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TMI Blog2012 (7) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... a different footing and complexion than the other transactions in the same scrip carried out during the year - Assessing Officer directed to treat the transaction of 5000 Tech Mahindra shares in the nature of investment and assess the same as short term capital gain and not business income - appeal of the assessee is allowed. - I.T.A. No. 641/PN/12 - - - Dated:- 28-5-2012 - SHRI SHAILENDRA KUMAR YADAV, SHRI G.S.PANNU, JJ. Appellant by: Shri Sanjay Kshirsagar Respondent by: Dr. Shri Santosh Kumar ORDER PER G.S.PANNU, AM This appeal by the assessee is directed against the order of the Commissioner of Income-tax (Appeals) V, Pune dated 22.02.2012 which, in turn, has arisen from order of the Assessing Officer dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the CIT(A) as assessable as short term capital gain and in respect of the transactions relating to the shares of Tech Mahindra, the same have been held by the CIT (A) to the assessable as business income. Against the action of the CIT(A) in treating transactions involving 5000 Tech Mahindra shares as business income, the assessee is in appeal before us. 4. Before us the Ld. Counsel for the assessee submitted that the assessee was an individual of 78 years old, and since retired from Lonavala Municipal Corporation that there was no background of carrying on of business. It is further pointed out that the assessee invested his own funds in shares and even with regard to the 5000 shares of Tech Mahindra purchased on 17/11/2006, the same we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was contended that the CIT(A) has wrongly not held that the transactions of 5000 Tech Mahindra shares was also as assessable as short term capital gains. 5. On the other hand, the Ld. DR appearing for the Revenue has pointed that the CIT(A) made no mistake in treating all the transactions of Tech Mahindra shares as business transactions in as much as the purchase of 5000 Tech Mahindra shares was not proved by the assessee to be for investment purposes. It was also pointed out that there was intermingling of various transactions in the scrip of Tech Mahindra in as much as the some of the transactions in Tech Mahindra have been admitted by the assessee himself as business transactions. In this manner, the decision of the CIT(A) in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on 17/11/2006 assessee purchased 5000 Tech Mahindra shares which were sold on 17/01/2007 and 09/02/2007, resulting in a profit of Rs.29,00,260/- . Apart there from there are other transactions involving smaller number of shares ranging from 600 shares to 1000 shares carried out on different dates. Two of the transactions on 08/12/2006 and 19/12/2006 respectively are intra-day transactions. Similarly transactions of 600 shares on 05/01/2007 were squared up on 10/01/2007 and 11/01/2007. The transactions of 1000 shares on 19/01/2007 was squared up 09/02/2007 and similarly the transaction of 500 shares on 29/01/2007 was squared up on the same day. The assessee has sought to distinguish the purchase of 5000 shares made on the 17/01/2006 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee as investment in nature. The aforesaid features clearly distinguish the purchase of 5000 Tech Mahindra shares effected on 17/11/2006. Therefore, having regard to the factual matrix and the material on record, in our view, the assessee has been able to demonstrate that transactions of 5000 Tech Mahindra shares stood on a different footing and complexion than the other transactions in the same scrip carried out during the year. As a result thereof we modify the order of the CIT(A) and direct Assessing Officer to treat the transaction of 5000 Tech Mahindra shares in the nature of investment and assess the same as short term capital gain and not business income. Accordingly, the assessee succeeds as above. 7. In the result, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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