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ACIT- Range-22(1) 4th Floor, Tower-6, Vashi Railway Station Building VashiNavi Mumbai-400 703. Vs. Smt. Monica B. Shah 1401 F, Kukreja Palace Vallabh Baug Lane Extn. Ghatkopar(E)Mumbai-400 077.
July, 24th 2015
                                           , `'  
          INCOME TAX APPELLATE TRIBUNAL,MUMBAI "B" BENCH
                    ,   ,   ,   
      Before S/Sh. Joginder Singh,Judicial Member & Rajendra,Accountant Member
       /.ITA No.6406/Mum/2010,  /Assessment Year-2007-08
     ACIT- Range-22(1)                       Smt. Monica B. Shah
     4th Floor, Tower-6,                     1401 F, Kukreja Palace
     Vashi Railway Station Building      Vs Vallabh Baug Lane Extn.
     VashiNavi Mumbai-400 703.               Ghatkopar(E)Mumbai-400 077.
                                             PAN: AAQPS 4225 F
            ( /Appellant)                       (  / Respondent)
       /.ITA No.6987/Mum/2010,  /Assessment Year-2007-08
     Smt. Monica B. Shah       ACIT- Range-22(1)
     Mumbai..                  Navi Mumbai
                            Vs
           ( /Appellant)             (  / Respondent)
                    /Assessee by                        : Shri Satish Mody
                      / Revenue by                      :Shri Asghar Zain V.P. Sr.AR
                         / Date of Hearing                             :   08 -07-2015
                       / Date of Pronouncement                         :   22 -07-2015
                      , 1961   254(1)                                   
                     Order u/s.254(1)of the Inco me-tax Act,1961(Act)
                         PER RAJENDRA, AM-
Challenging the order dated 26.6.2010 of the CIT(A)-33,Mumbai,the Assessing Officer(AO) and
the assessee have filed cross appeals raising various Grounds of Appeal:
ITA No.6406/Mum/2010
     "1. On the facts and circumstances of the case and in law, the Ld CIT(A) has erred in giving
     direction that income from House property shall be computed on the basis of standard rent /
     municipal value where as both the properties at Ghatkopar, Mumbai and Deolali, Nasik are not
     governed by Rent Control Act and no standard rent has been fixed for these properties by any
     Controller.
     2. On the facts and circumstances of the case and in law, the Ld CIT(A) erred in giving direction
     that wherever assessee has held shares for more than one month that may be treated as short term
     capital gain and if the holding period is less than one month then it should be treated as business
     income. The direction given is contrary to law, therefore, order of CIT(A) may be set aside and
     order of A.O. be restored.
     3. On the facts and circumstances of the case and in law, the Ld CIT(A) erred in deleting
     proportionate expenses of Rs.8,16,667/- out of total expenses of Rs.11, 12,377/- as assessee has
     claimed all expenses against short term capital gain only and not a single rupee was attributed to
     Long Term Capital Gain which is claimed exempt U/s.1 0(38) of the Act.
     4. On the facts and circumstances of the case and in law, the Ld CIT(A) erred in giving direction to
     re-examine and compute 14A disallowance without appreciating the facts that the disallowance
                                                                           ITA/6406/Mum/2010,AY.07-08-Monica



      was computed as per the provisions of section 14A r.w. Rule 8D and therefore, it is prayed that the
      order of CIT(A) may be set aside and order of A.O. be restored.
      5. The appellant prays that, the order of the CIT(A) on the above ground be reversed and that of
      the Assessing Officer be restored.
      6. The appellant craves leave to amend or alter any grounds or add a new ground, which may be
      necessary."
ITA No.6987/Mum/2010
      "1. a. The learned CIT (A) erred on facts and in law in not accepting the decision of the Hon. ITAT
      in the case of Gopal Purohit Vs. JCIT which was accepted by her in A.Y.06-07 .
      b. The learned CIT (A) erred on facts and in law in treating the shares which are held upto one
      month as Profits from business instead of Short Term Capital Gains.
      2. The appellant craves leave to add, alter, amend any word, phrase, sentence, clause and / or
      any of the grounds of appeal. "

2.Assessee,an individual,filed her return on 13.11.2007,declaring income of Rs.87.33 lakhs.The
AO completed the assessment on u/s.143(3)of the Act on 29.12.2009,determining her income at
Rs.1.03 Crores.

