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TMI Blog2012 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... eals), Jalandhar dated 29.01.2009 relating to assessment year 2005-06 against the order passed u/s 143(3) the Income Tax Act, 1961. 2. The assessee has raised the following ground of appeal 1. That the Worthy Commissioner of Income Tax(Appeals), has erred in giving directions to assess income from sale and purchase of shares in respect of shares bought on or after 08.12.2004 as trading activity. 2. That the income from sale and purchase of shares as per directions of the CIT (A) assessed as business income against short term capital gain income shown by the assessee is against the facts and circumstances of the case and without considering our submission properly. 3. Without prejudice to above, the Worthy CIT (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 were held to be in the nature of income from capital gain. 4. The assessee is in appeal against the said direction of the CIT (Appeals). The learned A.R. for the assessee after taking us through the order of the Assessing Officer pointed out that the assessee is not engaged in any trading activity in shares. Our attention was drawn to the Paper Book filed with computation of income at page 2 of the Paper Book in which it was pointed out that the assessee is a partner with M/s Eastman International and M/s R.K.Cloth Mills and is managing the business on day to day basis. The learned A.R. for the assessee pointed out that from the list of share transactions placed at page 11 onwards of the Paper Book, it transpires that there wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n addition, the assessee had declared income from capital gain on account of both long term and short term and income from other sources. The assessee in addition, had declared speculative loss on sale of shares, which was not claimed as set off against the total income. The details of the short term capital gain are furnished at pages 7 to 9 of the Paper Book and the total gain shown by the assessee after set off of the losses on sale of shares of Indraprastha Gas Ltd. is Rs.19,34,303/-. The assessee had shown short term capital gain in sale of shares of nine companies though the quantity purchased by the assessee and its value was higher. On the other side we have to consider the fact that the assessee from year to year is investing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estment. In the totality of the facts and circumstances of the assessee we are of the view that the assessee having made investment in the purchase of shares, the gain arising from the sale of the said shares is to be included under the head income from capital gain in the hands of the assessee. The order of the CIT (Appeals) in directing the purchases made after 8.12.2004 to be assessed as income from business, cannot be sustained and dismissing the same we hold that the total short term gains shown by the assessee during the year are to be assessed under the head income from capital gain . The ground Nos.1 and 2 raised by the assessee are allowed. 7. In view of our allowing the ground Nos. 1 and 2 of the appeal, the alternate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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