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2014 (5) TMI 441 - HC - Income TaxTreatment of income as business income instead of long term capital gain Exemption u/s 10(38) - transactions in shares - Held that - None of these facts are disputed neither the dates are disputed nor the nos. of shares nor the price of sale or purchase revenue has also not attempted to upset the finding of the CIT(A) inasmuch as that the assessee was maintaining two separate portfolios one for Investment and one for business - the finding that there was no intermingling of shares in the two portfolios and that the two were separate and distinct has also not been shown to be incorrect on facts - Relying upon CIT v. Sutlej Cotton Mills Supply Agency Ltd. 1975 (7) TMI 2 - SUPREME Court all along the assessee demonstrated that she had an intention to maintain two separate portfolios wherein there was no mixing up in the two portfolios remains unrebutted on record as nothing to the contrary has been placed by the Revenue - there is no intermingling of shares in the two portfolios has been verified by the CIT(A) after considering the balance sheets of the last 7 years and also the P&L A/c no substantial question of law arises for consideration –- Decided against Revenue.
Issues:
1. Treatment of Rs.70,77,375 as long term capital gain under Section 10(38) of the Income Tax Act. 2. Dispute regarding the nature of income - business income or capital gain. 3. Interpretation of the law applicable to determine business income or capital gain. 4. Appeal against the ITAT order dismissing Revenue's claim. Issue 1: Treatment of Rs.70,77,375 as long term capital gain: The Revenue challenged the ITAT's order treating Rs.70,77,375 as long term capital gain under Section 10(38) of the Income Tax Act. The Assessing Officer initially considered it as business income due to the assessee's share trading activities. However, the CIT (A) reversed this decision after analyzing the nature of share holdings, purchase and sale dates, and the separate investment account maintained by the assessee. The CIT (A) referred to previous assessment years' returns, balance sheets, and profit and loss accounts to establish a consistent pattern of maintaining separate portfolios for investments and business. The CIT (A) applied relevant legal principles and CBDT Circular No.4/2007 to conclude that the income should be classified as long term capital gain. Issue 2: Dispute regarding nature of income: The ITAT dismissed the Revenue's appeal, emphasizing that the assessee maintained two separate portfolios for investment and business, with no intermingling of shares. The ITAT found no evidence disputing the facts related to the sale of shares or the holding period. The Revenue failed to challenge the findings regarding the separate portfolios and the consistent practice of the assessee over the years. The ITAT held that the Revenue's arguments lacked substance and did not provide any contradictory evidence to support their claim of intermingling of shares or improper classification of income. Issue 3: Interpretation of applicable law: The High Court reviewed the ITAT's decision and found it in line with established legal principles, citing precedents like CIT v. Sutlej Cotton Mills Supply Agency Ltd. and Commissioner of Income Tax v. H. Holck Larsen. The Court concluded that the ITAT's reasoning was consistent with the law declared by the Supreme Court in previous judgments, supporting the classification of income as long term capital gain based on the facts and circumstances of the case. Issue 4: Appeal against ITAT order: The High Court, after careful consideration, held that there was no substantial question of law for their consideration. The Court noted that the ITAT's decision was based on a thorough analysis of the facts and legal principles, including the CIT (A)'s findings. The Court dismissed the appeal as devoid of merit, affirming the ITAT's order regarding the treatment of income as long term capital gain.
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