The Principal Commissioner Of Income Tax 3 v. Patel Alloy Steel Co Pvt Ltd

C/TAXAP/808/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 808 of 2018 With R/TAX APPEAL NO. 809 of 2018With R/TAX APPEAL NO. 810 of 2018With R/TAX APPEAL NO. 811 of 2018WithR/TAX APPEAL NO. 250 of 2018With R/TAX APPEAL NO. 251 of 2018With R/TAX APPEAL NO. 252 of 2018With R/TAX APPEAL NO. 646 of 2018With R/TAX APPEAL NO. 647 of 2018 =============================================THE PRINCIPAL COMMISSIONER OF INCOME TAX 3 VersusPATEL ALLOY STEEL CO PVT LTD ============================================= Appearance:MR MANISH BHATT, SR. ADVOCATE for MRS MAUNA M BHATT(174) for the PETITIONER(s) No. 1 TAX APPEAL NOS.808/2018 TO 811/2018, 250/2018 TO 252/2018 SHRI BS SOPARKAR for the RESPONDENT(s) No. 1 TAX APPEAL NOS.646/2018 AND 647/2018 SHRI VK PARIKH for the RESPONDENT(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAHandHONOURABLE MR.JUSTICE A.Y. KOGJE Date : 16/07/2018 COMMON ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As common question of law and facts arise in this group of Tax Appeals and as such with respect to the same assessee but different assessment years and as such arise out of the impugned common order passed by the learned Income Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as “Tribunal”), all these Tax Appeals are heard together and present common order is passed. [2.0] Feeling aggrieved and dissatisfied with the impugned common order dated 08.04.2016 passed by the learned Tribunal in ITA No.857/Ahd/2012 for AY 2008-09, the Revenue has preferred the Tax Appeal No.808/2018 with the following proposed questions of law. “[A]Whether the Income Tax Appellate Tribunal is right in law and on facts in deleting disallowance u/s. 40A(2)(b) on account of excess remuneration to directors of Rs.3,21,96,765/-? [B]Whether the Income Tax Appellate Tribunal is right in law and on facts in deleting the disallowance u/s. 14A of Rs.14,57,995/- out of the total disallowance of Rs.31,17,765/-? [C]Whether the Appellate Tribunal is right in law and on facts in holding that the assessee’s profit earned on the sale fo shares shall be treated as capital gain instead of business income?” [2.1] Feeling aggrieved and dissatisfied with the impugned common order dated 08.04.2016 passed by the learned Tribunal in ITA No.1213/Ahd/2012 for AY 2008-09, the Revenue has preferred the Tax Appeal No.809/2018 with the following proposed questions of law. “[A]Whether the Appellate Tribunal is right in law and on facts in deleting disallowance u/s. 40A(2)(b) on account of excess remuneration to directors of Rs.1,40,99,171/-? [B]Whether the Income Tax Appellate Tribunal has substantially erred in deleting the addition made u/s 145A of the Income Tax Act, 1961?” [2.2] Feeling aggrieved and dissatisfied with the impugned common order dated 08.04.2016 passed by the learned Tribunal in ITA No.2617/Ahd/2012 for AY 2009-10, the Revenue has preferred the Tax Appeal No.810/2018 with the following proposed questions of law. “[A]Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the disallowance of Rs.36,26,359/- made u/s 14A of the Income Tax Act, 1961? [B]Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the disallowance made on account of notional interest on delayed refund of security deposits? [C]Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the disallowance of excess payment on Director’s remuneration of Rs.1,33,39,000/- u/s 40A(2)(b) of the Income Tax Act, 1961?” “[A]Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the disallowance of Rs.36,26,359/- made u/s 14A of the Income Tax Act, 1961? [B]Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the disallowance made on account of notional interest on delayed refund of security deposits? [C]Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the disallowance of excess payment on Director’s remuneration of Rs.1,33,39,000/- u/s 40A(2)(b) of the Income Tax Act, 1961?” [2.3] Feeling aggrieved and dissatisfied with the impugned common order dated 08.04.2016 passed by the learned Tribunal in