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2019 (6) TMI 432 - ITAT MUMBAIClassification of income - share trading as ‘business income’ or ‘capital gains’ share - STCG - Period of holding - HELD THAT:- It is settled law that there is no bar for the assessee to maintain two separate portfolios-one for investment and one for trading See GOPAL PUROHIT [2010 (11) TMI 222 - SC ORDER] The perusal of assessee’s personal Balance Sheet as placed on record would reveal that majority of the investments have been funded out of assessee’s own capital. The assessee has earned dividend income of ₹ 34.45 Lacs during impugned AY. Another pertinent fact to be noted that the assessee has income from garment business to the tune of ₹ 47.30 Lacs which would prima-facie, establish that share trading was not the only activity carried out by the assessee during impugned AY. Apart from this, the assessee was also carrying on the business of finance & investment in another proprietorship concern during impugned AY. The average holding period is more than 100 days. Further, the long-term gains earned on similar activity has been accepted by the revenue as Capital Gains only. Moreover, latest CBDT Circular No.6/2016, which is clarificatory in nature, applies to listed securities and directs AO not to disturb the stand taken by assessee provided the same is applied consistently. Hence, we find that there could not be any straight jacket formula to distinguish the same and further there cannot be any single decisive factor to determine the same but an overall view has to be taken keeping in mind peculiar facts and circumstances of the case. Accordingly, after weighing all the factors as cited above, we find ourselves in agreement with the submissions of Ld. AR and therefore, inclined to hold that the impugned gains were rightly offered as Capital Gains. By reversing the stand of lower authorities, we allow this ground of appeal. See GOPAL PUROHIT [2010 (1) TMI 7 - BOMBAY HIGH COURT] Disallowance u/s 14A - HELD THAT:- AR has submitted that in terms of decision of Delhi Tribunal (Special Bench) in ACIT Vs. Vireet Investment (P.) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] only exempt income yielding investments were to be considered to arrive at the said disallowance. Concurring with the same, Ld. AO is directed to compute the disallowance by considering those investments which have yielded exempt income during the year.
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