2013 (1) TMI 834

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....he assessee from purchases and sale of shares through Portfolio Management Scheme (PMS) operations has to be assessed as business income or as capital gain. All these appeals are being disposed of by a single consolidated order for the sake of convenience. 2. Facts in brief are that all the assessees under reference have been making investment in shares and units of mutual fund for the last several years which had been constantly reflected as investment in the books of account and income from sale of such shares/units had been declared by the assessee and accepted by the department as capital gain. In 2003-04, all these assessees placed certain amount with portfolio manager for purchase and sale of shares under PMS. In the returns of inc....

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....ons. Aggrieved by the decision of CII(A) all the assessees are in appeal before the Tribunal. 4. At the time of hearing of the appeal before the Tribunal, the ld. AR for the assessee at the outset submitted that the dispute raised in these appeals are covered by the decision of the Tribunal in assessees' own case. It was pointed out that in case of Manan Nalin Shah, the authorities had followed the decision taken in assessment year 2003-04 which has already been considered by the Tribunal and decided in favour of the assessee in appeals for assessment years 2003-04 to 2005-06 in ITA No.6166, 2125 and 4126/Mum/2008 vide order dated 6.7.2012. Similarly in case of Nalin P. Shah the issue is covered by the decision of the Tribunal in assesse....

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....certain funds with the PMS Managers. In assessment year 2003-04, the AO had assessed the income as business income which had been upheld by the CIT(A). In further appeal, the Tribunal in case of Manan Nalin Shah in ITA No.6166/Mum/2008 for assessment year 2003-04 noted on examination of PMS that PMS Manager was authorized to purchase, acquire, obtain, take, hold, sell, transfer, substitute or change all or any of the investments made on behalf of the assessee. PMS Manager was also authorized to hold all or any of such investment in his name or at his discretion on behalf of the assessee and make every effort to maximize the value of investment. The PMS Manager was required to provide the assessee with quarterly statement of investment. The ....