ITA No.2921/Ahd/2012 for AY 2009-10, the Revenue has preferred the Tax Appeal No.811/2018 with the following proposed questions of law. “[A]Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the addition of Rs.2,31,36,464/- made u/s. 145A of the Income Tax Act, 1961? [B]Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the the disallowance of excess payment on Director’s remuneration of Rs.4,31,56,827/- u/s 40A(2)(b) of the Income Tax Act, C/TAXAP/808/2018 ORDER 1961?” [2.4] Feeling aggrieved and dissatisfied with the impugned common order dated 14.09.2017 passed by the learned Tribunal in ITA No.707/Ahd/2015 for AY 2010-11, the Revenue has preferred the Tax Appeal No.250/2018 with the following proposed questions of law. “[A]Whether the Appellate Tribunal has erred in law and on facts in deleting the disallowance made u/s. 14A r.w. Rule 8D? [B]Whether the Appellate Tribunal has erred in law and on facts in deleting the disallowance of Rs.1,26,09,556/- made on account of Directors remuneration u/s 40A(2)(b) of the Act?” [2.5] Feeling aggrieved and dissatisfied with the impugned common order dated 14.09.2017 passed by the learned Tribunal in ITA No.953/Ahd/2015 for AY 2010-11, the Revenue has preferred the Tax Appeal No.251/2018 with the following proposed questions of law. “[A]Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs.3,81,99,984/- on account of disallowance of Directors Remuneration u/s. 40A(2)(b) of the Act? [B]Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs.2,05,61,969/- made u/s 145A of the Act?” [2.6] Feeling aggrieved and dissatisfied with the impugned common order dated 14.09.2017 passed by the learned Tribunal in ITA No.708/Ahd/2015 for AY 2011-12, the Revenue has preferred the Tax Appeal No.252/2018 with the following proposed questions of law. C/TAXAP/808/2018 ORDER “[A]Whether the Appellate Tribunal has erred in law and on facts in deleting the disallowance made u/s. 14A r.w. Rule 8D? [B]Whether the Appellate Tribunal has erred in law and on facts in deleting the disallowance of Rs.4,37,73,636/- made on account of Directors Remuneration u/s 40A(2)(b) of the Act?” [2.7] Feeling aggrieved and dissatisfied with the impugned common order dated 14.09.2017 passed by the learned Tribunal in ITA No.974/Ahd/2015 for AY 2011-12, the Revenue has preferred the Tax Appeal No.253/2018 with the following proposed questions of law. “[A]Whether the Appellate Tribunal has erred in law and on facts in deleting the disallowance of Rs.4,37,73,636/- made on account of Directors Remuneration u/s 40A(2)(b) of the Act? [B]Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs.2,33,55,558/- made u/s 145A of the Act?” [B]Whether the Appellate Tribunal has erred in law and on facts in deleting the disallowance of Rs.4,37,73,636/- made on account of Directors Remuneration u/s 40A(2)(b) of the Act?” [2.7] Feeling aggrieved and dissatisfied with the impugned common order dated 14.09.2017 passed by the learned Tribunal in ITA No.974/Ahd/2015 for AY 2011-12, the Revenue has preferred the Tax Appeal No.253/2018 with the following proposed questions of law. “[A]Whether the Appellate Tribunal has erred in law and on facts in deleting the disallowance of Rs.4,37,73,636/- made on account of Directors Remuneration u/s 40A(2)(b) of the Act? [B]Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs.2,33,55,558/- made u/s 145A of the Act?” [2.8] Feeling aggrieved and dissatisfied with the impugned order dated 15.01.2018 passed by the learned Tribunal in ITA No.3158/Ahd/2015 for AY 2012-13, the Revenue has preferred the Tax Appeal No.646/2018 with the following proposed questions of law. “[A]Whether the Appellate Tribunal was right in law and on facts in deleting the disallowance u/s. 14A of the Act, 1961 as disallowed by the AO? [B]Whether the Appellate Tribunal was right in law and on facts in deleting the disallowance u/s 40A(2)(b) of the Act, 1961 as disallowed by the AO?” [2.9] Feeling aggrieved and dissatisfied with the impugned order dated 15.01.2018 passed by the learned Tribunal in ITA No.3340/Ahd/2015 for AY 2012-13, the