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TMI Blog2014 (9) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity and resultant gain/loss was assessable under the head "Capital Gains". (2) The Learned Commissioner of Income-tax (Appeals) erred in not appreciating the fact that the assessee had carried out business of trading in shares/mutual funds in a systematic and organized manner by utilizing the services of Portfolio Management Service Providers to act as an agent. (3) The Learned Commissioner of Income-tax (Appeals) erred in not appreciating that most of the transactions effected were of short term nature, clearly indicative of the motive of the assessee to earn profits by resorting to frequent trading rather than to earn dividend by holding shares for long durations. (4) The Learned Commissioner of Income-tax (Appeals) erred in not appreciating that the assessee had carried out transactions in high volume and in an organized manner which constitute the activity as business and not investment as claimed by the assessee and as such the profits derived from such transactions was taxable under the head 'Income from business & profession." 2.1 Facts of the case, in brief are that the assessee is an individual and filed her return of income on 27-07-2009 declaring total inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1568, 1569, 1570 and 1571/PN/11. The relevant operative paras of the ITAT's order dated 27.09.2012 are reproduced below: "6......... ................We find the Tribunal following the order of the Tribunal in the group cases for A. Y. 2006-07, allowed the claim of short term capital gain and long term capital gain from gain in respect of investment through PMS service as against 3....................................................................................................................................................... ........................................................................ ......................................................... '9. ................................................... 10. ................................................... 11........................................................................................................................We have examined the position, in particular the analysis made out by the Commissioner of Income-tax (Appeals) in the extracted portion with reference to the statement and transactions which have been placed in the paper book filed before us. In our considered opinion, the inference draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investments carried out by the assessee through the PMS provider do not result in a gain assessable as business income. 15. In view of the aforesaid discussion, and having regard to the reasonings extended by the Commissioner of Income-tax (Appeals) with which we hereby affirm, we find that the grievance of the Revenue in this appeal is misdirected and accordingly the conclusion arrived at by the Commissioner of Income-tax (Appeals) on this aspect is hereby affirmed. Respectfully following the decision of the Tribunal in assessee's own case and in absence of any contrary material brought to our notice by the revenue the grounds raised by the revenue on this issue are dismissed. ............................................................................ Respectfully following the decision of the Tribunal in assessee's own case and in absence of any contrary material brought to our notice by the revenue the grounds raised by the revenue on this issue are dismissed. 7. Accordingly the revenue appeal was dismissed. Since nothing contrary was brought to our notice against the order of the Tribunal in the connected cases, therefore, respectfully following the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 12,82,776/- u/s.14A of the I.T. Act which he calculated by taking 0.5% of the average investment. 7. In appeal the Ld.CIT(A) following the decision of the Tribunal in assessee's own case vide consolidated order dated 27-09-2012 deleted the disallowance made by the AO by observing as under : "4.2 This has also been elaborately discussed in the appellate order passed by the undersigned vide No. PN/CIT(A)-II/DCIT Cir-2, PN/154/10- 11 dated 06.09.2011 and upheld by the Hon'ble ITAT Pune, vide combined order dated 27.09.2012 passed in the case of the appellant and other 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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