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TMI Blog2024 (11) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment orders passed in AY 2015-16 and 2016-17. During the year under consideration, the AO has changed the head of income into Income from Business on the reasoning that the rent has been received under the name Licence fee and further, the objectives of the assessee included renting of properties. However, he has ignored the fact that the relevant properties have been shown as Investments by the assessee, meaning thereby, the assessee did not treat the relevant properties as its business assets. The nomenclature given to the rental receipts may not be relevant to determine the head of income. Hence both the reasoning given by the AO would fail. We notice that the Ld CIT(A) has also taken support of Principle of Consistency, which, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received or receivable during the relevant previous year. Since the decision rendered by Ld CIT(A) on this issue is contrary to the decision rendered by Hon ble jurisdictional Bombay High Court, the same cannot be sustained. - Justice (Retd.) Shri C.V. Bhadang, Hon ble President And Shri B.R. Baskaran, Hon ble Accountant Member For the Assessee : Shri Rajiv Khandelwal And Shri Akash Kumar For the Revenue : Ms. Mahita Nair, Sr.DR ORDER PER B.R. BASKARAN, A.M : The appeal filed by the Revenue and the cross objection filed by the assessee are directed against the order dated 02-02-2024 passed by Ld CIT(A), NFAC, Delhi and they relate to the Assessment Year (AY.) 2018-19. 2. The assessee is engaged in the business of trading in fabrics, Real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... During the year under consideration, the AO has changed the head of income into Income from Business on the reasoning that the rent has been received under the name Licence fee and further, the objectives of the assessee included renting of properties. However, he has ignored the fact that the relevant properties have been shown as Investments by the assessee, meaning thereby, the assessee did not treat the relevant properties as its business assets. Further, the nomenclature given to the rental receipts may not be relevant to determine the head of income. Hence both the reasoning given by the AO would fail. We notice that the Ld CIT(A) has also taken support of Principle of Consistency, which, in our view, cannot be faulted with in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stocks and shares, is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips: Provided that for the purposes of this clause- (a) a contract in respect of raw materials or merchandise entered into by a person in the course of his manufacturing or merchanting business to guard against loss through future price fluctuations in respect of his contracts for actual delivery of goods manufactured by him or merchandise sold by him; or (b) a contract in respect of stocks and shares entered into by a dealer or investor therein to guard against loss in his holdings of stocks and shares through price fluctuations; or (c) a contract entered into by a member of a forward market or a stock exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1956) or the Securities and Exchange Board of India Act, 1992 (15 of 1992) or the Depositories Act, 1996 (22 of 1996) and the rules, regulations or bye-laws made or directions issued under those Acts or by banks or mutual funds on a recognised stock exchange; and (B) which is supported by a time stamped contract note issued by such stock broker or sub-broker or such other intermediary to every client indicating in the contract note the unique client identity number allotted under any Act referred to in sub-clause (A) and permanent account number allotted under this Act; (ii) recognised stock exchange means a recognised stock exchange as referred to in clause (f) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red his decision following the above said provisions, which by way of deeming fiction has excluded the eligible transactions in respect of trading in derivatives from the definition of speculative transaction . Before us, the Revenue could not show any other contrary provision to demonstrate that the reliance placed by Ld CIT(A) on the provisions of sec.43(5) of the Act was wrong. The finding of fact given by the Ld CIT(A) with regard to the noting made in the broker note was also not proved to be incorrect by the Revenue. Under these set of facts, we do not find any infirmity in the order passed by Ld CIT(A) on this issue. 7. We shall now take up the Cross objection filed by the assessee. The only issue urged by the assessee is related to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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