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TMI Blog2015 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicable law in deciding that the income was not business income but in fact short term capital gain. The question of law urged, therefore, does not arise. - Decided against revenue. Disallowance under Section 14A - Held that:- The order of the ITAT merely remands the matter for re-adjudication afresh in the light of the directions in Maxopp Investment Ltd. v. CIT, ( 2011 (11) TMI 267 - Delhi High Court ) - Decided against revenue. - ITA No.110/2015, CM Nos.2894-2895/2015 - - - Dated:- 15-4-2015 - S. Ravindra Bhat And R. K. Gauba,JJ. For the Petitioner : Ms Suruchi Aggarwal, Sr Standing Counsel For the Respondent : None ORDER 1. This matter is taken up today as 14.04.2015 was declared a holiday. 2. The only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment to take advantage of concessional tax rate. It is also pertinent to recall the that in his audit report the auditor has also described the naf siness of the assessee company as share trading' and not an investor. Therefore, in the light of above discussion there is no doubt that the profits earned by the assessee in the year were to be assessed as business income and nor short term capital gain. Accordingly, I treat the income of ₹ 41,46,235/- shown by the assessee as short term capital gain as business income. I am satisfied that by showing business income to the extent of ₹ 41,46,235/- as short term capital gain the assessee has furnished inaccurate particulars of his income for which penalty proceedings u/s 271 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 months. That the Assessing Officer accepted the long term capital gain but with regard to short term capital gain, he observed that in the immediately preceding year, the conversion of closing stock of the shares' into investment was to take the advantage of differential rate of tax on short term capital gain and business income. It is submitted by the learned counsel that first of all, if the Department had any objection to the conversion of stock-in-trade to the capital gain, it should have been taken in assessment year 2005-06 in which the conversion took place and not in the year under consideration. He further submitted that even on merits, the issue is settled in favour of the assessee by the decision of Hon'ble Jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompleted the assessment. Having done so, he could not have fallen back upon the facts of the previous years when the conversion took place. Furthermore, we are of the opinion that the ITAT duly considered the applicable law in deciding that the income was not business income but in fact short term capital gain. The question of law urged, therefore, does not arise. 6. So far as the other question with respect to disallowance under Section 14A is concerned, we noticed that the order of the ITAT merely remands the matter for re-adjudication afresh in the light of the directions in Maxopp Investment Ltd. v. CIT, (2012) 347 ITR 272 (Delhi); no interference is, therefore, called for. 7. The appeal is consequently dismissed. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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