2016 (4) TMI 657

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....2008 declaring loss of Rs. 23,19,096/-. The case was taken up for scrutiny and the assessment was completed u/s 143(3) of the Income Tax Act, 1961 (in short 'the Act') vide order dt. 30/11/2010; wherein the assessee's loss was determined at Rs. 22,84,800/- in view of the following:- i) Disallowance u/s 14A Rs. 34,292/- ii) Holding Short term Capital gains to be business income Rs. 3,44,303/-   2.2 Aggrieved by the order of assessment dt. 30/11/2010 for Asst. year 2008-09, the assessee preferred an appeal before the CIT(Appeals)-23, Mumbai. The Ld. CIT(A) dismissed the assessee's appeal vide the impugned order dt. 04/03/2013. 3. The assessee, being aggrieved by the order of the CIT(Appeals)-23, Mumbai dt. 04/0....

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.... in the circumstances of the case and in law, the observation of the Assessing Officer that long-term capital gains arising on sale of longterm capital assets is business income is not tenable in law." The CIT(A) ought to have admitted the additional ground of appeal and decided the same. 4. Ground No: 3 4.1 At the outset of the hearing, the Ld.AR for the assessee submitted that the assessee is not pressing this ground in this appeal. In view of this ground no. 3 being not pressed, the same is rendered infructuous and is accordingly dismissed. 5. Ground No. 1- Disallowance u/s u/s 14A r.w. Rule 8D(2)(iii) Rs. 34,292/- 5.1.1 In this ground, the assessee assails the impugned order contending that in the factual matrix of ....

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....e has claimed expenditure on account of delivery charges of Rs. 1,519/-, demat charges of Rs. 10,621/-, stamp charges of Rs. 7,577/- and security transactions charges of Rs. 72,415/- which it was submitted are to be attributed to the earning of the aforesaid exempt dividend income. The Ld. AR submitted that it is the aforesaid factually erroneous observation of the authorities below that led to the unwarranted disallowance of Rs. 34,292/- made u/s 14A r.w. Rule 8D(2)(iii), which ought to be deleted. 5.2 Per contra, the Ld. DR for revenue supported the orders of the authorities below. 5.3.1 We have heard the rival contentions and perused and carefully considered the material on record. The facts as emanate from the record are that the ....

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....e same. Consequently ground no.1 of the assessee's appeal is allowed. 6. Ground No. 2 6.1 In this ground, the assessee assails the impugned order contending that the Ld. CIT(A) ought not to have upheld the action of the Assessing Officer in holding the ' capital gains' of Rs. 3,41,303/- on sale of short term capital assets(i.e.STCG.) as ' business income' on account of share trading activity. In this regard, the Ld. AR submitted that the very same issue was considered by the co-ordinate bench of this Tribunal in the assessee's own case for Asst. year 2006-07 and held in favour of the assessee. In its order in ITA No. 2133/Mum/2010 dt. 19/09/2014 the Tribunal after considering the issue at paras 6 to 11 thereof, at para 12 has held and....