TMI Blog2016 (9) TMI 1541X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the above proposition of law, we find no reason to interfere in the order of ld. CIT(A). Hence this ground of appeal of the revenue is dismissed. - ITA No.312/Kol/2014 - - - Dated:- 9-9-2016 - Shri Waseem Ahmed, Accountant Member And Shri S.S.Viswanethra Ravi, Judicial Member For The Appellant : Shri Rajat Kumar Kureel, JCIT-SR-DR For The Respondent : Shri Sunil Surana, FCA ORDER PER Waseem Ahmed, Accountant Member:- This appeal by the Revenue is against the order of Commissioner of Income Tax (Appeals)-XII, Kolkata dated 13.11.2013. Assessment was framed by DCIT, Circle-11, Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 26.12.2011 for assessment year 2009-10. The grounds raised by the Revenue per its appeal are as under:- 1. That on the facts and circumstances of the case and as per law Ld. CIT(A) erred in allowing the gains generated from transaction of shares as capital gain instead of business income. 2. That on the facts and circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the, gone through the findings of the AO and other materials brought on record. In so far as the treatment of long term capital gain and short term capital gain as business income is concerned, I find that the issue is covered in favor of the appellant by the order of the ITAT for the assessment year 2005-06 referred to above. Hence the appellant s appeal on this ground is allowed. The AO is directed to modify the order accordingly. Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us. 5. At the outset, we find that this issue is squarely covered in favour of assessee in its own case in ITA No.152/Kol/2011 dated 12.034.2013 for AY and relevant operative portion of the said order is reproduced below:- 4. We have heard the rival contentions and carefully perused the materials available on record. The ld. DR has supported the order of the ld. AO with respect to the Revenue s appeal and has supported the order of ld. CIT(A) in so far as the assessee s appeal is concerned. The ld. Counsel for the assessee has relied on the facts as brought on record by the AO vis- -vis as considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial Co. Ltd vs ACIT in ITA No.585/Kol/2009 and also in the case of JCIT vs Shri Deo Kumar Saraf in ITA No.411/Kol2009. The crux of the finding that the assets which have been held as investments have been sold on account of capital and not for business. We are inclined to hold the issue as covered in favour of the assessee, in so far as, the Revenue has not been able to bring out any controverting material which the ld. Counsel for the assessee has submitted that the case laws cited fairly cover the facts which the ld. CIT(A) accepted and allowed the assessee s appeal who confirmed the returned income on sale of shares as for capital gains. The appeal of the revenue stands dismissed. Since the issue is already covered in favour of assessee we do not find any reasons to interfere in the order of Ld. CIT(A). Accordingly we uphold. This ground of Revenue is dismissed. 6. Next issue raised by Revenue is that Ld. CIT(A) erred in deleting the addition made by AO for ₹ 50,36,668/- u/s 14A of the Act r.w.s. Rule 8D of the IT Rules, 1962. 7. Assessee during the year has earned income of ₹27,54,699/- as dividend income whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR vehemently supported the order of the AO whereas the ld. AR submitted that AO has invoked the provisions of section 14A of the Act without recording the satisfaction. The ld. AR also drew our attention on page 5 of the paper book and demonstrated that the investment was made out of the owned funds of the assessee. The loan fund was obtained during the year and no part of it was invested in shares. The opening balance of the investment was ₹ 18.31 crores and the loan amount of the opening balance was nil. 10. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset we find that the assessee was having no loan in the previous year and the investment made was of ₹ 18.31 crores. So it is clear that the investment was made out of the owned fund in the previous year. The investment and loan in the year under consideration has increased by ₹ 2.98 crores and 12.25 crores respectively. So at the most the interest pertaining to the increased investment of ₹ 2.98 crores can proportionately be disallowed. Besides the above we also find that the AO has failed to establish whether the borrow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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