2.1.First ground of appeal is about income form house property.During the assessment
proceedings,the AO found that from Schedule D of the balance sheet that she was having five
immovable properties.He asked the assessee as to why deemed rent on properties mentioned in
Schedule D should not be computed.The assessee argued that annual value of Deolali Flat and
Ghatkopar Office has been calculated on Standard Rent,that both the properties were not let out,
that in case of Shanita Jain the Tribunal had accepted,for the AY.2002-03,the ALV based on
standard rent determinable under the rent control act.The AO held that the explanation of the
assessee was not satisfactory.He referred to the provisions of section 23(1)of the Act and held
that both the properties would be governed by 23(1)(a)of the Act,that the assessee had not given
any indicator or any reasonable rent in respect of two properties.He estimated the rent from both
the properties at Rs.10,000/-p.m..After giving standard deduction of 30% he determined annual
rental value at Rs.84,000/- for the year under appeal.
2.2.Aggrieved by the order of the AO the assessee preferred an appeal before the FAA. After
considering the submissions of the assessee and the assessment Order the FAA held that the AO
had estimated rent at Rs.10,000/- per month, that he had not considered the Municipal value
which was a strong evidence representing the earning capacity of the building, that he had
calculated the income from house property only on estimate basis, that no investigation was
carried out to ascertain the actual fair rent of the property, that the AO had failed to state as to
what was the basis/source of his estimation, that fair rent could be ascertained by investigating
the rent by placing similarly placed properties.The FAA relied upon the cases of Sheila Kaushik
(131 ITR 435) and Dewan Daulat Rai Kapoor (122 ITR 700) of the Hon'ble Supreme court. She
also referred to the cases of Ashwin Adekar (ITA/1867/Mum/2006) dt.11.7.08, Reliance
commercial corpn.,(ITA 2035/Mum/98)dt.1.212.03,Park Paper Industries Ltd.(ITA 1239-
1242/Mum/08 dt. 28.08.08).Finally,she held that property for property not let out Municipal
value should be adapted to determine ALV and directed the APO to re-calculate the income from
house property by adopting the standard rent/municipal value as yard stick.
2.3.Before us,Departmental Representative(DR)supported the order of the AO.Authorised
Representative(AR)relied upon the order of the FAA.We have heard the rival submissions and
perused the material before us.

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We find that the AO had determined the ALV without any basis.The FAA has given a
categorical finding in that regard and has held that no investigation had been done to ascertain
the actual fair rent of the property.The FAA has relied upon the judgment of Hon'ble Apex Court
delivered in the case of Sheila Kaushik(supra).She has also referred to the decisions of the
Tribunal in the cases of Ashwin Adekar,Reliance commercial corporation and Park Paper
Industries Ltd.(supra).We find that in the case of Sheila Kaushik the issue has been decided in
favour of the assessee and it has been held that in case of the properties not let out ALV had to
be based on standard rent.The decisions of the Tribunal relied upon by the FAA support the
decision of the FAA.Therefore,we are of the opinion that her order does not suffer from any legal
infirmity.Upholding her order,we decide the Ground No.1 against the AO.