Revenue has preferred the Tax Appeal No.647/2018 with the following proposed questions of law. “[A]Whether the Appellate Tribunal was right in law and on facts in deleting the disallowance u/s. 40A(2)(b) of the Act, 1961 as disallowed by the AO? [B]Whether the Appellate Tribunal was right in law and on facts in confirming the decision of the CIT(A) in deleting the addition u/s 145A of the Act, 1961? as disallowed by the AO?” [3.0] At the outset it is required to be noted that in most of the appeals the proposed question viz. deleting the disallowance under Section 40A(2)(b) on account of excess remuneration to the Directors; deleting the disallowance under Section 14A deleting the addition under Section 148A of the Income Tax Act, 1961 (hereinafter referred to as “IT Act”) with respect to the unutilized CENVAT credit would be common. [4.0] For the sake of convenience the facts in Tax Appeal No.808/2018 arising out of the ITA No.857/Ahd/2012 for AY 2008-09 are narrated which in nut-shell are as under: [4.1] That the assessee filed the return of income for AY 2008-09 declaring total income at Rs.24,20,54,250/-. A revised return was filed on 17.03.2009 declaring the total income at Rs.23,23,95,910/-. That during the course of the assessment proceedings, it was noticed by the Assessing Officer that there is an extraordinary increase in the salary paid to the Directors (from Rs.94,97,449/- paid in the FY 2003-04 to Rs.4,00,31,600/- paid in [4.0] For the sake of convenience the facts in Tax Appeal No.808/2018 arising out of the ITA No.857/Ahd/2012 for AY 2008-09 are narrated which in nut-shell are as under: [4.1] That the assessee filed the return of income for AY 2008-09 declaring total income at Rs.24,20,54,250/-. A revised return was filed on 17.03.2009 declaring the total income at Rs.23,23,95,910/-. That during the course of the assessment proceedings, it was noticed by the Assessing Officer that there is an extraordinary increase in the salary paid to the Directors (from Rs.94,97,449/- paid in the FY 2003-04 to Rs.4,00,31,600/- paid in the year 2007-08 in the case of Director Shri K.H. Jhaveri) and (from Rs.4,50,000/- paid in FY 2005-06 to Rs.60,01,750/- paid in FY 2007-08 in the case of Director Shri Abhishek K. Jhaveri). Therefore, vide notice dated 13.09.2010, the assessee was requested to furnish justification. Vide letter dated 29.09.2010 the assessee submitted the justification. However, the Assessing Officer was not satisfied with the said justification for the increase in the renumeration of Directors and granting of 10% increase in renumeration every year, the Assessing Officer determined the renumeration at Rs.1,32,96,429/- in the case of Director Shri K.H. Jhaveri and determined at Rs.5,40,000/- in the case of Director Shri Abhishek K. Jhaveri. Consequently, the Assessing Officer made the disallowance under Section 40A(2)(b) of Rs.2,67,35,171/- out of the renumeration of Shri K. H. Jhaveri and made disallowance of of Rs.54,61,570/- out of the remuneration paid to Director Shri Abhishek K. Jhaveri. Therefore, the total disallowance worked out to Rs.3,21,96,741/-. [4.2] During the course of the assessment proceedings the Assessing Officer found from the statement of computation of income that the assessee has shown the income as exempt from tax under Section 10. The Assessing Officer noticed that however no disallowance under Section 14A has been made in respect of expenditure incurred by the assessee in respect of the said income which does not form part of the total income under the IT Act. The assessee was requested to explain why disallowance under Section 14A shoud not be made in respect of the expenditure attributable to the exempt income. The assessee replied to the same, however C/TAXAP/808/2018 ORDER the Assessing Officer was not satisfied with the explanation submitted by the assessee and held that the amount of Rs.31,17,765/- to be added back to the profit as per Profit & Loss accounts for the purpose of computing “Profits and gains of business”, by making disallowance of the aforesaid amount