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2014 (2) TMI 505 - ITAT MUMBAIProfits from sale of shares treated as STCG against Business income – Held that:- The assessee showed profit from the transfer of shares as Long term capital gain and Short term capital gain which was assessed by the Assessing Officer as such in assessment made u/s 143(3) of the Act - This shows that the assessee held and declared the shares as `Investment' and this stand came to be accepted by the Revenue - different treatment cannot be given in the previous year relevant to the assessment year under consideration – Relying upon CIT vs. Gopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT] – the view approved in which the principle of consistency was followed and the profit from transfer of shares was accepted as capital gain on the strength of similar view taken and accepted in the earlier orders – the CIT(A) has taken an unimpeachable view on the issue and the order is upheld – Decided against Revenue. Nature of F/O losses – Business loss OR Speculative loss – Held that:- The decision in CIT v/s Bharat R. Ruia (HUF) [2011 (4) TMI 37 - BOMBAY HIGH COURT] followed - the loss on account transactions in derivatives is speculative up to A.Y. 2005-06 and further that the insertion of clause (d) to the proviso to the section 43(5) is prospective and hence applicable from assessment year 2006-07 - As the assessment year under consideration is prior to the insertion of clause (d) – the order of the CIT(A) set aside and the order of the AO restored – Decided in favour of Revenue. Income treated as Business Income istead of STCG – Held that:- The assessee continued to make investment in shares as was done in earlier years and earned Long term/ Short term capital gain - Both the sides are in agreement that the facts and circumstances of this issue are mutatis mutandis similar to those for the assessment year 2005-06 - While disposing of the appeal for the A.Y.2005-06, the similar amount should be considered as Short term capital gain instead of `Business income' –the order of the CIT(A) set aside and the AO is directed that transfer of shares to be treated as Short term capital gain and not as `Business income’ – Decided in favour of Assessee.
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