c. however, in the computation sheet this prof it was treated as short term capital gain and tax was calculated as per the prevalent rate applicable under this head. In the order u/s. 143(3) the head of income was changed and treated as business income on the basis of facts and material brought on record during the proceedings and also, inter al ia, relying on CBDT Circular No. 4 of 2007 and the decision of Authority for Advanced Ruling in 288 ITR 641 on this subject. However, the ld. CIT(A)-XIX, Kolkata vide his order dated 30.04.10 has al lowed the appeal on this point. From the said order i t appears that the ld. CIT(A) has erred in both law and fact on the basis of facts and material available on record . 16. I t was fairly agreed by both the sides that our finding in respect of Ground No. 1 of the Revenue s appeal in ITA No. 1216/Kol. /2009 would apply to this appeal also. In these circumstances, our finding in respect of Ground No. 1 of the Revenue s appeal in ITA No. 1216 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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