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TMI Blog2010 (2) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... use by the partners out of the aforesaid sale promotion expenses is not ruled out even at this stage, hence, we restrict the disallowance to 5% as against 10% of total sale promotion expenses sustained by the ld. CIT(A) - Appeal is partly allowed X X X X Extracts X X X X X X X X Extracts X X X X ..... owing chart to show that on similar facts and circumstances the Tribunal in other cases has accepted the share transactions as short term capital gains: Chart Comparing Volumes with Other Decided Cases Criteria S.K. Finance (Assessee) Laxmichand Kenia Ramji Kenia Dhiraj Kenia Bharat Kenia Kunverji Kenia Period of holding 106 days 134 days 86 days 107 days 116 days 124 days No. of Scrips Purcha -sed 51 106 144 129 142 213 No. of Scrips Sold 49 104 129 105 168 173 Value of Purcha -ses 79,15,605 2,65,81,691 2,45,03,380 1,53,70,408 2,72,94,423 20,08,45,292 Value of Sales 79,35,156 2,38,20,271 2,06,27,334 1,31,47,240 3,69,83,128 10,59,95,053 No. Purcha -se days 315 days 268 days 234 days 261 days 236 days 177 days No. Sale Days 312 days 195 days 214 days 240 days 202 days 162 days In support, he has also filed copy of Tribunal orders in the above cases as under: 1. Shri Laxmichand Kunverji Kenia vs. ACIT in ITA No.2697/Mum/2009 for A.Y. 2005-06 dated 22.10.2009. 2. Shri Dhiraj Devji Kenia vs. ACIT and Shri Ramji Devji Kenia vs. ACIT in ITA No.2701 and 2703/Mum/2009 for A.Y.2005-06 dated 18.8.2009. 3. Shri Bharat Kunverji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its Circular No.4 of 2007 (supra), to show that the shares held by the assessee are as stock in trade and not held as investment. Further, it is evident from the chart filed by the assessee, reproduced hereinabove, that the pattern of purchase and sale of shares by the assessee is almost similar to the other cases, decided by the Tribunal(supra). 9. In CIT vs. Gopal Purohit in IT Appeal No.1121 of 2009 dated 6.1.2010, the Hon'ble Jurisdictional High Court has upheld the finding of the Tribunal holding that the delivery based transactions in the present case should be treated as those in the nature of investment transactions and the profit received therefrom should be treated either as short term or, as the case may be, long term capital gain, depending upon the period of the holding and the finding of the fact arrived at by the Tribunal does not call for interference in an appeal u/s.260A and dismissed the revenue's appeal. 10. In this view of the matter and in the absence of any distinguishing feature brought on record by the revenue we respectfully following the aforesaid decision and consistent view of the Tribunal in the above cases relied on by the ld. Counsel for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowance. In view of the specific provisions of Sec.38(2) r.w.s. 32(1)(ii) of the Act, the application of which has not been controverted by the ld. Counsel for the assessee, the decision in Mukesh K Shah vs. ITO (2005) 92 TTJ 1060(Mum.) relied on by the ld. Counsel for the assessee is distinguishable and not applicable to the facts of the present case. However, keeping in view the totality of the facts and circumstances of the case the disallowance of car expenses and depreciation is restricted to 1/6th as against 1/5th sustained by the ld. CIT(A). The ground taken by the assessee is therefore partly allowed. 16. Ground No.3 is against the partial disallowance of business development expenses Rs.40,004/-. 17. The brief facts of the above issue are that it is observed by the AO that the assessee has claimed business development expenses Rs.4,00,047/-. The expenses are in the nature of food, and gift articles. It is not verifiable whether the entire expenses have been wholly and exclusively laid out for the purpose of business, hence, he disallowed 10% of such expenses i.e. Rs.40,004/- and added to the income of the assessee. On appeal the ld. CIT(A) while observing that the bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the facts and circumstances of the case, including the decision relied on by the ld. Counsel for the assessee we are of the view that the personal use by the partners out of the aforesaid sale promotion expenses is not ruled out even at this stage, hence, we restrict the disallowance to 5% as against 10% of total sale promotion expenses sustained by the ld. CIT(A). The ground taken by the assessee is therefore partly allowed. 21. Ground No.4 is against the sustenance of disallowance of Rs.2,513/- u/s.14A of the Act. 22. At the time of hearing the ld. Counsel for the assessee submits that he does not want to press the above ground which was not objected to by the ld. DR. 23. That being so, and in the absence of any supporting material, the ground taken by the assessee is therefore, rejected being not pressed. 24. Ground No.5 is against the levy of interest u/s.234A, 234B, 234C and 234D. 25. At the time of hearing the ld. Counsel for the assessee submits that consequential relief in this regard be allowed to the assessee which was to objected to by the ld. DR. 26. That being so, and in the absence of any supporting material, we are of the view that the levy of above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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