Gujarat High Court
Commissioner Of Income Tax Ahmedabad ... vs Nita Madhu Patel....Opponent(S) on 2 February, 2015
Author: Jayant Patel
Bench: Jayant Patel, S.H.Vora
O/TAXAP/81/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 81 of 2015
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COMMISSIONER OF INCOME TAX AHMEDABAD III....Appellant(s)
Versus
NITA MADHU PATEL....Opponent(s)
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Appearance:
MR NITIN K MEHTA, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 02/02/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. In the present appeal, Revenue has formulated various questions, but we find that only Question No.A can be canvassed for consideration and the same reads as under:-
"Whether learned Tribunal was justified in deleting the addition of Rs.19,91,409/ and Rs.8,52,25,106/ by directing the A.O., to treat the impugned amounts as shortterm capital gain and longterm capital gain respectively and not as business income?"
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O/TAXAP/81/2015 ORDER
2. The facts show that A.O., in the assessment order dated 16.11.2009 treated the income as business income of the aforesaid respective amounts. In appeal, the Commissioner (Appeals) has allowed the appeal in favour of the Assessee, treating the aforesaid respective amounts as short-term capital gain and long-term capital gain respectively. The Tribunal in the impugned order observed at paragraph 4 as under:-
"4. We have considered rival submissions. We find that the issue of taxability of gain arising out of share transaction as short term and long term capital gains and not as business income, is covered in favour of the assessee with the decision of the ITAT, Ahmedabad Bench in assessee's own case for the immediate preceding assessment year 200506 dated 15.5.2012 (supra), wherein held that the profits on share transaction were assessable as long term and short term capital gain and not as business income. We being in agreement with the decision of the ITAT, Ahmedabad Bench in assessee's own case for earlier assessment year 200506 (supra), decide the issue in favour of the assessee and hold that the gains of share transactions were assessable as short term and long term capital gains, and not as business income, and confirm the orders of the CIT(A) on this issue. Accordingly, the grounds of the appeals of the Revenue for both the assessment years are dismissed."
3. Resultantly, the appeal of the Revenue was dismissed.
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4. We have heard Mr.Mehta, learned Counsel appearing for the appellant. We may record that similar question against the same Assessee was raised in respect of the assessment year 2006-07 in Tax Appeal No.22 of 2015 and this Court, vide order dated 16.1.2015, passed the following order:-
"1. In present appeal, the revenue has formulated various questions of law, but we find that only question No.A can be canvassed for consideration. The same reads as under:
"Whether Ld. Tribunal was justified in deleting the addition of Rs.12,52,424/ and Rs.53,86,262/ by directing the AO to treat the impugned amounts as Short Term Capital Gain and Long Term Capital Gain and not as Business Income?"
2. The relevant facts are that AO treated the income of the shares as business income, whereas CIT (Appeals) treated the income as on investment after considering appropriately the Short Term Capital Gain and Long Term Capital Gain. The Tribunal, in the appeal, by relying upon its earlier decision for the Assessment Year 20052006 taken in ITA No.937/Ahd/2009 dated 15.5.2012 concurred with the view and dismissed the appeal of the revenue. Under the circumstances, the present appeal on the aforesaid substantial question of law.
3. Our attention is drawn by the learned counsel for the appellant to the decision of this Court in Tax Appeal No.71 of 2013 decided on 19.8.2013, wherein earlier decision of the Tribunal in ITA No.937/Ahd/ 2009 which has been relied upon by the Tribunal in the impugned order was carried Page 3 of 5 O/TAXAP/81/2015 ORDER before this Court and this Court, for the reasons recorded therein, did not found any substantial questions of law and the appeal was dismissed. It is also brought to our notice that in respect of Assessment Year 20092010 i.e. subsequent Assessment Year, similar question was raised by preferring appeal by the revenue and this Court vide order dated 25.11.2013 in Tax Appeal No.751 of 2013 found that there is no substantial questions of law as sought to be canvassed and the appeal came to be dismissed.
4. As such, in view of the aforesaid two decisions of this Court in respect of the very assessee for the preceding year and for the respective year, we do not find that any substantial questions of law would arise as sought to be canvassed.
5. However, Mr. Mehta, learned counsel for the appellant attempted to contend that the assessee herself, in the present year of 20062007, has partly treated the income as arising out of the business income and such were not the fact situation in the earlier period, because in those cases, the purchases of the shares were treated as investment.
6. We do not find that such a distinction, as sought to be canvassed, would result into a substantial question, as sought to be canvassed, in the present matter. As such, the principal activity of the assessee is salaried income, but in addition to the same, the shares were purchased and they are sold.
7. We do not find that any substantial question of law would arise, more particularly, when the question is already covered by the above referred decisions of this Court. No case is made out for interference of the order passed by the Tribunal and hence, the appeal is meritless Page 4 of 5 O/TAXAP/81/2015 ORDER and therefore, dismissed.
5. The fact situation in the present case are same, except for the change in the assessment year and the amounts of short-term capital gain and long-
term capital gain. When the principle is the same for giving treatment to the short-term capital gain and long-term capital gain, similar view deserves to be taken.
6. Under these circumstances, we do not find that any substantial questions of law would arise, more particularly when the question is already covered by the earlier decision of this Court.
No case is made out for interference with the order passed by the Tribunal. Hence, the appeal is meritless. Therefore, dismissed.
(JAYANT PATEL, J.) (S.H.VORA, J.) vinod Page 5 of 5