Dr Ramesh C. Shah, Mumbai vs Department Of Income Tax

᮰ी िवजय पाल राव, ᭠याियक सद᭭य, एवं ᮰ी एन. के . िबलै᭦या, लेखा सद᭭य. के समᭃ । BEFORE SHRI VIJAY PAL RAO , JM AND SHRI N.K. BILLAIYA, AM

आयकर अपील सं./I.T.A. No. 864/Mum/2013 ( िनधाᭅरण वषᭅ / Assessment Year : 2009-10 )

Addl. CIT-19(2) बनाम/ बनाम Dr. Ramesh C. Shah rd Room No.315, 3 Floor Vs. 9, Bhupendra Mansion Piramal Chambers, 10 Phirozsha Street Lalbaug, Parel Santacruz (W) Mumbai-400 012. Mumbai- 400 054. ᭭थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAFPS 8772 A (अपीलाथᱮ /Appellant) ... (ᮧ᭜यथᱮ / Respondent)

अपीलाथᱮ ओर से / Shri Luv Kumar (DR) Appellant by : ᮧ᭜यथᱮ कᳱ ओर से/ None Respondent by :

सुनवाई कᳱ तारीख / Date of 01/12/14 Hearing : घोषणा कᳱ तारीख /Date of 14/01/2015 Pronouncement :

आदेश / O R D E R

PER VIJAY PAL RAO, JM:

This appeal by the revenue is directed against the order dated 20/11/2012 of CIT(A) for the assessment year 2009-10. The revenue has raised the following grounds :-

1. On the facts and in the circumstances of the case and in law, the Ld CIT(A) has erred in allowing to treat the Short Term Capital Gain declared by the assessee at Rs.20,96,968/- as such and not as business income, relying on the decision of the Hon'ble ITAT for AY 2004-05 and CIT(A)-XIX for AY 2006-07 respectively in the assessee's own case ignoring the facts that the said decisions have not been accepted by 2 ITA No.864/13 Dr. Ramesh C. Shah

the department.

2. On the facts and in the circumstances of the case and in law, the Ld CIT(A) has failed to appreciate the fact that the assessee has made frequ ent transa ctio ns of sale a nd pur chas e of shar es an d the magnitude of transaction is also huge which clearly establish that the motive for transactions was to earn profit by pursuing an adventure in the nature of trade.

3. On the facts and in the circumstances of the case and in law, the Ld CIT(A) has also erred in relying on the decision of Hon'ble ITAT, Mumbai in the case of Gopal Purohit [29 SOT 117(Mum)] without appreciating the fact that the said decision has not been accepted by the Department.

4. The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the AO be restored.

2. The assessee is a doctor by profession. During the year under consideration, the assessee has shown income from medical profession, income from future trading and income from short term capital gain, as well as income from other sources. The assessee has also earned long term capital gain on sale of shares apart from short term capital gain on sale of shares. The assessee has earned dividend income of Rs.24,92,795/-. The AO treated the short term capital gain as business income and assessed to tax accordingly. On appeal the CIT(A) decided the issue in favour of the assessee by following the decision of this Tribunal in assessee's own case for assessment year 2004-05 and 2006-07.

3. We have heard the ld. DR and considered the relevant material on record. Since nobody has appeared on behalf of the assessee respondent, therefore, we propose to dispose of this appeal exparte. The ld. CIT(A) has decided the issue in para 3.6 as under :-

"3.6 Thus taking into account all the facts and circumstances as well as legal position it is held that the AO was not justified in treating short term capital gains declared at Rs.20,96,968/- as business income. The appellant has predominantly used his own funds and for making investment in shares. The appellant has utilized about 99.67% of its own and family funds to invest in shares. It is pertinent to note that in the case of the appellant for A.Y. 2004-05 the Hon.ble ITAT 'D' Bench had upheld the decision of CIT(A) XIX who had held that income of the appellant was to be taxed as STCG and not as business income. For A.Y. 2006-07, the learned 3 ITA No.864/13 Dr. Ramesh C. Shah

CIT(A)-XIX had also allowed the appeal of the appellant by holding that STCG shown by the appellant are to be taxed as STCG only and not as business income. The facts of the case for this year are more or less similar to the facts and circumstances, of the case in A.Yrs.2004-05 & 2O06-

07.Therefore, following the earlier year's decision of the Hon'ble ITAT and CIT(A)-XIX it is held that the AO was not justified in treating STCG declared by the appellant at Rs.20,96,968/- as business income."

3.1 The grievance of the revenue is that the department has not accepted the decision of this Tribunal for assessment year 2005-06, 2006-07. Since the decision of this Tribunal for the assessment year 2005-06 and 2006-07 has neither been reversed nor stayed by the Hon'ble High Court, therefore, we do not find any reason to interfere with the impugned order of the ld. CIT(A) qua this issue by following the decision of this Tribunal in assessee's own case.

4. The appeal of the revenue is dismissed.

Order pronounced in the open court on 14th January, 2015. . आदेश कᳱ घोषणा खुले ᭠यायालय मᱶ ᳰदनांकः 14/01/2015 को कᳱ गई ।

Sd/- Sd/- (N.K. Billaiya) (Vijay Pal Rao ) लेखा सद᭭य / ACCOUNTANT MEMBER ᭠याियक सद᭭य / JUDICIAL MEMBER मुंबई Mumbai; ᳰदनांक Dated 14/01/2015. व.िन.स./ Jv, Sr. PS

आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant 2. ᮧ᭜यथᱮ / The Respondent. 3. आयकर आयुᲦ(अपील) / The CIT(A)- 4. आयकर आयुᲦ / CIT

5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai

6. गाडᭅ फाईल / Guard file.

आदेशानुसार/ BY ORDER, स᭜यािपत ᮧित //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai