Meena Pankaj Tanna, Mumbai vs Department Of Income Tax

ACIT-17(1) बनाम/ Smt. Meena Pankaj Tanna Piramal Chambers Vs. 204-C, Dr. Ambedkar Road, Parel Ratty Lodge, Ground floor, Mumbai-400 012. Dadar TT Mumbai-400 014. थायी ले खा सं . / जीआइआर सं . /PAN/GIR No. : AAC PT 4113 F (अपीलाथ /Appellant) .. ( यथ / Respondent)

Cross objection/ या ेप No.185/Mum/2009 Arising out of आयकर अपील सं./I.T.A. No.1604/Mum/2009 िनधा रण वष / Assessment Year : 2005-06 ) (िनधा

Smt. Meena Pankaj बनाम/ ACIT-17(1) Tanna Vs. Piramal Chambers 204-C, Dr. Ambedkar Parel Road, Ratty Lodge, Mumbai-400 012. Ground floor, Dadar TT Mumbai-400 014. Smt.

थायी ले खा सं . / जीआइआर सं . /PAN/GIR No. : AAC PT 4113 F Cross objector/ या ेपक .. ( यथ / Respondent)

अपीलाथ क ओर से / Appellant by : Shri Asghar Zain V.P. - Sr.AR यथ क ओर से/Respondent by : Shri Nishit Gandhi

सुनवाई क तारीख / Date of Hearing: 14/01 /2015 घोषणा क तारीख /Date of Pronouncement : 11/02/2015

आदे श / O R D E R

Per Sanjay Garg, Judicial Member:

2 ITA No. 1604/Mum/09 The above titled appeal by the revenue and Cross Objection by the assessee have been directed against the order of CIT(A) dated 29/12/2008 and the same are disposed of with this common order.

2. First we take up Revenue's appeal in ITA No. 1604/Mum/2009

2.1 The revenue through its grounds of appeal has agitated the action of the CIT(A) in treating the income from shares as capital gains as against business income treated by the AO.

2.2 At the outset, the Ld. A.R. of the assessee has stated that the tax effect in this appeal is less than Rs.4 lakhs which is below the prescribed limit for filing the appeal before the Tribunal as per the CBDT Circular No.5 dated 10.07.14. The Ld. D.R. has fairly admitted that the tax effect in this appeal is below the prescribed limit of Rs.4 lakhs.

3. Since the tax effect in the present appeal is below prescribed limit, therefore, we are of the view that the appeal of the Revenue is not maintainable. The Central Board of Direct Taxes (CBDT) vide Instruction No.5 dated 10.07.2014 has prescribed the monetary limit for filing the appeal by the department where tax effect is less than Rs.4 lakhs. The Hon'ble Bombay High Court in the case of 'Madhukar Inamdar' - 185 Taxmann. 101 has held that CBDT circular is applicable where the appeals are pending and not only to the appeals which are to be filed after the circular was issued. Similar view has been adopted by the co- ordinate benches of this tribunal in the case of 'ITO vs. Surendermal R. Lodha' in ITA No.1628/Mum/11 for the Assessment Year 2004-05 decided on 25.08.14 and further in the case of 'ITO vs. Shri Kuldeep Ganesh Hake' in ITA No.4284/M/2013 for the Assessment Year 2008-09 decided on 17.09.2014. In view of the aforementioned Instructions of the CBDT and the above judicial decisions on the issue, since the tax effect in the appeal of the Revenue is below the prescribed limit, therefore, the present appeal of the Revenue is not maintainable, consequently, the same is hereby dismissed.

4. In the result, the appeal of the Revenue is dismissed as not maintainable.

5. Cross Objection No. 185/Mum/2009 :-

5.1 The assessee in its cross objections has agitated the action of the CIT(A) in treating the income from sale of shares which were held by the assessee for less than 45 days as business income instead of short term capital gain as claimed by the assessee .

3 ITA No. 1604/Mum/09 5.2 We have heard the rival contentions. We find from the order of the CIT(A), that the ld. CIT(A) after discussion of the over all facts and circumstances of the case has given a categorical finding that it has been established with sufficient evidence, that the assessee's intention was of investment and not in trading in shares. He, however, treated the income from sale of shares which were held by the assessee for less than 45 days as business income.

In our view, once the ld. CIT(A) has held that the assessee was an investor then under such circumstances a different treatment given to the transaction of shares held up to 45 days cannot be said to be justified. It is the intention of the assessee which matters and once such an intention is established, then the assessee is to be treated as an investor. Hence, we set aside the order of CIT(A) on this issue and direct the AO to compute the income of the assessee under the head capital gains as claimed by the assessee.

6. In the result, Cross Objections of the assessee are allowed.

Order pronounced in the open court on 11/02 /2015.

आदे श क% धोषणा खुले यायालय म' (दनांकः 11/02/2015 को क% गई ।

Sd/- Sd/- (B.R. BASKARAN) (SANJAY GARG )

लेखा सदःय / ACCOUNTANT MEMBER याियक सदःय/JUDICIAL MEMBER मुंबई Mumbai; (दनांक Dated 11/02/2015 व.िन.स./ Jv , Sr. PS

आदे श क% ूितिल,प अमे,षत/Copy षत of the Order forwarded to :

1. अपीलाथ/ / The Appellant

2. ू0यथ/ / The Respondent.

3. आयकर आयु1(अपील) / The CIT(A)-

4. आयकर आयु1 / CIT

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

6. गाड फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स0या,पत ूित //True Copy// उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar)

आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai.