(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Assessee has challenged the judgment of the Tribunal dated 18.12.09 raising following questions for our consideration :
Whether, in the facts and circumstances of the case the Income Tax Appellate Tribunal was right in law in confirming the action of the respondent in taxing the transactions in shares/securities under the head 'Income from Business or Profession' instead of 'Income from Capital Gains'?
Whether, in the facts and under the circumstances of the case the Income Tax Appellate Tribunal was right in law in considering short term capital gains of Rs.40,64,989/- on account of sale of shares and on account of gains arising out of Portfolio Management Scheme (PMS) as Business Income instead of Capital Gains?
Whether, in the facts and circumstances of the case the Income Tax Appellate Tribunal was right in law in confirming the disallowance of legal and professional charges amounting to Rs.15,61,080/- by invoking the provisions of section 40A(2)(b) of the Act without giving any finding that the amount expended by the Appellant was unreasonable or excessive ?
Whether, in the facts and circumstances of the case the Income Tax Appellate Tribunal was right in law in confirming the ad hoc disallowance of telephone expenses, vehicle expenses and depreciation on vehicle amounting to Rs.1,10,153/- on the ground of personal use ?
Whether, in the facts and circumstances of the case the Income Tax Appellate Tribunal was right in law in excluding the net amount of export incentives and net amount of interest on margin money deposit from the profit of the industrial undertaking while computing the deduction u/s.80IB of the Act ?"
Counsel for the appellant pointed out that in so far as question Nos.(i),
(ii) and (iv) are concerned, they were subject matter of challenge before this Court in case of this very assessee in Tax Appeal No.1075 of 2009. He pointed out that question Nos.(i) and (ii) are being considered by this court in the said Tax Appeal whereas question No.4 was declined.
In so far as question No.(iii) is concerned, the same pertains to disallowance of sum of Rs.15.61 lacs by the Assessing Officer invoking the provisions of section 40A(2)(b) of the Income Tax Act, 1961. The Revenue authorities as well as the Tribunal concurrently found that son of the assessee who was an Engineering student at USA had not visited India during the relevant period and had not done any research work for Zydex Industries. Principally when on such factual finding, provisions of section 40A(2)(b) were invoked, we are of the opinion that the entire issue is factual in nature. Two authorities and the Tribunal concurrently found that there was no evidence to justify the expenditure, no question of law arises.
With respect to question No.(v), counsel for the assessee candidly stated that the issue would be covered against the assessee in view of the decision of the Apex Court in the case of Pandian Chemicals Ltd. v. CIT, 262 ITR 278 (SC).
In the result, appeal is admitted for consideration of question Nos.(i) and (ii) only.
To be heard with Tax Appeal No.1075 of 2009.
(Akil Kureshi J.) (Ms.Sonia Gokani, J.) (vjn) Top