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TMI Blog2012 (7) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission was paid by account payee cheques. Such commission is a normal business expenditure keeping in view the nature of business the assessee was engaged, dis - allowance is not warranted - in favour of assessee. Treatment of profit of sale of shares - whether as Short term capital gain or business income - Held that:- As the AO himself has accepted that the assessee had made investment in limited number of shares and that profit on shares held for more than 12 months as long term capital gain no point to treat the gain arising out of same class of shares held for less than one year as business income - in favour of assessee. - I.T.A.No. 348/Ind/2011 - - - Dated:- 29-5-2012 - SHRI JOGINDER SINGH, SHRI R.C.SHARMA, JJ. Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Customs (Tax Research Unit) has vide its circular no. 121/3/2010 ST wherein it is mentioned that detention charges is the rent paid for the delay in returning the charges as penal rent it has been emphatically argued that the same is contractual in nature. 4.1.1 The contention of the appellant is correct. The detention charges are in the nature of additional rent for the delay in returning the contatiners. The charges are not for violation of any law which are inadmissible expenditure. In the present case these are the expenses incurred by the appellant for the delay in returning the containers which is a normal and regular procedure of custom and such payment are nothing but in the nature of demurrage and simply because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second ground of appeal is with respect to the disallowance of the expenditure on account of commission paid. The details of the commission payments which have been disallowed by the A.O. have been summarized as under :- (a) Shri Gurudas Pallav M/s First Chemicals 8,500 M/s Hadfield Industries 41,830 50,330 (b) Smt. Shobhana Menon 70,314 Total 1,20,644 4.2.1 The main contention of the appellant is that he has submitted the nature of the services rendered by the recipients by way of debit notes raised by the parties and also the payment of the commission is by way of an account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a normal business expenditure keeping in view the nature of business the assessee was engaged. The categorical finding has been recorded by the Commissioner of Income Tax (Appeals) to the effect that total business undertaken by the assessee was Rs. 11.55 crores on which payment of commission of Rs.18.02 lacs was very reasonable and a routine business expenditure. The Commissioner of Income Tax (Appeals) also observed that the assessee has duly filed copy of debit notes raised by the two recipients indicating nature of services rendered and their PAN was also on record. The findings recorded by Commissioner of Income Tax (Appeals) have not been controverted by bringing any positive material on record. Accordingly, we do not find any infirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gains, depending on the period of holding. The assessee has himself excluded some of the transactions in shares in respect of which delivery was not taken and treated income arising out of such shares as business income. The Assessing Officer accepted the assessee s contention with regard to long term capital gain of Rs. 8,51,495/-. However, he did not allow the profit earned on shares which was held for less than one year as short term capital gain and treated the same as business income on the plea that even though the assessee had made investment in limited number of shares but the frequency of transaction give impression that the assessee is a trader who takes benefit of increase in price and sale after booking short. By the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a motive to earn dividend income thereon. During the year, the assessee has earned dividend of Rs. 77,376/- on the shares so held. The assessee had not borrowed any funds for making investment in shares. Thus, the delivery based transactions were made by the assessee with an investment motive and the income earned therefrom was in the nature of capital gains. As the Assessing Officer himself has accepted that the assessee had made investment in limited number of shares and that profit on shares held for more than 12 months as long term capital gain, we do not find any reason to treat the gain arising out of same class of shares held for less than one year as business income. Whatever transaction was undertaken without delivery of shares, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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