9911796707
Advanced Search 
TMI Blog2021 (11) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that the assessee has 50% shareholding in the above said company and the company had reserves and surplus of Rs. 36,92,008/- as on 31st March 2008. When the assessee was called upon to explain the transaction, the assessee submitted that the said advance was not loan but advance received pursuant to the transaction and also submitted a copy of the audited accounts of the said company. The assessee submitted break-up of the balance outstanding in his books of accounts as below:- 1. Loan Account Rs. (12, 64,000) 2. Deposit for office hire Rs. 24, 75,000 3. Transfer Account Rs. 19, 50,000 4. Balance as per balance sheet Rs. 31, 61,000 4. The assessee submitted that the balance as per books of accounts were reconciled with Vogue Property Developers Pvt. Ltd. The Assessing Officer rejected the submissions of the assessee and proceeded to treat the difference between closing balance of Rs. 31,61,000 and opening balance of Rs. 20,64,000 as loan taken by the assessee from the above said company (Rs. 10,97,000) as deemed dividend and made addition in the hands of the assessee. Aggrieved with the above order assessee filed an appeal before Ld CIT(A) and filed a deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2,064,000 from the company. During this assessment year, the assessee has received Rs. 5,650,000 and paid Rs. 425,000. The amount received by the assessee from the company which includes repayment of advances which was paid during the previous assessment year, additional rental advances received from the company and advance for sale of plot to the company. In the net result, assessee has received Rs. 1,097,000 additional funds from the company. As per the balance sheet declared by the above said company it is disclosed as deposits of Rs. 3,161,000, which tallies with the Ledger accounts declared by the assessee in his books of account. The break-up declared by the assessee which clearly indicates that assessee has paid Rs. 1,264,000 as additional advance to the company, received Rs. 2,475,000 as rental advance and received Rs. 1,950,000 as advance for sale of plot. We notice from the records submitted before us indicate that the assessee was having regular transactions with the company and paid advances to the company in the earlier assessment year and this year assessee has entered into transactions like sale of plot to the above said company and also intend to give office sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in total of 69,25,386 scripts, scripts in derivatives - 65,12,850 scripts, 343,236 scripts in short term capital gain and 69,300 scripts in long term capital gain. Considering the volume of transactions carried on by the assessee and huge amount paid by the assessee towards brokerage, service tax and STT charges, the Assessing Officer treated the transactions carried on by the assessee as business transaction and rejected the claim of the assessee that income is chargeable under the head income from capital gains. 9. Aggrieved with the above order, the assessee preferred an appeal before CIT(A). After considering the submissions of the assessee, Ld CIT(A) agreed with the findings of the assessing officer and he observed that AO has brought out ample facts on record to prove his contention that assessee was engaged in the business of share trading, the frequency and volume of transaction was undoubtedly very high, the period of holding was low, the investment and the year end dividend income were minuscule compared to the traded volume and the assessee had used borrowed funds and also paid interest thereon. Accordingly he opined that the facts clearly indicates that the transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which was held as investment for more than 12 months as long-term capital gains. It was submitted before us that assessee should be allowed to claim the benefit under the head capital gains based on the investment portfolios held by the assessee during this year and also assessee was following this method of holding shares in investment portfolio over the years. It was submitted before us that as per circular No. 6/2016 of CBDT, in respect of listed shares and securities if held more than 12 months immediately preceding the date of its transfer, it is a choice of the assessee to treat the income arising from the transfer of those shares as capital gain and revenue should not object to it. Considered the submissions and considering the statement submitted before us, it indicates that assessee had shares held for more than 12 months and we are in agreement with the assessee that assessee can have choice of treating the income under the head capital gains as per the circular No. 6 above 2016 dated 29 February 2016 and also in our opinion that statements submitted by the assessee needs verification, therefore we find it appropriate to remit this issue back to the file of assessing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, that the principle of res judicata is not attracted since each assessment year is separate in itself. The Tribunal held that there ought to be uniformity in treatment and consistency when the facts and circumstances are identical, particularly in the case of the assessee. This approach of the Tribunal cannot be faulted. The revenue did not furnish any justification for adopting a divergent approach for the assessment year in question. Question (b), therefore, does not also raise any substantial question. 4. Insofar as Question (c) is concerned, again there cannot be any dispute about the basic proposition that entries in the books of account alone are not conclusive in determining the nature of income. The Tribunal has applied the correct principle in arriving at the decision in the facts of the present case. The finding of fact does not call for interference in an appeal under section 260A. No substantial question of law is raised. The appeal is accordingly dismissed." 14. Considering the above findings, we direct the assessing officer to complete the assessment based on the ratio of above decision. Accordingly ground No.2, 3 and 4 are allowed for statistical purpose. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Therefore, he rejected the claim made by the assessee under section 54B of the Act. 17. Aggrieved with the above order assessee is in appeal before us. Ld AR submitted that assessee had made a new claim before Ld CIT(A) and prayed that the claim of the assessee with regard to agricultural activity on the new land purchased by the assessee and the relevant documents were never verified by the tax authorities, he prayed that it may be remitted back to assessing officer to verify the claim of the assessee and he submitted that new claim of deduction can be raised any time before appellate authorities and he relied on the case of Prithvi brokers and shareholders (2012) 349 ITR 336 (Bombay). On the other hand Ld DR agreed that this issue may be remitted back to AO however he relied on the findings of Ld CIT(A). 18. Considered the rival submissions and material on record. We notice that assessee has claimed deduction under section 54B first time before Ld CIT(A) and Ld CIT(A) rejected the claim of the assessee without going into the documents submitted by the assessee and he rejected the claim based on the information available on record. We're in agreement with the assessee that as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