3.Second Ground of Appeal is about Share transactions under taken by the assessee during the
year under appeal.During the assessment proceedings the AO found that the assessee had
declared Short Term Capital Gains(STCG)on sale of shares Rs.75.02 lacs and Long Term
Capital Gains(LTCG)of Rs.2.08 crores on sale of shares and Rs.5.81 lacs on sale of flat. He
further found that her investment in shares as on 31.3.07 was 5.87 crores,that she was having
Demat account in SVS Pvt. Ltd.,that the LTCG on shares was in 14 scrips amounting to Rs.2.08
crores,that out of these shares of 4 companies were received by her from her father after his
demise,that the total amount of capital gain declared on shares was 6.70 lacs, that the remaining
capital gain of 2.01 crores was on shares of 10 companies, that the STCG declared was in nearly
160 scrips. The AO did not accept the contention of the assessee that she should not be treated as
trader in shares and held that during the year she traded in 160 scrips, that in most of the scrips
she had made a number of transactions on different dates, that shares had been traded in huge
volumes on most of the working days of the year.He referred to the decision of Gopal Purohit
(29 SOT 117) and held that she had frequently traded in one single scrip like Ansal
Infrastructure, many a times,that only few occasions the holding period was 3-4 months,that
barring a few shares all the shares had been sold and purchased on regular basis, that the nature
of transactions proved that the shares had not been purchased for investment purposes though the
same has been shown as investment in the balance sheet.Finally,the AO held that share
transactions carried out by the assessee has to be treated as business.
3.1.During the Appellate proceedings,before the FAA the assessee contended that she had
maintained regular books of account wherein two portfolios were maintained,that she was having
investment portfolio,that the investment portfolio comprised the securities which were treated as
capital assets, that she was also maintaining trading portfolio comprising of stock-in-trade that
were treated as trading assets, that she herself had bifurcated the entries and had offered the
resultant profits/loss on the sale of shares as business income/LTCG/STCG separately, that she
was an investor in shares and securities since last several years, that the transactions of sale and
purchase of shares had been charged with security transaction tax, that she had diversified
investments, that diversification did not mean that the assessee had treated investment as stock in
trade or had carried out business.Referring to circular No.4/2007 dt.15.6.07 the assessee further
contended that he was making investment in shares since 1997 and had disclosed shares/
debentures as investment in the balance sheet consistently since then,that the valuation of the
assessee was accepted by the AO in the earlier years,that the intention of the assessee had to be
seen from the date of purchase, that right from the beginning she had treated delivery based
transactions as investment and not as stock-in trade,that she had never converted investment into
stock or had never treated as stock, that all investments were strictly delivery based,that LTCG

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were in respect of shares which were acquired in earlier years, that the AO himself had accepted
that LTCG on shares of 2.08 crores was for the shares that were held for more than 12 months,
that the investments made by her was increasing every year.The assessee referred to the
assessment order passed by the AO u/s. 143(3) for the AY 04-05 wherein STCG of Rs.29.60 lacs
and LTCL of Rs.1.42 lacs was accepted.It was further argued that the assessee did not having
any infrastructure for doing business in stock trading on large scale commercial basis.She
referred to the case of Janak S.Rangwala(11 SOT 627) and Gopal Purohit(supra).
After considering the submission of the assessee and the assessment order,the FAA held that in
the immediately preceding AY.the AO had treated the STCG as business income, that the then
FAA had allowed the appeal filed by the assessee for AY 2006-07,that the FAA had, while
deciding the appeal for AY 06-07,analysed the matter in details and had found that the facts of
the case of the assessee were identical to the facts of case of Gopal Purohit (supra), that the
assessee described the method of earning the income had remained same as in earlier years,that
the methodology of filing the return also remained the same.The FAA referred to the cases of V.
Nages(ITA/5420/ Mum/ 2008-AY-05-06),Sadhana Nabera (ITA/2586/Mum/2009-Dt.26.3. 2010)
and Sugamchand C. Shah (37 DTR 345) and held that wherever the assessee had held shares for
a period of more than 1 month it could be stated that the shares were purchased as investment
and their sale would result in STCG,that wherever shares had been held for less than 1 month the
resultant gain had to be treated as profit from business. Accordingly the FAA directed the AO to
work out and compute the STCG and income from business of the assessee accordingly.

