Principal Commissioner Ofincome-Tax-4 v. Sarang V. Kotwal, Jj.date: 09[Th] April, 2019

1 / 3 06-ITXA-264-17-&-1460-17.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.264 OF 2017WITHINCOME TAX APPEAL NO.1460 OF 2017 Principal Commissioner ofIncome-Tax-4 .... Appellant versus Smt. Vimla S. Jajoo... Respondent ….... Mr.Suresh Kumar, Advocate for Appellant.Mr.Suresh Kumar, Advocate for Appellant. Mr.Madhur Agrawal i/b. Mint & Confreres, Advocate for Respondent.Mr.Madhur Agrawal i/b. Mint & Confreres, Advocate for Respondent. CORAM : AKIL KURESHI & SARANG V. KOTWAL, JJ.DATE: 09[th] APRIL, 2019. P.C. : 1. These Appeals, arising out of the common background, are heard and would be disposed of by this common judgment. For convenience we may record facts from Income Tax AppealNo.264/17. 2 / 3 06-ITXA-264-17-&-1460-17.odt 2. These Appeals filed by the Revenue to challenge the judgment of Income Tax Appellate Tribunal, relate toassessment year 2008-2009. Following question is presented forour consideration; “Whether on the facts and in the circumstances of thecase and in law, the Hon'ble ITAT erred in deleting thedisallowance made by the A.O. of STCG amounting toRs.11,16,91,229/- as Business Income?” 3. It is undisputed position that similar issue came up for our consideration in Income Tax Appeal No.338/17. TheRevenue’s Appeal was dismissed by an order dated 15/03/2019making following observations; “2. The Respondent Assessee is anindividual. The issue raises out of her return ofincome for the year 2006-07. She had offered thegain of Rs.5.60 Crores (rounded of) upon sale ofshares as short term capital gain. The AssessingOfficer however held that the same would give rise toher business income. CIT (Appeal) and tribunal heldin favour of the assessee mainly on the ground that in the earlier assessment years the assessee hadconsistently shown the receipts of sale of share ascapital gain which the revenue had also accepted. 3. We do not find any error in view oftribunal. The tribunal had noted that in the earlieryears the assessee had suffered loss. Therefore in thecurrent year if the income was to be treated asbusiness income, capital loss of the earlier yearwould not be assessable against such income. Itappears that the Assessing Officer desired to taxincome as business income in the current year, inview of the change in tax rates, between short termcapital gain and business income, which in theearlier years was same. 4. In such circumstances, no question oflaw arises, the Appeal is dismissed.” 4. In the result, no question of law arises. Income TaxAppeals are dismissed. (SARANG V. KOTWAL, J.) (AKIL KURESHI, J.)