under Section 14A of the IT Act. During the course of the assessment proceedings and from the statement of computation of income the Assessing Officer noticed that the assessee has declared short term capital gain of Rs.1,61,40,648/- and long term capital gain of Rs.82,15,286/-. The Assessing Officer noticed that the assessee has continuously been trading in shares in past years also. On analysis of the transaction of purchase and sale of shares traded by the assessee, the Assessing Officer was of the opinion that nature of the profit earned by the assessee on sale and purchase of shares was not capital gain but it was business profit earned by the assessee in trading activities of shares carried out by the assessee and therefore, the sum shown by the assessee under the head “capital gain” be treated as incme chargeable under the head “profits and gains of business from business or profession”. [4.3] It appears that during the course of assessment proceedings the assessee was requested to explain whether at the time of valuing the closing stock, the amount of tax paid or incurred by the assessee to bring the goods to the place of its location has been included in the value, as provided under Section 145. The assessee replied to the same and submitted that as per the relevant accounting standards the value of the purchases of the raw materials value of the sales and closing stock are shown as CENVAT etc. as per the accounting method being followed. However, the Assessing Officer was not satisfied with the same and held that as per the provision of Section 145A, the value of the closing stock shown by the assessee is required to be further increased by the amount of taxes paid on the raw material lying in the closing stock. Accordingly, the Assessing Officer held that the value of the closing stock of the assessee is to be increase by Rs.47,41,915/- being the taxes paid attributable to the raw material lying in the closing stock. Consequently, the Assessing Officer framed the assessment and assessed the income of the assessee at Rs.32,97,03,690/-. [4.4] Feeling aggrieved and dissatisfied with the assessment order and making above disallowances more particularly under Section 40A(2)(b) and section 14A, treating the income from sale of shares as business income making addition under Section 145A of the IT Act, the assessee preferred the appeal before the learned CIT(A). The learned CIT(A) partly allowed the appeal and confirmed the disallowance made under Section 40A(2)(b) of the IT Act in the case of Shri Abhishek K. Jhaveri. Regarding disallowance of Rs.2,67,35,171/- for the case of Director Shri K.H. Jhaveri, the learned CIT(A) confirmed the disallowance to the extent of Rs.1,81,24,270/- and directed to delete the balance of Rs.1,40,99,171/-. [4.5] Now, so far as the disallowance made under Section 14A read with Rule 8D of Rs.31,17,765/-, the learned CIT(A) deleted the disallowance made under Section 14A of the IT Act. [4.6] Now, so far as treating the income from sale of shares as business income and disallowing the claim of the assessee on capital gain, the learned CIT(A) confirmed the action of the Assessing Officer by observing that the assessee was regularly engaged in share trading business during the year under consideration and earlier orders. [4.7] Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A) the assessee preferred the appeal before hte learned Tribunal being ITA No.857/Ahd/2012 for AY 2008-09. The Revenue also preferred the appeal being ITA No.1213/Ahd/2012 for the AY 2008-09. That by impugned common order the learned Tribunal has allowed the appeal preferred by the assessee being ITA No.857/2012 and has dismissed the appeal preferred by the Revenue and has deleted the disallowance under Section 40A(2)(b) made by the Assessing Officer on account of excess remuneration to Directors of Rs.3,21,96,765/- and also directed to delete the disallowance under Section 14A of Rs.14,57,995/- out of the total disallowance of Rs.31,17,765/- and also observed and held that the assessee’s profit earned on sale of shares