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TMI Blog2013 (1) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... s was more than two months - accordingly the income earned from PMS has to be assessed as capital gain - Decided as per assessees own case for the earlier years - Decided in favor of assessee - 5635/Mum/2009, 5641/Mum/2009, 5642/Mum/2009, 5636/Mum/2009 - - - Dated:- 23-1-2013 - SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER Appellant by : Shri Nitesh Joshi Respondent by : Shri O.P. Meena ORDER PER RAJENDRA SINGH, AM: These appeals have been filed by the assessee against different orders of CIT(A) all dated 3.8.2009 for assessment year 2006-07, 2006-07, 2005-06 and 2006-07 in case of the assessee s under reference. The identical disputes in all these cases is whether income earn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of PMS Manager. The AO thus, concluded that all activities of the assessee under PMS were an adventure in the nature of trade and accordingly assessed the income from PMS as business income. 3. In appeal CIT(A) agreed with the AO that the assessees had appointed portfolio manager for doing business in purchase and sale of shares on their behalf. CIT(A) also observed that the assessees while filing returns for assessment year 2003-04 had themselves treated receipts as business income and not capital gain. CIT(A), therefore, confirmed the order of AO in assessment year 2003-04. In subsequent years also, including the years in appeal, the AO had taken the same view and CIT(A) had confirmed the view taken by the AO for the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in their own cases. The ld. DR could not point out any distinguishing feature in the years under appeal with reference to appeals decided in the earlier years. 5. We have perused the records and considered the matter carefully. The identical dispute raised in these appeals is regarding the nature of income earned by the assessees from purchase and sale of shares through PMS . All these assessees have been making investments in shares and units of mutual funds for the last several years which had been declared as investment in the books and income from which was being declared as capital gain and was also being accepted by the department. From assessment year 2003-04 all these assessees started making investment through PMS by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004- 05 in ITA No.2122/Mum/2008. Similarly the same issue was decided by the Tribunal in case of Nalin P. Shah (HUF) in assessment year 2004-05 and 2005-06 in ITA Nos.2126/Mum/2008 and 4125/Mum/2008 in which the decision in case of Manan Nalin Shah (supra), was followed. Thus, issue raised in these appeals is covered by the decision of the Tribunal in assessees own case for the earlier years. No distinguishing feature have been brought to our notice by the ld. DR in these years with respect to factual position in the earlier years decided by the Tribunal. We, therefore, agree with the ld. AR that the issue raised is covered in favour of the assessee by the decision of the Tribunal in earlier years. We, therefore, respectfully following the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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