3.2.Before us, the DR partly supported the order of the FAA and argued that direction given by
her about the shares held for more than one month were contrary to the decision of Gopal
Purohit.The AR relied upon the decision of the "F"Bench of the Mumbai Tribunal delivered in
assessee's own case for AY 06-07 (ITA 5655/Mum/2009) dt.4.11.2022.
We have heard the rival submissions and perused the material before us. We find that the
tribunal has mentioned the facts of the case for the AY 06-07 as under:
     "2. The assessee in the present case is an individual who filed the return of
     income for the year under consideration on 16-10-2006 declaring total income of Rs.2,91,69,761/-.
     The said income comprised of short term capital gains of Rs.2,28,16,373/- and income from F & O
     and speculative transaction of Rs.64,29,182/-. The assessee had also declared long term capital
     gains ofRs.1,17,41,141/- arising from sale of shares which were claimed to be exempt u/s.10(38).
     The income earned by the assessee from the dealing in future and option transactions was declared
     by her as business income and the profit earned from delivery based transaction in shares was
     declared as capital gains. During the course of assessment proceedings, the assessee was called
     upon by the Assessing Officer to explain as to why the profit arising from transactions in shares
     shown under the head "Capital Gains" should not be treated as her business income. In reply,
     elaborate submission was made on behalf of the assessee,the gist of which as summarized by the
     AO on page No.2 of his order was as under:
     i) Investment in shares has been made by the assessee out of her own funds.
     ii)        The shares purchased from time to time have been shown in the books of
     account by the assessee as her investment all throughout.
     iii)       Investment made by the assessee was spread out in different shares to
     safeguard her interest,
     iv)       All the transactions of purchase and sale of shares were routed through BSE
     and NSE and the same were delivery based.
     v)         Intention of the assessee in making the transactions of shares has to be seen
     and not volume or frequency of such transactions to determine the nature

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      thereof.
      In support of her case, reliance was also placed by the assessee on the following
      judicial pronouncements:
    i) Arjun Kapur Vs. DCIT 70 ITD 161 (Del.)
    ii) ACIT Vs. Kethan Kumar Shah 242 ITR 83/108.
    iii) Motilal Oswal Vs. Addl. CIT 8 SOT 771.
    iv) Divyaben Shah Vs. DCIT 33 SCL 443.
We further find that before the Tribunal the AR and DR argued as follows
     "6.The learned DR at the outset, invited our attention to the findings / observations recorded by
      the AO in paragraph No. 2.2.1 to 2.2.8 of his order to hold that the profit earned by the assessee
      from the transactions of purchase and sale of shares constituted her business income and not
      capital gains.She strongly relied on the said findings/observations in support of the Revenue'scase
      that the shares were purchased and held by the assessee in the capacity of a trader as stock in
      trade and the profit arising from sale thereof constituted herbusiness income. She contended that
      the learned CIT(Appeals), however, has accepted the treatment given by the assessee to the said
      profits as capital gains without properly appreciating the findings/observations recorded by the AO
      to justify the treatment given by him to the profit earned by the assessee from purchase and sale of
      shares as her business income. She submitted that as clearly made out by the AO referring to the
      relevant facts of the assessee's case, the primary motive of the assessee to undertake the
      transactions in shares was to make profit. She contended that the learned CIT(Appeals), however,
      simply relied on the decision of the Tribunal in the case of Gopal Purohit (supra) and followed the
      rule of consistency to give relief to the assessee on this issue. She relied on the following decisions
      of the Tribunal stating that in the similar facts and circumstances as involved in the assessee's
      case, profit arising from purchase and sale of shares has been held to be business income of the
      assessee:
          i) Shailesh L. Shah vs. DCIT ITA No. 3991 & 3992/Mum/2008; dated 13th July, 2010.
          ii) ACIT vs. Mr. V. Nagesh ITA No. 5410/Mum/2008; dated 24th Sept.,2009.
          iii)Smt. Sadhana Nabera vs. ACIT; ITA No. 2586/Mum/2009,dated 26th March,2010.
          iv) Sarnath Infrastructure (P) Ltd. vs. ACIT 120 TTJ (Lucknow) 216.
      7. The learned counsel for the assessee, on the other hand, submitted that the profit arising from
      sale of shares was declared by the assessee as short term capital gain and long term capital gain
      depending on the period of holding. He submitted that the short term capital gains as well as long
      term capital gains declared by the assessee was treated by the AO as her business income and the
      learned CIT(Appeals) while disposing of the appeal of the assessee vide his impugned order has
      directed the AO to accept the treatment given by the assessee to the profits arising from sale of
      shares as short term capital gains and long term capital gains. He contended that the Department
      in the present appeal has challenged the action of the learned CIT(Appeals) only in respect of
      direction given to the AO to treat the business income as short term capital gains and the decision
      rendered by the learned CIT(Appeals) directing the AO to accept the claim of the assessee for long
      term capital gains has not been challenged by the Department. He contended that the Department
      thus has accepted the assessee as investor in shares when it comes to sell thereof giving rise to long
      term capital gains and there was no reason or justification to treat her as a trader only in respect
      of shares, the profits on sale of which gave rise to short term capital gains. He contended that the
      intention of the assessee cannot be decided merely on the basis of period of holding of shares.He
      submitted that the assessee has all along maintained two portfolios one in respect of F & O
      transactions and transactions in shares without delivery and other in respect of delivery based
      transactions. He submitted that the income arising from F & O and speculative transaction was
      offered by the assessee as her business income and the income from delivery based share
      transactions was offered as capital gains. He contended that any prudent investor will not put all
      his eggs in one basket and holding period of shares and frequency of share transactions would
      depend on market condition. According to him, the motive is capital appreciation of investment

