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Dy.CIT, Circle 1(1)(1) International Taxation Room No.409, E-2 Block 4th Floor, Civic Centre Near Minto Road New Delhi vs Smt. Asha Kumar Agarwal C/o Yogi Associates, C.A. E-335, East of Kailash New Delhi 110 065
November, 02nd 2018
         IN THE INCOME TAX APPELLATE TRIBUNAL
             DELHI BENCHES: `F', NEW DELHI

       BEFORE SMT. BEENA A PILLAI, JUDICIAL MEMBER
    AND SHRI MAHARISHI PRASHANT, ACCOUNTANT MEMBER

                    ITA No. 3414/Del/2015
                         AY: 2010-11

Dy.CIT, Circle 1(1)(1)      vs. Smt. Asha Kumar Agarwal
International Taxation          C/o Yogi Associates, C.A.
Room No.409, E-2 Block          E-335, East of Kailash
4th Floor, Civic Centre         New Delhi 110 065
Near Minto Road
New Delhi                       PAN: ADCPA4605J



(Appellant)                                     (Respondent)


           Department     by : Sh. Surender Pal, Sr. D.R.
           Assessee by : Sh. R.S. Ahuja, C.A.

              Date of Hearing :    31.10.2018
              Date of Pronouncement:       02/11/2018


                             ORDER
PER BEENA A PILLAI, JUDICIAL MEMBER
    Present appeal has been filed by Revenue against order of
Ld.CIT(Appeals)-42, New Delhi dated 09.03.2015 for A.Y 2010-11
on the following grounds of appeal:
"1. On the facts and in the circumstances of the case and law,
whether Ld.CIT(A) has erred in deleting addition made by the
voluminous shares trading as `business in nature' and holding
that in the light of Circular no.1827 dated 31.08.1989 or CBDT, the
assessee's activities of sale/purchase of shares can only be
considered under the head `Capital Gain', whereas considerations
                                                   ITA 3414/Del/2015 A.Y. 2010-11
                                                         Mrs. Asha Kumar Agarwal



dealt with in the Circular are totally different from the ones in the
instant case.

2. The appellant craves to add, amend, modify or any ground(s)
of appeal at the time or before the hearing of the appeal."







2. Brief facts of the case are as under:
     Assessee filed her return of income on 31/07/10 declaring
total income of Rs.6,81,400/-. The case was selected for scrutiny
and notices under section 143 (2) of the Income Tax Act, 1961
(hereinafter referred to as `the Act') were issued along with
detailed questionnaire. In response to              statutory notices,
representative of assessee appeared before Ld. AO and filed all
necessary details/documents as called for.
2.1.    It was observed by Ld.AO that assessee disclosed Income
from House Property, Short Term Capital Gains and also Income
from Other Sources. Ld. AO observed that assessee during the
year under consideration,     entered into frequent transaction of
sale and purchase of shares. He thus drew a              presumption of
assessee being engaged in business of trading in securities.
2.2.    Ld. AO also observed that during Assessment Year (A.Y.)
2008-09 similar view was taken by          then Ld.A.O.,         which was
reversed by     Ld.CIT(A) therein.   He     thus    on     the     basis      of
assessment order passed for A.Y. 2008-09, made addition in the
hands of assessee under the head `Income from Business and
Profession'.
2.3. Aggrieved by     order of Ld. AO, assessee preferred appeal
before Ld. CIT (A) who deleted addition made by Ld. AO.
3.     Aggrieved by order of Ld. CIT (A) revenue is in appeal before
us now.
                                                                               2
                                               ITA 3414/Del/2015 A.Y. 2010-11
                                                     Mrs. Asha Kumar Agarwal



4.   Ld. Sr.DR submitted that assessee is a non-resident
individual residing in Bahrain,      and is pursuing her teaching
profession over there. He submitted that assessee keeps visiting
India and therefore an element of Permanent Establishment
(P.E.) cannot be ruled out.
4.1. He placed reliance upon the order of Ld. AO and submitted
that assessee       frequently traded in securities and therefore
income earned cannot be held as Capital Gains,               instead it
should be Income from Business and Profession.
4.2. On contrary Ld.Counsel submitted that assessee has been
staying out of India since past 1983. She admittedly visited India
during the year only for 43 days and no business connection
could be established as per section 9 of the Act and DTAA
between India and Bahrain. He submitted that assessee is liable
to be taxed for business profit in Bahrain and not in India. He
also submitted that in subsequent A.Ys being A.Y. 2011-12, and
2012-13, no adverse inference has been made in respect of
income that has been declared by assessee as short term and
long term capital gain, on purchase and sale of shares.
5.   We have perused submissions advanced by both sides in
light of records placed before us.
6.   Assessee being an NRI has been investing in equity and
mutual funds in India. Ld.CIT(A) has observed that there is no
borrowed funds that has been used for this purpose and the
gain/loss has been declared by assessee consistently as income
under the head capital gains. This position has been accepted by
revenue till A.Y.    2007-08, however only for A.Y.         2008-09 &
2009-10 Ld.A.O.      treated capital gain declared by assessee as

                                                                           3
                                             ITA 3414/Del/2015 A.Y. 2010-11
                                                   Mrs. Asha Kumar Agarwal



income from business or profession. Again from A.Y.           2011-12
and 2012-13 assessee had declared income under the head
"Capital Gains", which has been accepted by revenue authorities.
We do not agree with reasoning of Ld.AO that since assessee
travels to India there exist Permanent Establishment. Further it
has been submitted by Ld.Counsel that order passed by Ld. CIT
(A) for A.Y. 2008-09 and 2009-10 has not been appealed by
revenue before this Tribunal, thereby accepted the long standing
position taken by assessee.
6.1. It is also observed that there is no new facts that has been
brought on record in order to deviate from the consistent view
taken by the authorities for A.Y.   2008-09 and 2009-10 which
stands accepted by Ld.A.O.
6.2. We are therefore inclined to uphold the observations of Ld.
CIT (A).
7. Accordingly grounds raised by revenue stand dismissed. 8. In the result appeal filed by revenue stands dismissed. Order pronounced in the open court on 02nd November, 2018. Sd/- Sd/- (MAHARISHI PRASHANT) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER Dt. 02nd November, 2018 *GMV 4 ITA 3414/Del/2015 A.Y. 2010-11 Mrs. Asha Kumar Agarwal Copy forwarded to: - 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - By Order, ASSISTANT REGISTRAR ITAT Delhi Benches 5 ITA 3414/Del/2015 A.Y. 2010-11 Mrs. Asha Kumar Agarwal Date Draft dictated on 01.11.18 Draft placed before author Draft proposed & placed before the second member Draft discussed/approved by Second Member. Approved Draft comes to the Sr.PS/PS Kept for pronouncement on & Order uploaded on : File sent to the Bench Clerk Date on which file goes to the AR Date on which file goes to the Head Clerk. Date of dispatch of Order. 6
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