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2013 (10) TMI 548 - ITAT MUMBAIBusiness income or capital gain - Transaction in shares - Taxed short term capital gain @ 30% - Held that:- assessee has specifically stated investment in shares at Rs.55,94,573 and has shown in the current assets the stock in trade of Mutual Fund. However, assessee has also stated specifically in the profit and loss account, details of long term capital gain, short term capital gain and speculative dealings in shares, besides showing interest and dividend income by the assessee in the assessment year under consideration. Further, it is also observed that assessee is maintaining separate details in respect of shares, held by the assessee under the head 'stock-in-trade' and shares held under the head 'investment' - authorities below have not accepted the profit shown by the assessee as short term capital gain mainly for the reason that in respect of some of the shares, the period of holding was small and also considering number of scripts, in which transaction took placed in the assessment year under consideration - The department has not disputed the fact that assessee has not used any borrowed funds for the purpose of purchase of shares and same is also fortified on perusal of profit and loss account, that no interest has been claimed towards expenses - mere volume of transaction does not mean that assessee is a trader. The intention with which purchase has been made has to be seen. It is held that if in earlier year, the department has treated the assessee as an 'investor', it cannot take a different view in subsequent year - in assessment year 2004-05, assessee has shown short term capital gain as well as long term capital gain and department while making the assessment u/s.143(3) of the Act vide order dated 11.8.2006, copy placed on record, accepted the capital gain shown by the assessee - Following decision of Gopal Purohit vs JCIT [2009 (2) TMI 233 - ITAT BOMBAY-G] - Decided in favour of assessee. Disallowance of telephone expenses - Held that:- disallowance of 20% of telephone expenses made by authorities below on the ground that some expenses are required to be made in regard to exempt income is on higher side. However, personal use of telephone is not ruled out. Hence, disallowance of expenses reduced to 10%.
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