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Issues Involved:
1. Whether the CIT(A) erred in not gathering particulars through the Assessing Officer or otherwise before adjudicating on share transactions. 2. Whether the CIT(A) should have upheld the Assessing Officer's order considering the high volume of transactions. 3. Whether the CIT(A) erred in holding that the transactions in shares are in the nature of adventure or trade. 4. Whether the CIT(A) should have applied the judgement of the Special Bench ITAT, Mumbai in the case of M/s. Daga Capital Management (P) Ltd., Vs. ITO in relation to transaction in shares and applied section 14A disallowing the expenditure towards exempted dividend income. Summary: Issue 1: Gathering Particulars Before Adjudicating on Share Transactions The CIT(A) accepted the assessee's claim of long term capital gain at Rs. 4,09,074/- and short term capital gain at Rs. 82,89,260/-, following the decision of Nagpur Bench of the ITAT in the case of Dineshbhai C. Patel (HUF) and the Mumbai bench of the ITAT in the case of Gopal Purohit Vs. JCIT. The CIT(A) observed that the AO built his case on a wrong premise, i.e., the period of holding, and concluded that shares held for a short period would not qualify as short term capital gain. Issue 2: High Volume of Transactions The Ld. D.R. contended that the number of transactions and continuous purchase and sale of shares indicate that the assessee was involved in trading in the share market. However, the Ld. A.R. argued that the shares were held as investments, shown in the balance sheet, and the income was derived mainly from salary. The Tribunal noted that the period of holding and number of transactions cannot be the only basis to determine whether the assessee has carried out the business in share transactions. Issue 3: Nature of Transactions in Shares The Tribunal referred to the decisions of the Hon'ble Supreme Court in CIT (Central), Calcutta vs Associated Industrial Development Company (P) Ltd. and CIT, Bombay vs H Holck Larsen, emphasizing that whether shares are held as investments or stock-in-trade depends on the intention and evidence provided by the assessee. The Tribunal concluded that the shares were held as investments, not as stock-in-trade, and the onus was on the revenue to prove otherwise. Issue 4: Application of Special Bench ITAT, Mumbai Judgment The Tribunal noted that the CIT(A) relied on the decision of the ITAT Nagpur bench in the case of Dineshbhai C. Patel (HUF), which was confirmed by the High Court. The Tribunal also referred to the decision in Gopal Purohit Vs. JCIT, where it was held that the period of holding cannot be the sole criterion to determine whether the share transaction is a business income or capital gain. The Tribunal confirmed the order of the CIT(A), stating that the decision of the coordinate bench, approved by the jurisdictional High Court, is binding. Conclusion: The Tribunal dismissed the appeals filed by the revenue, confirming the order of the CIT(A) that the gains from share transactions were to be treated as capital gains and not business income. The Tribunal emphasized that the period of holding and number of transactions alone cannot determine the nature of income, and the onus is on the revenue to prove that the shares were held as stock-in-trade.
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