shall be treated as capital gain instead of business income. [4.8] Feeling aggrieved and dissatisfied with the impugned order passed by the learned Tribunal deleting the impugned order passed by the learned Tribunal deleting the disallowances under Section 40A(2)(b) of the IT Act on account of excess remuneration to the Directors; deleting the disallowance under Section 14A read with Rule 8D and holding that the assessee’s profit earned on the sale of shares shall be treated as capital gain instead of business income, the Revenue has preferred the Tax Appeal Nos.808/2018 and 809/2018 for AY 2008-09 with the following proposed questions of law. Tax Appeal No.808/2018 [4.8] Feeling aggrieved and dissatisfied with the impugned order passed by the learned Tribunal deleting the impugned order passed by the learned Tribunal deleting the disallowances under Section 40A(2)(b) of the IT Act on account of excess remuneration to the Directors; deleting the disallowance under Section 14A read with Rule 8D and holding that the assessee’s profit earned on the sale of shares shall be treated as capital gain instead of business income, the Revenue has preferred the Tax Appeal Nos.808/2018 and 809/2018 for AY 2008-09 with the following proposed questions of law. Tax Appeal No.808/2018 “[A]Whether the Income Tax Appellate Tribunal is right in law and on facts in deleting disallowance u/s. 40A(2)(b) on account of excess remuneration to directors of Rs.3,21,96,765/-? [B]Whether the Income Tax Appellate Tribunal is right in law and on facts in deleting the disallowance u/s. 14A of Rs.14,57,995/- out of the total disallowance of Rs.31,17,765/-? [C]Whether the Appellate Tribunal is right in law and on facts in holding that the assessee’s profit earned on the sale fo shares shall be treated as capital gain instead of business income?” Tax Appeal No.809/2018 “[A]Whether the Appellate Tribunal is right in law and on facts in deleting disallowance u/s. 40A(2)(b) on account of excess remuneration to directors of Rs.1,40,99,171/-? [B]Whether the Income Tax Appellate Tribunal has substantially erred in deleting the addition made u/s 145A of the Income Tax Act, 1961?” Similar orders are passed by the learned Tribunal with respect to other assessment orders deleting the disallowance under Section 40A(2)(b) on account of excess renumeration to Directors; deleting the disallowance under Section 14A and the addition under Section 145A of the IT Act. [5.0] Heard Shri Manish Bhatt, learned Senior Advocate appearing C/TAXAP/808/2018 ORDER on behalf of the Revenue and Shri B.S. Soparkar, learned Advocate appearing on behalf of the assessee in respective appeals. [5.1] The chart showing the issues in respective Tax Appeals is as under: C/TAXAP/808/2018 ORDER [5.2] Now, so far as the impugned order passed by the learned Tribunal deleting the disallowance under Section 40A(2)(b) on account of the excess renumeration to the Directors is concerned, at the outset it is required to be noted that making disallowance under Section 40A(2)(b) on account of excess renumeration to Directors, the Assessing Officer considered the renumeration paid to the Directors in the year 2004-05 though in the preceding assessment year i.e. AY 2007-08 the renumeration paid to the Directors was Rs.3,25,65,315/- against the renumeration paid in the current year at Rs.4,31,00,600/-. It is not in dispute that the assessee’s renumeration in the preceding assessment years stand accepted. Therefore, the learned Tribunal rightly observed that in view of the matter the Assessing Officer was not justified in comparing the impugned renumeration with that paid in AY 2004-05. The learned Counsel appearing on behalf of the Revenue is not in a position to dispute that in AY 2007-08 (FY 2006-07) the renumeration paid was Rs.3,25,65,315/- to the Director Shri K.H. Jhaveri, which was accepted. Therefore, looking to the increase in the profit and the business when in the subsequent year i.e. year in consideration the learned Tribunal accepted the renumeration paid to the Director as admissible, it