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TMI Blog2016 (4) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A on 29.10.2002. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in holding that gain/ loss on account of share transaction where the holding period is less than 30 days constitutes business income / loss, as against the capital gain / loss claimed by the appellant. 3. The ld. CIT(A) further erred in not following the order of his predecessor for assessment year 2008-09, dated 1.6.2012, wherein the issue had been decided in favor of the appellant. 4. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in upholding the disallowance of (Rs. 20,530/- AY 2006-07; Rs. 83,609/- AY 2007-08; 43,312/- AY 2008-09 & Rs. 52.814/- AY 2009-10), u/s. 14A in assessment of the I.T. Act, 1961. 5. The appellant may kindly be allowed to raise any additional ground in the course of hearing of the appeal." 3. The common grounds raised in all the 4 Revenue's appeals read as under:- "1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in directing the AO to treat the gain on shares as short term capital gain, if the period of holding the shares by the assessee company was more than 30 days and gain on shares as busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income or property discovered in the course of search and as such are bad in law being beyond the scope of jurisdiction u/s. 153A of the I.T. Act. In order to support his case, Ld. Counsel of the assessee draw our attention towards the assessment order pages 1, 2 & 7 and the impugned order of the Ld. CIT(A) page no. 1 & 2. He stated that during the search and seizure operation, no documentary evidence has been found by the Investigation Wing of the Department on the issue in dispute. The Search and Seizure operation u/s. 132 of the I.T. Act was conducted by the Investigation Wing of the Department on 22.3.2011 in the case of Amtek Group of cases and the assesse was also covered under the search which is a group Company of Amtek Group. He further stated that during the year under consideration the Company has not conducted any business in real estate, but engaged in sale / purchase of shares. During the course of assessment proceedings, the AO found that assessee has made the investment of Rs. 3,23,05,820/- in shares and has earned dividend income of Rs. 7,29,200/- on account of investment and he applied the provisions of Section 14A of the Act which is not based on the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of search and seizure operation u/s. 132 of the Act in the case of the assessee. Under the circumstances, we find that the issue is covered in favour of the assesee and against the Revenue by the decision dated 28.8.2015 of the Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla passed in ITA No. 707, 709 and 713/2014 wherein the Hon'ble High Court has held has under:- "37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned ITA Nos. 707, 709 and 713 of 2014 of decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six Ays immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminating material found during the search and seizure operation and the addition in this case was purely based on the material already available on record. Hence, the addition in the case is deleted and the ground raised by the assessee in the appeal is allowed. 10. Following the consistent view in assessment year 2006-07 in Appeal no. 5688/Del/2013, as aforesaid, the other Appeals of the Assessee being ITA No. 5689, 5690 & 5691/Del/2013 (AYrs 2007-08, 2008-09 & 2009-10) stand allowed. 11. Revenue's Appeal No.6326/Del/2013 - Assessment Year 2006-07 The only issue raised in the Appeal of the Revenue is that Ld. CIT(A) has erred in directing the AO to treat the gain on shares as short term capital gain, if the period of holding the shares by the assessee company was more than 30 days and gain on shares as business income, if the holding period is upto 30 days. We find that Ld. CIT(A) has adjudicated this issue as under:- "I have considered the entire facts of the case. In fact, I have decided the appeals on similar facts in the associate concern of the appellant namely M/s Dreamland Buildtech (P) Ltd. for various assessment years (namely......) relying on the decision of CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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