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2018 (1) TMI 714 - AT - Income TaxProfit from sale of shares - Capital Gain or Business Income - CIT-A decided the issue in favour of the assessee holding the profits derived on sale of shares as long term or short term capital gain - Held that - Identical issue arose in the case of the assessee firm for assessment year 2008 09 2015 (3) TMI 1310 - ITAT DELHI wherein held that CIT(A) has exhaustively and extensively dealt with the issue and after verification of all, has arrived at the conclusion about the head of income under which the income needed to be assessed. From the facts, we find that assessee had classified the shares in its balance sheet as investment. The holding period for a number of scripts exceeds 365 days. The shares were not purchased but were contributed by partners as their part of capital. In view of the above facts and circumstances, we do not find any infirmity in the order of Ld. CIT(A) and therefore, appeal filed by Revenue is dismissed.
Issues Involved:
1. Classification of income from the sale of shares as Capital Gain or Business Income. 2. Assessment of the assessee's activities as business or investment. 3. Application of CBDT Circular No. 4/2007. 4. Allegation of using a colorable device to avoid taxes. Detailed Analysis: 1. Classification of Income from Sale of Shares: The primary issue is whether the profit from the sale of shares should be classified as Capital Gain or Business Income. The Revenue argued that the assessee was engaged in trading shares as a business activity, reflecting in the Partnership Deed and the organized and regular manner of transactions. The CIT(A) directed the AO to assess the profit under Capital Gain, which the Revenue contested. 2. Assessment of Assessee's Activities: The Revenue contended that the assessee's activities constituted a business due to the organized and regular nature of transactions and high turnover (?72.74 crores in AY 2010-11 and ?225 crores in AY 2011-12). The AO argued that the assessee used a colorable device to avoid taxes by showing income under Capital Gain. The CIT(A) held that the activities were investment-related, not business, and the income should be taxed as Capital Gain. 3. Application of CBDT Circular No. 4/2007: The Revenue cited CBDT Circular No. 4/2007, which provides guidelines for classifying transactions as business activities based on the substantial nature of the transactions. The AO used this circular to argue that the assessee's transactions were business activities. However, the CIT(A) favored the assessee, considering the nature of transactions and previous judgments. 4. Allegation of Using a Colorable Device: The AO alleged that the assessee used a colorable device to avoid taxes, citing the partnership's formation and the nature of transactions. The AO emphasized that the partnership was created to avoid higher taxes by showing income as Capital Gain. The CIT(A) disagreed, stating that the assessee's activities were genuine investments for long-term appreciation. Judgment: The Tribunal, considering the facts and circumstances, upheld the CIT(A)'s decision, noting the similarity with the assessee's case for AY 2008-09, where the Tribunal had ruled in favor of the assessee. The Tribunal found no deviation in the facts and circumstances compared to the previous decision. Consequently, the appeals of the Revenue for both assessment years were dismissed, confirming that the profits from the sale of shares should be taxed as Capital Gain, not Business Income. Conclusion: The Tribunal concluded that the assessee's activities were investment-related, and the income from the sale of shares should be classified as Capital Gain. The appeals of the Revenue were dismissed, and the CIT(A)'s order was upheld.
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