2018 (1) TMI 1142

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....ent Year [AY] 2008-09. 2. The brief background is that the captioned appeal for Assessment Year [AY] 2008-09 contest the order of the Ld. Commissioner of Income- Tax (Appeals)-9 [CIT(A)], Mumbai, Appeal No.CIT(A)-9/AC- 4(2)/16/2011-12 dated 07/12/2011. The assessment for impugned AY was framed by Ld. Assistant Commissioner of Income Tax Range 4(2), Mumbai [AO] u/s 143(3) of the Income Tax Act, 1961 on 15/12/2010 determining income of Rs. 128.74 Lacs after certain adjustments / disallowances as against returned income of Rs. 88.98 Lacs. The assessee contested the same with partial success before Ld. CIT(A) vide impugned order dated 07/12/2011. Aggrieved, the assessee contested the same before this Tribunal vide ITA No. 1506/Mum/2012 order d....

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....outset, drew our attention to the fact that similar issue came before this Tribunal in assessee's own case for AY 2006-07 vide ITA No. 1873/Mum/2010 dated 21/03/2012 where additional alternative ground raised by the assessee has been restored to the file of Ld. CIT(A) with certain directions and therefore, the present matter may also be restored back on similar lines. The Ld. Departmental Representative [DR] fairly conceded the same. 4. Upon perusal of cited order of the Tribunal for AY 2006-07, we find that the matter has been restored back to the file of Ld. CIT(A) in the following manner:- 13. With reference to Ground No.2, the learned Counsel submitted that the gains arising out of sale of shares/units are treated as business income ....

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....as speculation loss has no bearing on the issue and further submitted that the orders in earlier years were not on record. Therefore, he is not in a position to offer his comments on the claim of the assessee. It was submitted that the Assessing Officer and the CIT (A) correctly treated the short term capital gain shown by the assessee as business income as the assessee was trading in the shares and units. 14. In reply the learned Counsel submitted that he has no objection if the matter is remitted back to the CIT (A) for consideration of the additional ground as the Hon'ble Bombay High Court in the case of Lokmat Holdings 322 ITR 43 has considered the scope of section 73 Explanation (2) and therefore, in view of the jurisdictional H....