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     made in shares. He submitted that the entire loan amount was used by the assessee in the year
     under consideration for F & O transactions and the investment in delivery based shares was made
     by the assessee out of her own funds. He submitted that all the delivery based shares purchased by
     the assessee were treated as investment in the books of account in the earlier years as well as in the
     subsequent years and the said treatment was accepted by the Department. He submitted that the
     market value of shares acquired by the assessee for Rs.5.99 crores had become Rs.9.30 crores as
     on 31-03-2006. According to him, if the assessee was a trader in shares, he would have certainly
     sold all the shares to book the profit, but the fact that he still preferred to hold the shares clearly
     shows that he was investor in share and not a trader. As regards the decision of the Tribunal in the
     case of Gopal Purohit relied upon by the learned CIT(Appeals) to decide the issue in favour of the
     assessee, he submitted that the said decision has been upheld even by the Hon'ble Bombay High
     Court and even the SLP filed by the Department in that case has been dismissed by the Hon'ble
     Supreme Court. He cited various decisions of the Tribunal stating that a similar issue has been
     decided therein in favour of the assessee following the rule of consistency.
The Tribunal decided the issue against the AO in para-08-09 which reads as under:
     8.We have considered the rival submissions and also perused the relevant
     material on record. The issue involved in the present appeal is whether the shares
     sold by the assessee during the year under consideration giving rise to short term
     capital gains were purchased and held by her as investment or stock in trade. If
     they were purchased and held by the assessee as investment, the profit arising from
     sale thereof would be chargeable to tax in the hands of the assessee under the head
     "Capital Gains" whereas if the same were held by her as stock in trade, the profit
     arising from sale thereof would be chargeable to tax in the hands of the assessee
     under the head "Profits & Gains of business or profession". It is, therefore,
     necessary to ascertain whether the shares were purchased and held by the assessee
     as investment or stock in trade and this will depend upon the intention of the
     assessee at the time of purchase of relevant shares. It is well settled that such
     intention is to be gathered from the relevant facts of each case and as submitted by
     the learned representatives of both the sides, there are certain guidelines laid down
     in the Circulars/Instructions issued by the CBDT from time to time. The coordinate
     Benches of this Tribunal have also summarized some of the important aspects
     which are relevant to ascertain the intention of the assessee so as to decide whether
     the transactions in shares are undertaken by the assessee as investor or as a trader.
     At the time of hearing before us, the learned representatives of both the sides have
     argued their respective cases in the light of these guidelines. However, before we
     examine the facts of the present case in the light of the said guidelines, there is one
     peculiar fact involved in the present case which, in our opinion, has a material
     bearing on the issue involved in the present appeal.
     9.It is observed that the claim of the assessee right from the beginning was that
     all the shares were being purchased and held by her as investor and there was no
     intention on her part to trade in the delivery based shares. Accordingly the profit
     arising from sale of shares was offered by the assessee as capital gains, either short term or long
     term, depending upon the period for which the respective shares were held by her. The AO,
     however, treated short term as well as long term capital gains declared by the assessee as her
     business income. On appeal, the learned CIT(Appeals) treated the assessee as investor in shares
     and directed the AO to accept the claim of the assessee for short term and long term capital gains.
     In the present appeal, the Department has challenged the decision of the learned CIT(Appeals)
     only to the extent it is in respect of short term capital gains. In so far as the claim of the assessee
     for long term capital gains is concerned which has been accepted by the learned CIT(Appeals),the
     Department has not challenged the decision of the learned CIT(Appeals) and this is a peculiar fact
     involved in the present case having material and direct bearing on the issue under

