Anilkumar R, Bansal, Mumbai vs Department Of Income Tax

आयकर अपील य अ धकरण, मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES "A" MUMBAI सव ी आय.पी. बंसल, या यक सद य एवं ी राजे , लेखा सद य BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND

SHRI RAJENDRA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.209/MUM/2011 नधा रण वष /Assessment Year 2007-08 The ACIT 13(3), बनाम/ Shri Anilkumar R. Bansal, Room No.430, 4 t h Floor, Bansal Steel Agency, Vs. Aaykar Bhavan, MK Road, 515, Giriraj Building, New MarineLines, S.T.Road, Carnac Bunder, Mumbai 40020 Mumbai 400 009

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AABPB 7358M

(अपीलाथ /Appellant) .. ( यथ / Respondent)

Appellant by Ms. C. Tripura Sundari Respondent by Shri Girish Dave सनु वाई क तार"ख / Da te o f Hearing : 03/06/2015 घोषणा क तार"ख /Date of Pronouncement : 03/06/2015

आदे श / O R D E R

PER I.P.BANSAL, J.M:

This is an appeal filed by the Revenue and it is directed against order passed by Ld. CIT(A)-24 Mumbai dated 28/10/2010 for assessment year 2007-

08. Grounds of appeal read as under:

"1.(i) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in directing the AO to assess an amount of Rs.27,32,403/- as Short Term Capital Gains and Rs.51,293/- as Speculation Profit as against the AO assessing the sum of Rs.27,83,696/- (Rs.27,32,403 + Rs.51,293/-) as Business income.

(ii) While doing so the Ld. CIT(A) has erred in not appreciation the factors like volume, frequency, period of holding as criterion to determine the nature of transactions.

2 आयकर अपील सं. / ITA No.209/MUM/2011 नधा रण वष /Assessment Year 2007-08

(iii) Ld. CIT(A) has further erred in not appreciating the fact that the assessee is a registered sub-broker and thus has used his professional skills to exploit the market akin to a trader and not as an investor.?

2. At the outset, it was fairly stated by Ld. AR appearing on behalf of the assessee that the issue raised by the Revenue in the present appeal is covered against the assessee by the decision of the Tribunal in assessee's own case in respect of assessment year 2006-07. Reference in this regard was made to the order of the Tribunal dated 2//5/2012 passed in ITA No.930/Mum/2010, copy of the order was placed on our record and was also given to Ld. DR. Reference was made to para-17 of the order, the same is reproduced for the sake of convenience.

"17. In this backdrop, let us analyse the facts in the instant case. There is nothing on record to suggest that in the immediately proceeding year the Assessing Officer had an occasion to consider the issue in great details. In other words, it is not the case of the assessee that Assessing Officer was aware of the fact that there were repeated transactions of the same scrips; it is not stated that borrowed funds were utilized for purchase of shares and despite such factual matrix the Assessing Officer has accepted the purchase as 'investment' and not as 'stock-in-trade'. It appears that for the immediately preceding assessment year return of income was processed u/s. 143(1) of the Act and hence the Assessing Officer appears to have not applied his mind. In respect of the A.Y 2007-08, learned CIT(A) vide order dated 28.10.2010 accepted the plea of the assessee by following his own order for A.Y 2006-07 which is in appeal before us and, it is mysterious as to why the revenue has not preferred any appeal for the next assessment year. In respect of A.Y. 2009-10, though an order was passed u/s. 143(3) of the Act, the Assessing Officer has not indicated as to whether there were repetitive transactions of same scrips/similar scrips.

At any rate, if principle of res-judicata has to be applied, the same principle should equally apply to the assessee since the assessee has admitted that part of the transaction are speculative/business in nature and no appeal was preferred before the Appellate Tribunal by the assessee. In fact, learned CIT(A) has given categorical finding that 74% of the transactions are speculative in nature and 17% transactions give rise to business income and thus out of the total volume of transactions, 91% are in the nature of business transactions. When this finding was accepted by the assessee, just because few shares were held for more than two months the same transaction would not become investment in nature. In other words, if the assessee is held to be carrying on business in shares, the mode of recording transactions in the books or it's holding period are not determinative factors to understand the nature of transactions. We therefore accept the plea of the revenue by holding that the income earned on sale of shares should be taxed under the head 'profits and gains of business/profession'.

In the result, order of CIT(A) on this issue is set aside and we uphold the order of the AO."

3 आयकर अपील सं. / ITA No.209/MUM/2011 नधा रण वष /Assessment Year 2007-08

2.1 It was further submitted by Ld. AR that the assessee has already filed an appeal against the aforementioned order of the Tribunal and question of law has already been admitted. However, he submitted that as per rule of precedence the Tribunal has to follow its own order. In this manner the appeal was argued by Ld. AR.

3. On the other hand, Ld. DR submitted that the issue is covered in favour of Revenue by the aforesaid order of the Tribunal.

4. We have heard both the parties and their contentions have carefully been considered. The issue is covered against the assessee by the aforementioned decision of the Tribunal. The relevant observations have already been reproduced. Therefore, respectfully following the aforementioned order of the Tribunal we pass similar order and order passed by Ld. CIT(A) on this issue is set aside and order passed by AO is upheld.

5. In the result, the appeal filed by the Revenue is allowed.

Order pronounced in the open court on 03/06/2015 आदे श क घोषणा खुले यायालय म) *दनांकः 03/06/2015 को क गई ।

Sd/- Sd/- ( राजे , / RAJENDRA) (आय.पी. बंसल / I.P. BANSAL) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai; *दनांक Dated 03/06/2015 4 आयकर अपील सं. / ITA No.209/MUM/2011 नधा रण वष /Assessment Year 2007-08

आदे श क त ल प अ!े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. आयकर आयु.त(अपील) / The CIT(A)- 4. आयकर आयु.त / CIT 5. /वभागीय त न1ध, आयकर अपील"य अ1धकरण, मब ुं ई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER, स या/पत त //True Copy//

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai व. न.स./Vm, Sr. PS