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of <h1>Tribunal rules in favor of taxpayer, classifies share income as capital gains, disallows section 14A disallowance.</h1> <h3>Dy. Commissioner of Income Tax, Circle-2, Pune Versus Asha Parakh and vice-versa</h3> Dy. Commissioner of Income Tax, Circle-2, Pune Versus Asha Parakh and vice-versa - TMI Issues Involved:1. Classification of income from purchase and sale of shares as Business Income or Capital Gains.2. Disallowance u/s 14A read with Rule 8D.3. Deductibility of Portfolio Management Service (PMS) fees and NSDL charges from capital gains.Summary:1. Classification of Income from Purchase and Sale of Shares:The primary issue was whether the income from purchase and sale of shares through PMS providers should be classified as Business Income or Capital Gains. The AO treated the income as Business Income citing reasons such as the agent role of PMS providers, the frequency and volume of transactions, and the intention to maximize profits. However, the CIT(A) treated the income as Short Term and Long Term Capital Gains, relying on the decision of the Jurisdictional High Court in the case of Gopal Purohit. The Tribunal upheld the CIT(A)'s decision, noting that despite high volume and frequency, the transactions were treated as capital gains by coordinate Benches of the Tribunal in similar cases, including the case of DCIT Vs. KRA Holding and Trading Pvt. Ltd.2. Disallowance u/s 14A read with Rule 8D:The AO disallowed Rs. 5,79,460/- u/s 14A read with Rule 8D as expenses related to earning dividend income. The CIT(A) deleted this disallowance, noting that Rule 8D is not applicable for AY 2007-08 as per the decision of Hon'ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. The Tribunal found no infirmity in the CIT(A)'s order, as no borrowed funds were utilized, and no interest was paid for obtaining such dividend income.3. Deductibility of PMS Fees and NSDL Charges:The CIT(A) held that PMS fees and NSDL charges are not allowable expenditures from capital gains, relying on the decision of the Mumbai Bench of the Tribunal in the case of Devendra Motilal Kothari. However, the Tribunal allowed the claim of the Portfolio Management fees as an allowable expenditure from the capital gains, following the decision in the case of KRA Holding & Trading Pvt. Ltd. The Tribunal emphasized that the expenditure is directly connected to the acquisition and sale of securities and should be allowed as per the provisions of section 48 of the Act.Conclusion:The Tribunal dismissed the revenue's appeal and allowed the assessee's cross-objections, confirming that the income from the purchase and sale of shares through PMS should be treated as capital gains, disallowance u/s 14A read with Rule 8D is not applicable for AY 2007-08, and PMS fees and NSDL charges are deductible from capital gains.
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