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     consideration.This is because if the Department has accepted that some of the shares were
     purchased and held by the assessee as investment while accepting the decision of the learned
     CIT(Appeals) allowing the claim of the assessee for long term capitalgain arising from sale
     thereof, there is no justification for them to contend that the assessee had purchased and held other
     shares as stock in trade merely because they were sold within a period of one year especially when
     other facts relevant theretoare almost similar. For instance, if one lot of 1000 shares of a
     particular companywas purchased by the assessee in the earlier year and 500 shares of the said lot
     were sold by her in the year under consideration before a period of one year andthe balance 500
     shares were sold again in the year under consideration but after the period of one year, it cannot
     be said that there were two different intentions of the assessee behind purchase of the same lot of
     shares. The intention of the assessee in such case cannot be different and the same in any case,
     cannot be decidedmerelyon the basis of period of holding especially when other material facts
     relevant to the issue are similar. Moreover, the assessee was consistently treated as investor in
     shares by the Department and as rightly held by the learned CIT(Appeals)relying on the decision in
     the case of Gopal Purohit (supra), there wa s no reason to change the said treatment in the year
     under consideration as per the rule of consistency especially when there was no change in the
     relevant facts. We, therefore,find no infirmity in the impugned order of the learned CIT(Appeals)
     treating the assessee as investor in shares and directing the AO to bring to tax the profit arising
     from the transactions of shares under the head "Capital Gains" as short term and long term
     capital gains depending on the period of holding."
Respectfully,following the above order of the Tribunal Ground No.2 is decided against the AO
as the facts and circumstances of the year under appeal are almost similar to the facts of the
earlier years.

4.The next ground of appeal deals with deleting proportionate expenses amounting to Rs.8.16
lacs.During the assessment proceedings,the AO found that the assessee had shown LTCG and
STCG under the head capital gains,that she had claimed LTCG exempt u/s. 10(38) of the Act,
that she had claimed expense of Rs.11.12 lacs against STCG only, that the expense related to
STCG as well as LTCG, that the expenditure was indirectly attributable to LTCG which was
exempt. Making a proportionate disallowance of Rs.8.16 lacs the AO added the said sum to the
total income of the assessee .
4.1.During the appellate proceedings,the assessee argued that the disallowance was made in the
proportion of profits,that expenses were based on the number of transactions that the transactions
under the head LTCG were about 15, that she had hundreds of transactions under the category
STCG.
The FAA,after considering the available material, held that the AO had claimed that the expenses
claimed against the STCG were also indirectly attributable to LTCG, that he had not given any
explanation for making proportionate disallowance, that expenses disallowed on ad hoc basis had
to be deleted.
4.2.Before us,the DR supported the order of the AO and the AR relied upon the order of the
FAA.We find that the AO had made proportionate disallowance assuming that the expenses
claimed to have been incurred against the SRCG were indirectly attributable to LTCG also. But
he has not explained as to what was the basis for arriving at the above conclusions. The AO had
without making any enquiry about the nature of expenses and the number of transactions of
LTCG made an addition of Rs.8,61,667/- . We find that the FAA had deleted the disallowance as
she was of the opinion that adhoc disallowance should not be made.In our opinion, considering
the facts and circumstances of the case the order of the FAA does not suffer from any legal
infirmity.So,confirming her order we decide ground No.3 against the AO.

