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TMI Blog2016 (4) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... as the lead case. In grounds of appeal No.1 to 4 the revenue has challenged the order of the CIT(A) in holding that the activity of transaction in shares/mutual fund by engaging PMS was an investment activity and resultant gain/loss was assessable under the head capital gain. 3. Facts of the case, in brief, are that the assessee is an individual and has returned income of Rs. 88,39,449/- which also comprised of income earned on sale of shares and the same had been shown as capital gains/loss in the return of income filed. During the year, the assessee had entered into Portfolio Management Services (PMS in short) agreement with HDFCPMS, DSPMerrilLynchPMS and EnamPMS to whom the assessee had entrusted certain funds. As per the PMS agreement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the resultant gain was assessable under the head capital gains. Accordingly, the appeals filed by the revenue were dismissed. Since the CIT(A) following the decision of the Tribunal in assessee's own case for A.Y.2008-09 has decided the issue in favour of the assessee and in the subsequent year the Tribunal in the case of other related parties has also decided the issue in favour of the assessee and against the revenue, therefore, in absence of any contrary material brought to our notice by the Ld. Departmental Representative against the order of the Tribunal, we find no infirmity in the order of the CIT(A) deleting the disallowance made by the AO. Accordingly, the same is upheld and the grounds of appeal No.1 to 4 by the revenue are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related cases in ITA Nos. 1534, 1535, 1568, 1569, 1570 and 1571/PN/11. The Hon'ble ITAT held as under : "10. After hearing both the sides, we find no infirmity in the order of the CIT(A). The learned CIT(A) has given a categorical finding that expenditure on PMS has not been claimed by the assessee and there does not remain any other expenditure other than this expenditure, therefore, no disallowance u/s.14A r.w. Rule 8D can be made. The above factual finding given by the learned CIT(A) could not be controverted by the learned DR. Under these circumstances, we hold that the learned CIT(A) was justified in deleting the disallowance made by the AO. Grounds raised by the revenue are accordingly dismissed. In view of the above facts, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infirmity in the order of the CIT(A). The learned CIT(A) has given a categorical finding that expenditure on PMS has not been claimed by the assessee and there does not remain any other expenditure other than this expenditure, therefore, no disallowance u/s.14A r.w. Rule8D can be made. The above factual finding given by the learned CIT(A) could not be controverted by the learned DR. Under these circumstances, we hold that the learned CIT(A) was justified in deleting the disallowance made by the AO. Grounds raised by the revenue are accordingly dismissed." 12. Since the Ld.CIT(A) while deciding the issue has followed the decision of the Tribunal in assessee's own case which has been followed by the Tribunal in A.Y. 2009-10 in the case of ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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