The Commissioner Of Income Tax – 12, Mumbai v. D.s. Purbhoodas & Company

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.6434 OF 2010 The Commissioner of Income Tax – 12, Mumbai..Appellant. Versus D.S. Purbhoodas & Company..Respondent. Mr.P.C. Chhotaray for the appellant.Mr.B.D. Damodar i/by Kanga & Company for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 7[th] January 2013 P.C. : 1.The question of law raised by the Revenue in this reads thus : “Whether, on the facts and in the circumstances of the case, the Tribunal, in law, was right in sustaining the order of the learned CIT (A) in holding that the profit derived from transfer of investments is taxable as Long Term Capital Gains and not Business Income as held by the Assessing Officer ?” 2.The assessment year involved herein is AY 2005-2006. 3.On perusal of the order passed by the Income Tax Appellate Tribunal, it is seen that the profits derived from transfer of investments during assessment year 2003-2004 have been held to be taxable as long term capital gains and not business income by the Commissioner of Income Tax (A) and the matter is before the Income Tax Appellate Tribunal. The Tribunal has further recorded a finding that on identical facts, the very same assessing officer while completing the assessment for assessment year 2006-2007, has accepted that the profits derived from transfer of investments are liable to be taxed under the head long term capital gains. 4.The counsel for the Revenue is not aware as to whether the appeal pending before the Income Tax Appellate Tribunal relating to assessment year 2003-2004 is disposed of or still pending. In any event, since the assessing officer has admittedly allowed the claim of the assessee for assessment year 2006-2007 and since no case is made out for taking a contrary view, we see no reason to entertain the appeal. The appeal is accordingly dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)