cannot be said that the learned Tribunal has committed any error. The learned Tribunal has rightly observed that once the renumeration paid in the preceding year was accepted by the Revenue, the Assessing Officer was not justified in considering and/or comparing the renumeration paid in AY 2004-05. We are in complete agreement with the view taken by the learned Tribunal. No substantial question of law arise. [5.3] Under the circumstances, Tax Appeal Nos.808/2018 and 809/2018 for AY 2008-09, Tax Appeal No.810/2018 for AY 2009-10, Tax Appeal No.811/2018 for AY 2009-10, Tax Appeal No.250/2018 for AY 2010-11, Tax Appeal No.251/2018 for AY 2009-10, Tax Appeal No.252/2018 for AY 2011-12, Tax Appeal No.253/2018 for AY 2011-12 and Tax Appeal No.647/2018 for AY 2012-13 with respect to deleting the disallowance under Section 40A(2)(b) stand dismissed. [6.0] Now, so far as the deletion of the disallowance under Section 14A read with Rule 8D is concerned, while deleting the said disallowance the learned Tribunal in para 16 has observed as under: “16.The appellant has also raised other trivial issues which cannot be accepted in view of the express provisions of sec. 14A r.w. Rule 8D of the IT Act. I have also perused various case laws cited by the appellant but the ratio of these case laws will not apply in the year under consideration since provisions of Rule 8D are applicable for the AY 2008-09. Since the A.O. Had scrupulously followed provisions of rule 8D accordingly, I do not have any hesitation in agreeing with the contentions of the ld. A.O. In view of above, disallowance of Rs.31,17,765/- made by the A.O. u/s.14A of the I.T. Act is confirmed. This ground of appeal is dismissed Heard both sides. Relevant records perused. There is no dispute about the fact that the above stated direct expenditure already stands accepted. Ld. Authorized representative draws our attention to C/TAXAP/808/2018 ORDER assessee’s P & L account demonstrating assessee’s interest income in the impugned assessment year as Rs.2,59,32,546/- with interest expenditure of Rs.9,33,696/- resulting in net positive figure. A co-ordinate bench of the Tribunal in ITA 1277/Kol/2011 DCIT vs. Trade Apartment Ltd. decided on 30-03-2012 holds that such an interest disallowance is not to be made in absence of any net interest expenditure upon setting off interest credited to P & L account. Another co-ordinate bench in ITA 2228/Ahd/2012 ITA vs. Karnavati Petro-chem Ltd. Decided on 05-07-2013 echoes the very principle. The Revenue is unable to draw any distinction on facts or law. This proportionate interest disallowance is accordingly deleted.” [6.1] It has come on record that the assessee was already having the enough suprlus funds. Therefore, the said issue is already covered against the Revenue in light of the decision of the Division Bench of this Court in the case of Principal Commissioner of Income-tax-3 vs. Nirma Credit & Capital (P.) Ltd. reported in [2017] 85 taxmann.com 72 (Gujarat) as well as in the case of Principal Commissioner of Income Tax-4 vs. Sintex Industries Ltd. reported in [2017] 82 taxmann.com 171 (Gujarat) and in the case of Principal Commissioner of Income Tax vs. India Gelatine and Chemicals Ltd. reported in [2015] 376 ITR 553 (Gujarat). We are in complete agreement with the view taken by the learned Tribunal as observed hereinabove. The issue is already concluded against the Revenue in view of the three decisions of the Divisoin Bench of this Court. Under the circumstances, Tax Appeal / respective Tax Appeals qua deleting the disallowance under Section 14A read with Rule 8D deserves to be dismissed. [6.2] There is one additional issue in Tax Appeal No.810/2018 arising out of the ITA No.2617/Ahd/2012 for AY 2009-10 viz. [6.2] There is one additional issue in Tax Appeal No.810/2018 arising out of the ITA No.2617/Ahd/2012 for AY 2009-10 viz. deleting disallowance made by the AO on account of notional interest on delayed refund of security deposits. It is required to be noted that it has been found that no interest was due in the year under consideration – AY 2009-10. It has come on record and it is not disputed that infact the assessee had already received his security amount latest by 23.08.2007 relevant for AY 2008-09 only and not to the impugned AY 2009-10. Therefore, as rightly observed by the learned CIT(A) as well as the learned Tribunal the deemed interest could not have been made in the assessment year under consideration i.e. AY 2009-10. Under the circumstances, the learned Tribunal has rightly deleted the disallowance made on account of notional interest on delayed refund of security deposits. [7.0] In view of the above and for the reasons stated above, the following order is passed. 1.Tax Appeal No.808/2018 is DISMISSED so far as question Nos.[A] & [B] are concerned. However, the Tax Appeal No.808/2018 is ADMITTED to consider the following substantial question of lawNos.[A] & [B] are concerned. However, the Tax Appeal No.808/2018 is ADMITTED to consider the following substantial question of law “Whether the Appellate Tribunal is right in law and on facts in holding that the assessee’s profit earned on the sale fo shares shall be treated as capital gain instead of business income?”facts in holding that the assessee’s profit earned on the sale fo shares shall be treated as capital gain instead of business income?” 2.Tax Appeal No.809/2018 is DISMISSED so far as proposed question No.[A] is concerned. However, the Tax Appeal No.809/2018 is ADMITTED to consider the following substantial question of law.question No.[A] is concerned. However, the Tax Appeal No.809/2018 is ADMITTED to consider the following substantial question of law. “Whether the Income Tax Appellate Tribunal has substantially erred in deleting the addition made u/s 145A of the Income Tax Act, 1961?” 3.Tax Appeal No.810/2018 is DISMISSED for the reasons stated above.stated above. 4.Tax Appeal No.811/2018 is DISMISSED so far as proposed question No.[B] is concerned and is ADMITTED to consider question No.[B] is concerned and is ADMITTED to consider the following substantial question of law. “Whether the Income Tax Appellate Tribunal has substantially erred in law and on facts in deleting the addition of Rs.2,31,36,464/- made u/s. 145A of the Income Tax Act, 1961? 5.Tax Appeal No.250/2018 is DISMISSED for the reasons stated above.stated above. 6.Tax Appeal No.251/2018 is DISMISSED qua proposed question No.[A] and is ADMITTED to consider the following substantial question of law.question No.[A] and is ADMITTED to consider the following substantial question of law. “Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs.2,05,61,969/- made u/s 145A of the Act?” 7.Tax Appeal No.252/2018 is DISMISSED for the reasons stated above.stated above. 8.Tax Appeal No.253/2018 is DISMISSED qua proposed question No.[A] and is ADMITTED to consider the following substantial question of law. question No.[A] and is ADMITTED to consider the following substantial question of law. “Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs.2,33,55,558/- made u/s 145A of the Act?” C/TAXAP/808/2018 ORDER 9.Tax Appeal No.646/2018 is DISMISSED for the reasons stated above. stated above. 10. Tax Appeal No.647/2018 is DISMISSED so far as question No.[A] is concerned and is ADMITTED to consider the following substantial question of law. 8.Tax Appeal No.253/2018 is DISMISSED qua proposed question No.[A] and is ADMITTED to consider the following substantial question of law. question No.[A] and is ADMITTED to consider the following substantial question of law. “Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs.2,33,55,558/- made u/s 145A of the Act?” C/TAXAP/808/2018 ORDER 9.Tax Appeal No.646/2018 is DISMISSED for the reasons stated above. stated above. 10. Tax Appeal No.647/2018 is DISMISSED so far as question No.[A] is concerned and is ADMITTED to consider the following substantial question of law. “Whether the Appellate Tribunal was right in law and on facts in confirming the decision of the CIT(A) in deleting the addition u/s 145A of the Act, 1961? as disallowed by the AO?” Sd/- (M.R. SHAH, J.) Sd/- (A.Y. KOGJE, J.) Ajay**