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5.Last ground of appeal is about direction given by the FAA to re-compute disallowance u/s.14A
of the Act.During the assessment proceedings,the AO found that the assessee had received
exempt income that she had not disallowed any expenditure related to exempt income. He held
that from the books of account maintained by the assessee it was not possible to ascertain the
amount of expenditure directly related to the exempt income.The AO directed the assessee to
submit the computation of income as per Rule 8D of Income tax Rule 1962 (Rules).The assessee
calculated the disallowance at Rs.1.30 lacs. The AO held that the assessee had not computed
0.5% of the investment for making the disallowance. He calculated the disallowance at Rs.3.08
lacs and made total disallowance of Rs.4,39,780/-.
5.1.During the appellate proceedings, the assessee submitted that the assessee had claimed
indirect expenses of Rs.1.49 lacs other that interest expenses in respect of Futures and Options
transactions,that in view of expenses not being claimed in respect of investment no expenses
could be disallowed u/r.8D(iii).
After considering the submissions of the assessee,the FAA held that the AO had made an
estimated disallowance u/s.14A as he could not ascertain the amount of expenditure incurred by
the assessee to earn exempt income,that the she had not filed any new details before her. The
FAA directed the AO to re-examine the issue and make necessary disallowance,if any,as per the
provisions of the Act.
5.2.Before us,the DR left issue to the discretion of the Bench. The AR relied upon the order of
the FAA.We have heard the rival submissions and perused the material before us.We find that
the AO had invoked the provisions of Rule 8D, the AY under appeal is 2007-08, that as per
Hon'ble Jurisdictional High Court Rule 8D was not applicable for the year under consideration.
Therefore,in our opinion the AO was not correct in applying Rule 8D. Secondly, the FAA has
restored back the matter to the file of the AO to re-examine the issue. In our opinion the interest
of Revenue was not adversely affected by the direction of the FAA. In our opinion there is no
need to interfere with her order.Therefore,upholding the order of the FAA Gr. No.4 is decided
against the AO.

ITA No.6987/Mum/2010:
6.The only ground of appeal raised by the assessee is about treating the share transactions for the
shares held upto one month as profit from business instead of STCG and not accepting the
decision of the tribunal delivered in the case of Gopal Purohit (supra).
6.1.While deciding the appeal filed by the AO,we have mentioned the facts of the case in earlier
paragraphs.During the course of hearing before us,the AR relied upon the decision of the
Tribunal delivered in the assessee's own case for AY 06-07 (supra).we find that the Tribunal had
decided the issue against the Revenue and in favour of the assessee,as mentioned in the earlier
part of the order.Respectfully, following the above order of the Tribunal for AY 06-07 we
decided the effective GOA in favour of the assessee .

      As a result,appeal filed by the AO stands dismissed and appeal of the assessee is allowed
                                          .
                      Order pronounced in the open court on 22nd July,2015.
                                             22 ,2015    




                                                8
                                                              ITA/6406/Mum/2010,AY.07-08-Monica




                 Sd/-                                              Sd/-
          (   /Joginder Singh)                        (         / RAJENDRA)
         / JUDICIAL MEMBER                    / ACCOUNTANT MEMBER
/Mumbai, /Date: 22.7.2015
. ..Jv.Sr.PS.
              /Copy of the Order forwarded to :
1.Appellant /                               2. Respondent /   
3.The concerned CIT(A)/      , 4.The concerned CIT /    
5.DR A Bench, ITAT, Mumbai /      ,  ,.. . 
6.Guard File/ 
                                   //True Copy//
                                               / BY ORDER,
                                       /  Dy./Asst. Registrar
                                       ,  /ITAT, Mumbai.




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