Principal Commissioner Of Incometax Central-1, Kolkata v. Vivek Mundra

ITAT/59/2018 IA No.GA/1/2018 (Old No.GA/593/2018)IA No.GA/2/2018 (Old No.GA/594/2018) IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX CENTRAL-1, KOLKATA -Versus- VIVEK MUNDRA Appearance:Mr. Prithu Dudheria, Adv....for the appellant. Mr. Pratyush Jhunjhunwala, Adv.Mr. S. Rudra, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 12[th] April, 2022. The Court : We have heard Mr. Prithu Dudheria, learnedstanding counsel appearing for the appellant/revenue and Mr.Pratyush Jhunjhunwala, learned Advocate assisted by Mr. S.Rudra, learned Advocate appearing for the respondent/assessee. There is a delay of 129 days in filing the appeal. Wehave perused the affidavit filed in support of the applicationfor condonation of delay. We are satisfied with the reasonsgiven therein. Accordingly, the delay in filing the appeal iscondoned and the application for condonation of delay (IANo.GA/1/2018 (old No.GA/593/2018) is allowed. Re: ITAT/59/2018: This appeal filed by the revenue under Section 260A ofthe Income Tax Act, 1961 (the ‘Act’ in brevity) is directedagainst the order dated 2[nd] June, 2017 passed by the Income TaxAppellate Tribunal, “C” Bench, Kolkata (the ‘Tribunal’ in short)ITA No.2171/Kol/2014 for the assessment year 2010-11. The revenue has raised for the following substantialquestions of law for consideration: “a) Whether on the facts and in the circumstances of thecase, Ld. Tribunal has erred in law as well as on factsin dismissing the appeal of the revenue and upholding theorder of the CIT(Appeals) by treating the income ofRs.3,02,85,462/- earned on trading of shares as shortterm capital gains instead of income from business andprofession by disregarding the clear findings of theassessing officer that the main motive of the assesseewas to earn profits by trading in shares rather thaninvestments ?case, Ld. Tribunal has erred in law as well as on factsin dismissing the appeal of the revenue and upholding theorder of the CIT(Appeals) by treating the income ofRs.3,02,85,462/- earned on trading of shares as shortterm capital gains instead of income from business andprofession by disregarding the clear findings of theassessing officer that the main motive of the assesseewas to earn profits by trading in shares rather thaninvestments ? b) Whether on the facts and in the circumstances of the caseconclusion arrived at by the Ld. Tribunal in holding thesurplus earned by the assessee on sale of shares as shortterm capital gain and not as business income by ignoringthe fact that share transaction were connected with thefinance business of the assessee and it was done with themotive of not making investment but to earn profit to beused in his finance business, is perverse ?conclusion arrived at by the Ld. Tribunal in holding thesurplus earned by the assessee on sale of shares as shortterm capital gain and not as business income by ignoringthe fact that share transaction were connected with thefinance business of the assessee and it was done with themotive of not making investment but to earn profit to beused in his finance business, is perverse ? We have heard Mr. Prithu Dudheria, learned standingcounsel for the appellant/revenue and Mr. Pratyush Jhunjhunwala,learned Advocate assisted by Mr. S. Rudra, learned Advocate forthe respondent/assessee. A computation of the tax effect in this appeal has beenplaced before us from which it is seen that the tax effect is₹46,79,105/-. If that be so, the revenue cannot pursue this appealon the ground of low tax effect. Accordingly, the appeal(ITAT/59/2018) stands dismissed on the ground of low tax effect.Consequently, the substantial questions of law suggested by therevenue are left open. In the result, the connected application for stay IANo.GA/2/2018 (Old No.GA/594/2018) also stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.Pal/As.