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ITAT restored matter to AO to assess income as business income
ITAT restored matter to AO to assess income as business income
AO treated assessee’s income from sale of shares at Rs 1,08,74,670 as business income, and made addition. CIT(A) allowed assessee’s appeal and directed AO to treat income as Short Term Capital Gain u/s 111A (of Income Tax Act, 1961) instead of business income. ITAT following its Coordinate Bench’s decision in ACIT vs. Hitesh S. Bhagat, restored the matter to AO to assess income as business income.-500636
1. A.O. treated the income of assessee at Rs.1,08,74,670 as business income, and made addition.
2. CIT(A) allowed the appeal of the assessee and directed the AO to treat the income of Rs.1,08,74,670 as Short Term Capital Gain u/s 111A (of Income Tax Act, 1961) instead of business income as treated by AO.
On appeal, the ITAT held as under:
3. Similar issue arose before ITAT "F" Bench in the case of ACIT vs. Hitesh S. Bhagat in ITA No. 6586/Mum/2010 6586/Mum/2010 wherein the Tribunal has set aside the issue against the assessee.
4. Since the facts are similar so following the same reasoning we are of the view that acceptance of the claim for earlier year would not operate resjudicata or estoppel on Assessing Officer for deciding the issue for year under consideration when the facts are not strictly identical.
5. Accordingly we set aside the order of CIT(A) and restore the order of Assessing Officer wherein the income arising from sale of shares has been rightly assessed as business income.
Case Reference - ACIT Vs. Smt. Jaya Talakshi Chheda.
IN THE INCOME TAX APPELLATE TRIBUNAL "H" BENCH, MUMBAI
BEFORE SHRI SHAILENDRA KUMAR YADAV, JM
AND SHRI RAMIT KOCHAR, AM
ITA No. 6354/Mum/2011
(Assessment Year: 2008-09)
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