Pr. Commissioner Of Income Tax-4 v. Sarang V. Kotwal, Jj.date: 15[Th] March, 2019

1 / 2 09-ITXA-338-17.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.338 OF 2017 Pr. Commissioner of Income Tax-4.... Appellant versus Smt. Vimla S. Jajoo... Respondent ….... Mr.Suresh Kumar, Advocate for Appellant.Mr.Suresh Kumar, Advocate for Appellant. Mr.Percy Pardiwalla, Senior Counsel, a/w Mr.Madhur Agrawal, a/w Mr.Upendera Lokegaonkar i/b. Mint & Confreres, Advocate for Respondent.Mr.Percy Pardiwalla, Senior Counsel, a/w Mr.Madhur Agrawal, a/w Mr.Upendera Lokegaonkar i/b. Mint & Confreres, Advocate for Respondent. CORAM : AKIL KURESHI & SARANG V. KOTWAL, JJ.DATE: 15[th] MARCH, 2019. P.C. : 1. This Appeal is filed by the revenue to challenge thejudgment of Income Tax Appellate Tribunal. Following questionis presented for our consideration; “Whether on the facts and circumstances of the case andin law, the Hon'ble ITAT erred in deleting thedisallowance made by the A.O. of STCG amounting toRs.5,60,07,489/- as Business Income?” 2. The Respondent Assessee is an individual. The issueraises out of her return of income for the year 2006-07. She hadoffered the gain of Rs.5.60 Crores (rounded of) upon sale of shares as short term capital gain. The Assessing Officer howeverheld that the same would give rise to her business income. CIT(Appeal) and tribunal held in favour of the assessee mainly onthe ground that in the earlier assessment years the assessee hadconsistently shown the receipts of sale of share as capital gainwhich the revenue had also accepted. 3. We do not find any error in view of tribunal. Thetribunal had noted that in the earlier years the assessee hadsuffered loss. Therefore in the current year if the income was tobe treated as business income, capital loss of the earlier yearwould not be assessable against such income. It appears that theAssessing Officer desired to tax income as business income inthe current year, in view of the change in tax rates, betweenshort term capital gain and business income, which in the earlieryears was same. 4. In such circumstances, no question of law arises, theAppeal is dismissed. (SARANG V. KOTWAL, J.) (AKIL KURESHI, J.)