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TMI Blog2017 (6) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... loss of PMS Account was also considered as part of the business activity. Whereas looking the facts and circumstances of the case such income cannot be a business income where assessee has least role to play in day-to-day transaction of funds. As assessee has filed its return after due date that cannot be sole criteria for rejecting the claim of the assessee. In our opinion assessee’s claim for carried forward of loss cannot be rejected. Therefore, we allow the appeal of assessee. - I.T.A. No. 1413/Ahd/2013 - - - Dated:- 29-5-2017 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER For The Appellant : Shri U.S. Bhati, A.R. For The Respondent : Shri P.S. Choudhary, Sr.D.R. ORDER PER SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the total holding of the securities belonging to any person. 'Portfolio Manager' means any person who pursuant to a contract or arrangement with a client, advises or directs or undertakes on behalf of the client [whether as a discretionary Portfolio Manager or otherwise] the management or administration of a portfolio securities or the funds of the client as the case may be. From the definition of 'Portfolio Manager' it is clear that portfolio manager acts like an agent who buys and sells shares on behalf of the Individual. The portfolio manager devotes sufficient time in reshuffling the shares on hand in line with changing dynamics of the market It prevents holding of dormant or stocks of depreciating value. The PMS provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itely make entry in his books of account as investment in PMS. But he is not aware of the transactions in the shares being entered into by the portfolio manager on his behalf as his agent. The portfolio manager charges his fee for the services rendered and other expenses incurred on the same lines as is done in a case where the agent charges from the his principal. Since the assessee comes to know about the purchase and sale of shares under PMS after the expiry of a period of three months, the accounting treatment in the books of the assessee in respect of shares purchased/sold by the portfolio manager under PMS cannot be entered in the books of the assessee. It is at the end of year the shares available in the DEMAT account can be entere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A g) Ignoring the CBDT Circular No.4 of 2007 dated 15-6-2007 which is squarely apply to your appellant considering as trading of shares as your appellant's intention to purchase the shares was solely and exclusively with intention to resell at a profit and your appellant has no intention of holding the shares for himself or otherwise enjoying or using it for long term period. Moreover, your appellant had dealt with heavily and extensively in shares and securities during the year under consideration. Your appellant had made investment under PMS. The profit has not arisen directly from the deposits made but from the securities purchased from such deposits, which were traded by the portfolio manager on behalf of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a vs. Department of Income-tax and Seema Ajay Ranka vs. Department of Income-tax. Zerox copies of both the judgments are enclosed herewith. Annex. A1 b) ITAT Delhi Bench decision in the case of M/s. Radials International Vs. ACIT, Circle 27(1), New Delhi. Zerox copy of the said judgement is also enclosed herewith. Annex. B c) ITA T Hyderabad Bench 'A Asstt. Commissioner of Income-tax vs. Anilkumar Jain. Annex. C d) ITAT Indore bench, Indore Shri Anurag Vijayvargiya vs. Asstt. Commissioner of Income-tax 5. Both on factual and legal grounds, no case is made out for considering the financial as well as share trading transaction as short term capital gain/loss considered by the learned Asstt. Comm. of I.tax and rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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